Tacoma Harbor Lumber and Timber Co.

National Labor Relations Board - Board Decisions

May 20, 1954

108 N.L.R.B. 912 (N.L.R.B. 1954)

912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
votes cast, we shall certify that labor organization as the
exclusive representative of these employees. Further, inas-
much as the UTMA is the existing bargaining representative,
we find that the foregoing employees constitute a separate
appropriate unit.
[The Board certified the Union de Trabajadores del Muelle
y Almacenes de Punta Santiago (UTMA) as designated collective-
bargaining representative of the employees of the Employer,
Eastern Sugar Associates at Punta Santiago, in the unit of ware-
house stevedores found by the Board to be appropriate in Case
No. 24-RM-8.]
Case No. 24-RC-246
In the unit found appropriate by the Board in this proceeding,
there were approximately 18 eligible voters. No ballots were
cast for any participating labor organization, 17 ballots were
cast against any participating labor organization, and 1 ballot
was declared void. We shall therefore issue a certification of
results of election to that effect.
[The Board certified that a majority of the valid ballots was
not cast for International Longshoremen's Association, District
Council of the Ports of Puerto Rico (ILA) or Union de Empleados
de Muelles and that neither of the said Unions is the exclusive
representative of the employees pf the Employer in the unit
heretofore found by the Board to be appropriate in Case No.
24-RC-246.1
H. O. WHEELER AND E. L. BURNHAM, co-partners doing
business as TACOMA HARBOR LUMBER AND TIMBER
CO., and H. O. WHEELER, surviving partner, doingbusiness
as TACOMA HARBOR LUMBER AND TIMBER CO. and
JOSEPH E. WELCOME
LUMBER AND SAWMILL WORKERS UNION, LOCAL NO. 2758
and JOSEPH E. WELCOME. Cases Nos. 19-CA-.759 and 19-
CB-234. May 20, 1954
DECISION AND ORDER
On September 18, 1953, Trial Examiner David F. Doyle
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 Intermediate Report attached hereto. There-
after, Lumber and Sawmill Workers Union, Local No. 2758,
108 NLRB No. 127.
TACOMA HARBOR LUMBER AND TIMBER CO. 913
the Respondent Union, filed exceptions to the Intermediate
Report and a supporting brief; and the General Counsel filed a
document entitled "Report and Contentions."
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the Union's exceptions
and brief, the General Counsel's report and contentions, and
the entire record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner to the
extent that they are consistent herewith.
1. We agree with the Trial Examiner's findings that the
Respondent Company discriminatorily discharged Joseph E.
Welcome, and that the Respondent Union unlawfully caused the
discharge. In so finding, we also agree with the Trial
Examiner's conclusion that the Respondents' working agree-
ment did not validate the action of the Company in discharging
Welcome, or the Union's conduct in causing the discharge.'
As set forth in detail in the Intermediate Report, in Decem-
ber 1940 the Respondents executed a working agreement in
which the Company recognized the Union as the bargaining
representative of its employees. This agreement dealt with a
number of topics of the sort usually included in collective-bar-
gaining agreements. Thus the subjects of maximum hours of
labor, holidays, overtime rates for working on holidays, pay-
ments for time lost during working days, payments for short
shifts, grievances, seniority, strikes and lockouts, leaves of
absence , and access of a union business agent to the plant were
covered. The working agreement, however, contained no pro-
vision that specifically established general wage rates or re-
ferred to vacations, but it did recite that "no working rules
relating to hours, wages, or working conditions which are con-
trary to the terms and provisions of this Agreement shall be
promulgated, enforced, or attempted to be enforced. . . ."
Article I of the working agreement also recited that:
(b) . . . the Employer agrees that all present employees
who are now members of the Union and all employees who
hereafter become members of the Union, as hereinafter
provided for, shall pay their monthly dues to the Union as
required by the General Constitution of the United Brother-
hood of Carpenters and Joiners of America.
The Employer further agrees that if an Employee be-
comes delinquent in his monthly dues and the Employer is
so notified by the Union in writing and the Employer fails
to tender satisfactory payment to the Union of such de-
linquent dues within 15 days after such written notice has
'Our views set forth in the text with respect to the illegality of the Respondents' working
agreement render it unnecessary for us to pass upon the Trial Examiner's rationale with
respect to the effect of the working agreement.
339676 0 - 55 - 59
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been served upon the Employer, the Employer will, if
requested by the Union, release said delinquent member
from its service.
(c) Any new Employee hereafter employed by the Em-
ployer shall, after being so employed for twenty-one (21)
working days, apply for membership in the Union and pay
the regular initiation fee and thereafter the dues as re-
quired hereunder.
By its terms the working agreement was to "remain in full
force and effect as a continuing Agreement," unless terminated
upon notice. No notice specifically terminating the agreement
was ever given; nor were any changes ever made in the union-
security provisions or in the other provisions of the agree-
ment covering the various subjects described above.
As indicated, the working agreement was executed in Decem-
ber 1940. The Respondents, however, had in fact reached a
complete understanding with respect to its terms inSeptember
1940, but the actual execution of the agreement was postponed
for 3 months pending the settlement of a dispute that had arisen
over wages and vacations. As a result of this dispute, con-
currently with the execution of the working agreement, the
Respondents executed a strike -settlement Stipulation which
settled disputed issues concerning wages and vacations. There-
after, between 1942 and 1952, the wages of the Company's
employees were raised by oral agreement on 13 separate
occasions; 7 of such changes were made after 1947; the last
occurred on April 1, 1952. The negotiation of these wage in-
creases was effected, in each instance, after the Union, or a
district council on its behalf,2 had notified the Company that it
either "desired negotiations on wages according to the terms
provided for in our Working Agreement", or had requested
"immediate negotiations for a general wage increase under
the terms of the Working Agreement now in effect in your
operations," or had made its bargaining request "according to
the terms provided for in the Working Agreement now in effect
in your operations."
Welcome was hired by the Company on June 2, 1952. Shortly
thereafter, the Union's financial secretary spoke to Welcome
about joining the Union, pointing out that membership in the
Union was compulsory 21 working days after the beginning of
employment. Welcome did not join the Union, but instead pur-
chased work permits from the Union for the months of July,
August, September, October, and November, paying various
2 As set forth fully in the Intermediate Report, bargaining between the Respondents was, to a
large extent, carried on in their behalf on a regional basis by employer-groups and union
councils.
TACOMA HARBOR LUMBER AND TIMBER CO. 915
fees and assessments therefor. In mid-December, the member-
ship of the Union resolved to enforce the "mandatory joining"
provision. Shortly thereafter, upon the Union's request, the
Company discharged Welcome because he had not joined the
Union.
Neither at the time of Welcome's discharge, nor at any time
before, was the Union in compliance with Section 9 (f), (g), or
(h) of the amended Act.3
Obligations performed under a previously lawful collective-
bargaining agreement entered into before the enactment of the
Taft-Hartley Act are, by Section 102, immunized from the
statute's unfair labor practice provisions --'`unless such agree-
ment was renewed or extended " after such Act became effec-
tive .' The General Counsel argues that the seven wage changes
effected by the Respondents after the Taft-Hartley Act became
effective removed the working agreement from the protection
of Section 102. We agree.
It is apparent that the subject of wages was conjoined with the
working agreement even though wage rates were not set forth
specifically therein. The execution of the working agreement
in 1940 was originally delayed pending settlement of a dispute
over wages . Thereafter , a_ stipulation settling the wage dispute
and the working agreement were executed concurrently. The
working agreement itself provided against the promulgation of
rules relating to wages that were contrary to the agreement's
terms and provisions. The means employed by the Respondents
in effecting the various wage changes after 1940, including those
effected after 1947, make it clear that the Respondents them-
selves recognized a link between the working agreement and
the subject of wage rates. Thus, as indicated, these changes all
evolved from negotiations conducted pursuant to the working
agreement. Factually, therefore, the subject of wage rates, if
not itself an actual part of the working agreement , was, in our
opinion, so closely integrated with the agreement's substantive
provisions that the various changes in wage rates constituted sub-
stantive changes inthe agreement itself. It follows then, and we so
find, that the wage changes effected by the Respondents after the
Taft-Hartley Act became operative "renewed or extended" the
3 The Union came into compliance for the first time on November 2, 1953.
4Section 102 of the Taft-Hartley Act provides:
No provision of this title shall be deemed to make an unfair labor practice any act which
was performed prior to the date of the enactment of this Act which did not constitute an
unfair labor practice prior thereto, and the provisions of section 8 (a) (3) and section 8
(b) (2) of the National Labor Relations Act as amended by this title shall not make an unfair
labor practice the performance of any obligation under a collective-bargaining agreement
entered into prior to the date of the enactment of this Act, or (in the case of an agreement
for a period of not more than one year) entered into on or after such date of enactment,
but prior to the effective date of this title, if the performance of such obligation would not
have constituted an unfair labor practice under section 8 (3) of the National Labor Rela-
tions Act prior to the effective date of this title, unless such agreement was renewed or
extended subsequent thereto.
9 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working agreement , and removed it from whatever protection
it otherwise may have been entitled to under Section 102.5
Judged by the standards of Section 8 (a) (3) of the Taft-
Hartley Act, the union-security provisions of the Respondent's
working agreement were, when Welcome was discharged,
manifestly unlawful . In the first place, neither on the controlling
date when the working agreement was most recently renewed
--April 1, 1952, the date of the last wage change --nor within
the preceeding 12-month period , was the Union a complying
union within the meaning of the Act. 6 In the second place, the
agreement did not allow new employees the statutory 30-day
grace period in which to join the Union .7 In this connection,
the Respondents argue that the 21 -working day provision of
this agreement was equivalent to the 30 -day statutory period,
because Saturdays , Sundays, and holidays were considered by
them to be "overtime days, not working days ." Even were we
to concede the accuracy of the hypothetical arithmetical
computation underlying the Respondents ' agreement , we would
nevertheless be unable to accept it. For the form of union-
security authorized by the proviso to Section 8 (a) (3) stands as
an exception to the general statutory scheme prohibiting the
discriminatory treatment of employees , and, for this reason, the
plain 30-day language of the statute may not, in our opinion, be
distorted by different language requiring an involved and
equivocal construction in order to attain the same meaning.
As the union - security provisions of the Respondents ' working
agreement were unlawful , they cannot justify Welcome's dis-
charge for failure to join the Union. Accordingly , like the Trial
Examiner, we find that the Union violated Section 8 (b) (1) (A)
and (2 ) of the Act by causing Welcome's discharge ; and that
the Company violated Section 8 ( a) (1) and ( 3) by discharging
Welcome upon the Union ' s request.
2. As set forth above, the union-security provisions of the
Respondents ' working agreement were unlawful . The main-
tenance of these unlawful provisions , and their enforcement by
Welcome's discharge , constituted unfair labor practices. It
also appears that during the period from July 1952 to January
1953, because of the union - security provisions , sixemployees,
in addition to Welcome , were required by the Union to purchase
work permits in order to work for the Company . The enforce-
5 United Hoisting Co., Inc., 92 NLRB 1642, 1643, affirmed on the Section 102 point, 198 F.
2d 465, 468 (C. A 3), cert. denied 344 U. S. 914. The Broderick Company, 85 NLRB 708.
6Section 8 (a) (3) of the Act, as amended, authorizes an employer to sign a union-shop
agreement with a labor organization, "if such labor organization . . . has at the time the
agreement was made or within the preceding twelve months received from the Board a notice
of compliance with sections 9(f), (g), and(h) ...... This provision was enacted by the amend-
ment of October 22, 1951.
7Section 8 (a) (3) authorizes union-security provisions which "require as a condition of
employment membership therein[ in a labor organization] on or after the thirtieth day follow-
ing the beginning of such employment or theeffective date of such agreement, whichever is the
later ... .
TACOMA HARBOR LUMBER AND TIMBER CO. 917
ment of unlawful union-security provisions in this manner also
constituted unfair labor practices by the Union. Accordingly,
we find that by maintaining and enforcing the unlawful union-
security provisions in their collective-bargaining agreement,
the Company violated Section 8 ( a) (1) and (3) of the Act, and
the Union violated Section 8 (b) (1) (A) and (2).8
The Remedy
As we have found that the Respondents violated the Act by
maintaining and enforcing unlawful union - security provisions of
their collective -bargaining agreement , we shall order them to
cease and desist from performing or giving effect to such un-
lawful union-security provisions . We shall also order the Union
to cease and desist from its unlawful practice of requiring
employees to purchase work permits. As the Trial Examiner
recommended, we shall order that Joseph E. Welcome be of-
fered reinstatement and be made whole for any loss of pay
suffered.
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 that:
1. The Respondents, H. O. Wheeler and E. L. Burnham, co-
partners doing business as Tacoma Harbor Lumber and Timber
Co., and H. O. Wheeler , surviving partner, doing business as
Tacoma Harbor Lumber and Timber Co. in Tacoma, Washington,
their agents , successors , and assigns , shall:
(a) Cease and desist from:
1. Performing or giving effect to the unlawful union-security
provisions of their working agreement with Lumber and Saw-
mill Workers Union, Local No. 2758, or entering into or en-
forcing any extension , renewal, modification , or supplement
thereof, or any superseding agreement with the said Union,
containing union-security provisions , except in accordance with
Section 8 (a) (3) of the Act.
2. Encouraging membership in Lumber and Sawmill Workers
Union, Local No. 2758, or in any other labor organization of
their employees , by discriminating against their employees in
regard to their hire and tenure of employment , except to the ex-
tent permitted by Section 8 (a) (3) of the Act.
3. In any other manner interfering with, restraining, or
coercing their employees in the exercise of the rights guaran-
teed by Section 7 of the Act, including the right to refrain from
membership in Lumber and Sawmill Workers Union, Local No.
SN. L. R. B. v. F.H.McGrawandCo., 206F. 2d635(C.A. 6); Red Star Express Lines, etc. v.
N. L. R. B., 196 F. 2d 78 (C. A. 2); N. L. R B. v. Gaynor News Company, Inc. 197 F. 2d 719
(C. A. 2), affirmed 347 U. S 17; Boss Overall Cleaners, 100 NLRB 1210.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2758, 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.
(b) Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
1. Offer to Joseph E. Welcome immediate and full reinstate-
ment of his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges.
2. Jointly and severally with lumber and Sawmill Workers
Union, Local No . 2758, make whole Joseph E. Welcome, in the
manner set forth in the section of the Intermediate Report
entitled "The Remedy ," for any loss of pay he may have
suffered because of the discrimination against him.
3. Preserve and upon request make available to the Board or
its agents , for examination and copying , all payroll records,
social-security records, timecards , personnel records and
reports, and all other records necessary to determine the
amount of back pay due under the terms of this Order.
4. Post at their mill in Tacoma , Washington , copies of the
notice attached hereto and marked "Appendix A.s9 Copies of
said notice to be furnished by the Regional Director of the
Nineteenth Region shall , after being duly signed by the Re-
spondents ' representative , be posted by said Respondents
immediately upon receipt thereof and maintained by them for
sixty ( 60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are custom-
arily posted . Reasonable steps shall be taken by said Respond-
ents to insure that said notices are not altered , defaced, or
covered by any other material.
5. Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10 ) days from the date of this Order, what
steps they have taken to comply herewith.
II. The Respondent , Lumber and Sawmill Workers Union,
Local No . 2758, its officers , representatives , agents, succes-
sors, and assigns , shall:
(a) Cease and desist from:
1. Performing or giving effect to the unlawful union - security
provisions of its working agreement with Tacoma Harbor Lum-
ber and Timber Co., or entering into or enforcing any exten-
sion, renewal, modification , or supplement thereof, or any
superseding agreement with the said Company, containing union-
security provisions , except in accordance with Section 8 (a) (3)
of the Act.
2. Requiring employees of Tacoma Harbor Lumber and Tim-
ber Co , to purchase work permits from said Respondent Union.
9 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."
TACOMA HARBOR LUMBER AND TIMBER CO. 919
3. Causing or attempting to cause Tacoma Harbor Lumber
and Timber Co. to discriminate against its employees in vio-
lation of Section 8 (a) (3) of the Act.
4. In any other manner interfering with, restraining, or
coercing employees of Tacoma Harbor Lumber and Timber Co.
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 by Section 8 (a) (3) of
the Act.
(b) Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
1. Notify Tacoma Harbor Lumber and Timber Co., in writing,
that it withdraws all objections to the employment of Joseph E.
Welcome.
2. Jointly and severally with Tacoma Harbor Lumber and
Timber Co. make whole Joseph E. Welcome, inthe manner set
forth in the section of the Intermediate Report entitled "The
Remedy," for any loss of pay he may have suffered because of
the discrimination against him.
3. Post in conspicuous places in its business offices, and in
all places where notices to members are customarily posted,
copies of the notice attached hereto and marked "Appendix
B."10 Copies of said notice, to be furnished by the Regional
Director for the Nineteenth Region, shall, after being duly
signed by an authorized representative, be posted by Respondent
Union immediately upon receipt thereof and be maintained by it
for a period of sixty (60) consecutive days thereafter. Reason-
able steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
4. Mail signed copies of the notice attached hereto and
marked "Appendix B" to the Regional Director for the Nine-
teenth Region, for posting, Respondent Tacoma Harbor Lumber
and Timber Co. being willing, at the said Company's mill in
Tacoma, Washington, where notices to employees are custom-
arily posted. Copies of the notice, to be furnished by the
Regional Director for the Nineteenth Region, shall be returned
forthwith to the Regional Director after they have been signed by
an authorized representative of Respondent Union for such
posting.
5. Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
10See footnote 9, supra.
92 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT perform or give effect to the unlawful
union-security provisions of our working agreement with
Lumber and Sawmill Workers Union, Local No. 2758, and
we will not enter into or enforce any extension, renewal,
modification, or supplement thereof, or any superseding
agreement with the said Union, containing union-security
provisions, except in accordance with Section 8 (a) (3) of
the Act.
WE WILL NOT encourage membership in Lumber and
Sawmill Workers Union, Local No. 2758, by discriminating
in regard to the hire, tenure, or conditions of employment
of any of our employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them in Section 7 of the Act, except to
the extent that such rights maybe 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.
WE WILL offer Joseph E. Welcome immediate and full
reinstatement to his former or substantially equivalent po-
sition, and we will make him whole for any loss of earnings
suffered as a result of our discrimination against him.
All our employees are free to become, to remain, or to re-
frain 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 amended.
TACOMA HARBOR LUMBER AND TIMBER CO.,
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 ALL OFFICERS, REPRESENTATIVES, AGENTS,
AND MEMBERS OF LUMBER AND SAWMILL WORKERS
UNION, LOCAL NO. 2758, AND TO ALL EMPLOYEES OF
TACOMA HARBOR LUMBER AND TIMBER CO.
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
TACOMA HARBOR LUMBER AND TIMBER CO. 921
National Labor Relations Act, as amended, we hereby notify
you that:
WE WILL NOT perform or give effect to the unlawful
union-security provisions of our working agreement with
Tacoma Harbor Lumber and Timber Co., and we will not
enter into or enforce any extension , renewal, modification,
or supplement thereof, or any superseding agreement with
the said Company , containing union-security provisions,
except in accordance with Secticn 8 (a) (3) of the Act.
WE WILL NOT require employees of Tacoma Harbor
Lumber and Timber Co . to purchase work permits in
order to work for the said Company.
WE WILL NOT cause nor attempt to cause Tacoma
Harbor Lumber and Timber Co. to discriminate against
employees in regard to their hire or tenure of employment
or any term or condition of employment in violation of
Section 8 ( a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce
employees of any employer in the exercise of rights
guaranteed them in Section 7 of the Act, except to the ex-
tent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act,
as amended.
WE WILL notify Tacoma Harbor Lumber and Timber
Co. that we withdraw all objections to the employment of
Joseph E. Welcome.
WE WILL make whole Joseph E. Welcome for any loss
of earnings he suffered because of our discrimination
against him.
LUMBER AND SAWMILL WORKERS
UNION, LOCAL NO. 2758,
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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon separate charges, duly filed by Joseph E. Welcome, an individual , against the above-
named Company, herein called the Employer or the Company, and against Lumber and Sawmill
Workers Union, Local No. 2758, herein called the Local or the Union, the General Counsel
of the National Labor Relations Board, herein called respectively the General Counsel and
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board, caused the cases to be consolidated and issued a consolidated complaint dated
June 15, 1953, against the Company and the Union, collectively called herein the Respondents,
alleging violations of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act. Copies of the charges, the consolidated complaint, the order consolidating
the cases, and a notice of hearing were duly served upon the Company, the Union, and Joseph E.
Welcome, the charging party
Pursuant to notice a hearing was held on August 3 and 4, 1953, at Tacoma, Washington,
before the undersigned Trial Examiner, duly designated by the Associate Chief Trial Ex-
aminer The General Counsel, the Company, and the Union were represented by counsel,
participated in the hearing, and were afforded full opportunity to be heard, to examine and
cross-examine witnesses,' and to introduce evidence bearing on the issues. All parties were
offered an apportunity to argue upon the record and to file briefs The parties argued the
matter fully on the record and waived the filing of briefs
The Issues
The General Counsel contends that the Respondents violated the amended Act in that the
Company, onoraboutDecember29,1952, dischargedone of its employees, Joseph E Welcome,
at the request of the Union, because Welcome had failed to become a member of the Union,
and pay initiation fees and dues as required by the terms of a contract between the Union
and the Company
The Respondents contend that Welcome was discharged because(1) he was un unsatisfactory
employee and (2) he had not complied with a valid union-shop contract, executed prior to the
1947 amendment of the Act, which contract survived the amendment of the Act, by virtue
of Section 102 of the amended Act, as construed by the Court of Appeals, Ninth Circuit,
in Clara-Val Packing Co etc , 191 F 2d 556
As to the second defense, the General Counsel takes the position that the alleged union-shop
provision of the contract was invalid even under the Wagner Act, and that, if,judicially de-
termined to be a valid union-shop contract under the Wagner Act, the provision was not
validated by Section 102 of the amended Act, because the Union has never complied with
Section 9 (f), (g), and (h) of theamended Act, and because the parties had renewed and extended
the contract, thus taking it from the protection of Section 102 The General Counsel contends
that the decision in Clara-Val Packing Co , supra is not pertinent. i
Upon the entire record in the case and from my observations of the witnesses, I make the
following:
FINDINGS OF FACT
L THE BUSINESS OF THE EMPLOYER
Prior to May 13, 1953, H. O. Wheeler and E L. Burnham conducted business at the city
of Tacoma, Washington, as a partnership under the name and title of Tacoma Harbor Lumber
and Timber Co On the date mentioned, E L Burnham died, and thereafter H. O. Wheeler
continued the business under the same name as the^urviving partner and sole proprietor.
Upon the hearing, without objection, the name of H. O. Wheeler, doing business as the Tacoma
Harbor Lumber and Timber Co., was added to the complaint, as the successor-in-interest
to the partnership There was no contention by any party that the death of Burnham and the
change of ownership of the Company in any way affected the issues raised by the pleadings.
'Section 102. No provision of this titleshallbe deemed to make an unfair labor practice any
act which was performed prior to the date of the enactment of this Act which did not constitute
an unfair labor practice prior thereto, and the provisions of section 8 (a) (3) and section 8 (b)
(2) of the National Labor Relations Act as amended by this title shall not make an unfair
labor practice the performance of any obligation under a collective-bargaining agreement
entered into prior to the date of the enactment of this Act, or (in the case of an agreement
for a period of not more than one year) entered into on or after such date of enactment, but
prior to the effective date of this title, if the performance of such obligation would not have
constituted an unfair labor practice under section 8 (3) of the National Labor Relations Act
prior to the effective date of this title, unless such agreement was renewed or extended sub-
sequent thereto.
TACOMA HARBOR LUMBER AND TIMBER CO. 923
The Company maintains its principal office at Tacoma , Washington , where it engages
in the manufacture of lumber and lumber products in the course and conduct of its business
the Company manufactures annually lumber and lumber products valued in excess of $500,000,
of which more than 50 percent is sold and shipped to customers located in States other than
the State of Washington.
Upon the pleadings and stipulations in the record , I find that the Employer , both as a
partnership and as a proprietorship , is engaged in commerce within the meaning of Section
2 (6) of the Act.
IL THE UNION, ITS COMPLIANCE STATUS
Lumber and Sawmill Workers Union , Local No. 2758 , is a labor organization within the
meaning of Section 2 (5) of the Act . Upon the pleadings , the record , and a stipulation of the
parties, I find that the Union has never complied with Section 9 (f), (g), and (h) of the Act,
as amended.
Ill. THE UNFAIR LABOR PRACTICES
The history of labor relations between the Company and the Union was given by Mr M
John Muckey, manager of the Industrial Conference Board of Tacoma, Inc , herein called
the Conference, who was called as a witness by the General Counsel. His testimony, which I
credit, is undisputed in the record
A. Organizations concerned with bargaining in the Tacoma
bargaining in the Tacoma area
\luckey testified that in the Tacoma area some 400 employers are members of the Confer-
ence, which assists these members in collective bargaining and related matters The member-
employers are also members of the Lumberman's Industrial Relations Committee, which
performs a similar service for employers throughout a wider geographical area, North-
western Oregon and Western Washington, maintaining offices at Portland and Seattle These
two agencies constitute the employers ' representatives in the area
Local No. 2758, the Union here charged, is a component of Tacoma District Council, Lumber
and Sawmill Workers, A.F.L., which in turn is a component of the Puget Sound District Council,
which in turn is a component of the Oregon-Washington Council, all of the Lumber and Sawmill
Workers, A.F.L., a division of the United Brotherhood of Carpenters and Joiners of America,
A.F.L.
B. The execution of the working agreement,
December 10, 1940
'vtuekey testified that the employers and the unions in the lumber industry in the Tacoma
area first had contractual relations in 1936 However, this first contract terminated, and the
parties had no contract during the years 1938 and 1939 Therefore in July 1940, the em-
ployers represented by the Conference, and the various locals of the Lumber and Sawmill
Workers Union, A.F.L., in the Tacoma area, comprising the Tacoma District Council,
Lumber and Sawmill Workers, A. F. L., -undertook to negotiate a working agreement The
representatives of the Conference and the Tacoma District Council ultimately agreed upon the
terms of a working agreement early in September 1940. Agreement between the parties [lad
been reached, and the agreement reduced to writing, but not signed by either party, when a
strike occurred in the industry because of a disagreement between the parties on the subjects
of wages and vacations.
Muckey explained that both parties were ready to execute the working agreement, when
one segment of the employers granted a wage increase which precipitated a strike throughout
the Tacoma area. In that posture of negotiations, the working agreement was put aside, while
the parties negotiated on the subjects of wages and vacations After a strike and negotiations
of approximately 3 months, the parties agreed on wages and vacations on December 16,
1940 The parties executed a strike-settlement stipulation on wages and vacations, and then
executed the working agreement, previously set aside, dating it December 16, 1940
In the intervening years since 1940, the parties had misplaced or destroyed all copies of
the strike-settlement stipulation However, Muckey testified that according to his memory,
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the memorandum stated that the employees were to receive a raise of 5 cents per hour, and
a vacation with pay of 1 week
Muckey testified that the working agreement, executed December 16, 1940, had not been
changed or modified in any manner in the intervening years, from the date of its execution
to the date of the hearing. He also explained that the working agreement resulted from
negotiations of the Conference and the Tacoma District Council, and that the Puget Sound
District Council and the Oregon-Washington Council, and the Carpenters, had signed the
contract only to reassure some of the Tacoma area employers that the Tacoma District
Council was a responsible body. Some of the employers had expressed doubt on that point.
The working agreement dated December 16, 1940, is noteworthy in two respects. First,
though it deals with many conditions of employment, it contains no provisions as to wages
or vacations and makes no reference to those subjects, second, it contains a provision designed
to afford the union a form of security, which is the crux of the instant case.
The provision is article 1, of the document, entitled "Bargaining Agency." It reads as
follows:
(a) The Employer recognizes the Union as the properly constituted body for collective
bargaining for all of its employees at the Tacoma plant of the Employer company,
except foremen, superintendents, water scalers, office personnel, log buyers and other
employees for whom the Union has not heretofore bargained.
(b) The parties hereto believe that the purposes of this agreement, as stated in
paragraph 1 above, will be promoted if all the eligible employees of the Employer belong
to the Union and take an active interest in its affairs. The Union represents that all of
the eligible employees of the company are now members of the Union in good standing.
Therefore, the Employer agrees that all present employees who are now members
of the Union and all employees who hereafter become members of the Union, as here-
inafter provided for, shall pay their monthly dues to the Union as required by the General
Constitution of the United Brotherhood of Carpenters and Joiners of America
The Employer further agrees that if an Employee becomes delinquent in his monthly
dues and the Employer is so notified by the Union in writing and the Employee fails to
tender satisfactory payment to the Union of such delinquent dues within 15 days after
such written notice has been served upon the Employer, the Employer will, if requested
by the Union, release said delinquent member from its service
0
(c) Any new Employee hereafter employed by the Employer shall, after being so em-
ployed for twenty-one (21) working days, apply for membership in the Union and pay the
regular initiation fee and thereafter the dues as required hereunder.
C. The understanding of the parties as to wages; the
negotiation of wage raises
As to the relationship of the Tacoma District Council and the employers as to wages,
Muckey stated that there had developed a mutual understanding that wages were a subject
that could be opened for negotiation by either party at any time upon 30 days' written notice
to the other party. Muckey further testified that pursuant to this understanding the parties
had opened negotiations, and negotiated raises in wages on the following dates:
January 1, 1942 April 1, 1948
September 1, 1942 May 1, 1950
November 28, 1945 September 1950
April 1, 1946 March 1, 1951
December 6, 1946 May 1, 1951
April 1, 1947 April 1. 1952
January 1, 1948
Muckey testified that as far as he knew the decision to negotiate on the subject of wages
was made on the highest level of the Union, by the Northwestern District Council, which in
turn notified the Puget Sound District Council, who in turn notified the Tacoma District
TACOMA HARBOR LUMBER AND TIMBER CO. 925
Council, who in turn notified the employers in the industry in the Tacoma area. Several
copies of the notices sent by the Tacoma District Council to the Company were introduced
in evidence. 2 These notices state that the Tacoma District Council requests "immediate
negotiations for a general wage increase under the terms of the working agreement now in
effect in your operations ," or desires " to open negotiations on wages according to terms
provided for in the working agreement now in effect in your operations," or requests "im-
mediate negotiations for a general wage increase under the terms of our agreement."
D. The vacation contracts 1941 - 1947
Muckey further testified that in 1941 the Conference and the Locals in the Tacoma area,
acting through the Puget Sound District Council, executed a contract dealing with vacations.
This contract is dated March 7, 1941.3 Thereafter other vacation contracts were negotiated
and executed in 1942, 1943, 1944, 1945, and the present contract dated May 23, 1947.4 Muckey
testified that the contract dated May 23, 1947, had been effective and unchanged since that
date, althQugh he had been advised by the Tacoma District Council that it desired to open
negotiations on the subject of vacations by letter dated October 31, 1952. On November 3,
1952, Muckey, on behalf of the Conference, had replied to the Tacoma District Council
requesting a copy of proposed modifications. However, the subject appeared to have been
dropped by the Tacoma District Council at that point
E. The employment and discharge of Welcome
It is undisputed that with the relationship of the parties as outlined above, Joseph E.
Welcome was hired by the Company on June 2, 1952, and discharged on December 29, 1952.
As will appear from the testimony hereafter related, Welcome's discharge was requested
by the Union because he did not make application to join the Union and tender his initiation
fee and dues. For the sake of clarity in this report, here at the outset, I find that Welcome was
not an unsatisfactory employee, and was not discharged because of any inefficiency on his part.
I do not credit Superintendent Hitchcock's testimony that Welcome was discharged for frequent
absences, tardiness, or lack of interest in his work. It is evident that the defense of the
Respondents rests squarely upon the provisions of the working agreement of December 16,
1940, and that unless the provisions of that contract constitute a defense for their conduct,
they have committed the unfair labor practices alleged in the complaint.
As to the events of Welcome's employment and his termination, 4 witnesses were presented-
Welcome, Hamblin, financial secretary of the Union, Ash, president of the Union, and Hitchbock,
superintendent of the Company. There was little conflict in their testimony, and I have credited
the testimony of all 4, except as to those portions of their testimony which are inconsistent
with the findings herein From their composite testimony, the following facts appear
Welcome's hiring on June 2, 1952, was handled in a routine manner without any particular
significance In the second or third week of his employment he was approached by Hamblin,
financial secretary of the Union, who asked Welcome if he wanted to join the Union. Welcome
explained to Hamblin that hehadbeenhiredas a temporary worker, and was broke at the time.
Welcome asked Hamblin if he was required to join the Union. Hamblin replied that he couldn't
be forced to join the Union until after Welcome had worked on the job 21 working days, but
that Welcome should join the Union Hamblin then explained that if he didn't join, the Union
would permit him to work if he obtained a monthly work permit by paying the monthly dues
and assessments
On July 15 Hamblin again sought out Welcome, and as a result of this conversation Hamblin
issued a work permit to Welcome for the month of July Welcome paid Hamblin $ 3 75--$3 25
monthly dues and 50 cents as assessment for the strike fund. Thereafter Welcome continued
to work during the months of August and September, by obtaining a work permit for which he
paid $ 3.75. For an October permit, Welcome paid $ 4.75, becauseof an additional assessment
of $1 imposed for the purpose of sending delegates of the Local to a union convention
2General Counsel's Exhibits Nos. 4, 5, 6, 7, 8, 9, and 10.
3 General Counsel's Exhibit No. 11.
4General Counsel's Exhibit No. 12.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Welcome did not obtain his work permit for November until the 25th of that month, but on
that date he paid up and received his permit.5
During early December, Hamblin asked Welcome for the money for his December permit,
but Welcome told Hamblin that he was broke and would pay later in the month, on payday.
Apparently at about this time Welcome's delay in joining the Union came to the attention
of the membership of the Union. As will be noted hereafter, Welcome was only one of several
men who at that time were employed by the Company and permitted to work by the Union
pursuant to the permit system.
On December 12, 1952, the officials of the Local and the membership decided to take some
action in regard to Welcome and others who had not joined the Union. The Union's minutes
of the meeting of December 12, 1952, state that a resolution was moved, seconded, and
carried that the "Financial secretary be instructed to enforce mandatory joining of Local
after working 21 days in the mill." Pursuant to this resolution, the officers of the Local
instructed Hamblin to notify the permittees that after they had worked 21 days they should join
the Union.
Hamblin testified, and he was corroborated by Ash, president of the Union, that on December
15 or 16 the union officers notified Welcome of the resolution passed at the union meeting,
and informed Welcome that if he did not join the Union his employment would be terminated.
Welcome denied that this conversation took place, and testified that he had no warning of his
discharge until it actually took place, as hereafter described On the record as a whole, I
credit Welcome's testimony on this point. Among other things I deem it significant that in
Welcome's later discussions with Ash and the union committee, no one asserted that Welcome
had been given prior warning that the Union would force his discharge if he did not join.
On December 22 or 23, Ash took the matter of Welcome's employment up with Hitchcock,
the Company' s superintendent . Ash said to Hitchcock, "Al, in regard to Joe Welcome "
Hitchcock interrupted, saying, "In other words he is not welcome here." Ash said, "That is
it." Hitchcock then said, "Well, I'm about fed up with it too." On the date Ash spoke to
Hitchcock, Welcome was not at work, having voluntarily laid off.
On December 29, which was the next workday because of the intervening Christmas holidays
and the weekend, Hitchcock went to Ash early in the morning He said, "Joe Welcome came
out today and I am a little short . I put him to work " Ash said, "All right, the Union is not
that tight Let him put in his day."
When Welcome completed his work assignment late in the afternoon of that day, he asked
Hitchcock if the latter had anything else for him to do. With that, Hitchcock produced his
notebook and handed Welcome his paycheck, saying that the Company and Welcome had reached
the parting of the ways. Welcome asked him the reason for his discharge, if it had anything
to do with his work Hitchcock replied that it did not, that the Union had held a meeting and
passed a vote that they no longer wanted Welcome to work there because he had not joined
the Union. Welcome explained to Hitchcock that he had previously informed Hamblin that he
would join the Union after the first of the year, because at that time he would be financially
able to pay his initiation fee of $ 20 and his dues. Hitchcock told Welcome that there was
nothing that he could do about it, that the decision had been made by the Union
Welcome sat in his car for a few minutes and thought things over. Then he went back and
talked to Hitchcock, asking him if there were any members of the union committee around the
mill with whom he could discuss his discharge. Hitchcock told him that Hamblin was still
in the mill, but Welcome could not find Hamblin, so he went back and talked further with
Hitchcock. He asked Hitchcock if there was any other committee member that he could
contact that evening about his discharge. Hitchcock noted on a paper the name and address
of Ash, president of the Union, and gave it to Welcome, with the suggestion that he get in touch
with Ash. Welcome asked Hitchcock if his job would be waiting for him, provided he could
straighten out his difficulty with the Union. Hitchcock informed him that the job would be
waiting for him. Hitchcock also advised Welcome to call him after he had talked to Ash,
and inform him as to the decision of Ash.
That evening Welcome called on Ash Welcome told Ash that he had the money to pay his
initiation fees and dues, Welcomehad cashed his paycheck, and that he Was willing to pay what-
ever fees he had incurred since he began working in June, if that would help him out in retaining
5 It is not clear from the evidence that payment for the permit was due as of a certain day
each month, but the record supports the inference that Welcome was "slow" in paying for
his permit each month.
TACOMA HARBOR LUMBER AND TIMBER CO. 927
his job. Ash told him that there was nothing he personally could do, because he wasn't
authorized to do anything without the consent of the committee. Welcome asked if there was
any way a committee meeting could be arranged, and Ash informed him that he would call
a committee meeting the next morning, December 30, at the mill.
The following morning Welcome met with the committee of the Union at the mill. The
committee members told Welcome that they had discussed the matter of his discharge, that
he was through, there was nothing they could do about it. Welcome showed the committee
his receipts for work permits. Christensen, a member of the committee, said there was
nothing that they could do about it--the permits were merely a work permit for 30 days.
Welcome again produced the money for his initiation fees and dues, and offered it to the
committee, but they would not accept it welcome then went back to Hitchcock and related
to him the decision of the committee. Welcome asked Hitchcock if he would intercede with the
committee and attempt to straighten the matter out. Hitchcock said that he would talk to Ash,
and Welcome waited around for at least 45 or 50 minutes without again seeing Hitchcock.
Welcome then went to the offices of the Union and discussed the matter with Gordon, an officer
of the Union. Gordon offered to call Ash, but Welcome demurred because he had asked
Hitchcock to talk to Ash. Welcome then went back to the mill, where Hitchcock told Welcome
that he had talked to Ash and there was nothing that could be done about it Welcome then went
to the office of the mill and talked to Wheeler, one of the partners Wheeler said he was
surprised to hear that Welcome was discharged, that when he had signed Welcome's check
he thought that Welcome was making a draw on his pay.
As of that date Welcome's employment was terminated
F. Permit arrangement as to other employees
In the course of his testimony, Harold Hamblin, financial secretary of the Union, testified
that other employees of the Company had worked contemporaneously with Welcome pursuant
to the permit system. He issued work permits on the payment of dues and assessments
to David Gruber for the months of July, august, and September, to Robert Stolen for the month
of July; to Larry Hitchcock for the month of August, to Harry Long for November, to Leland
Anderson for November, December, and January; and to Ira Day for December and January
Concluding Findings
Upon the above facts, counsel for the parties have constructed arguments embracing a
host of legal problems dealing with the validity of the working agreement dated December 16,
1940, as a defense for the Respondents. However, I am not persuaded that a decision of some
of these legal propositions is required in the instant case As I view the facts, the contract
between the Company and the Union created no legal rights in the Respondents whereby the
discharge of Welcome was justified under either the Wagner Act or the Taft-Hartley Act.
The contract is dated December 16, 1940, and it has remained in effect, unchanged by the
parties, since that date. For that reason, we must first scrutinize the document to see if it
is an enforceable union-shop contract under the Wagner Act, and if this discharge is justified
by virtue of its terms. Then and only then, may we pass to further questions, all dealing with
the indefinite continuance of the contract by virtue of Section 102 of the amended Act as
construed in the Clara-Val case, supra .
Examination of the contract provisions discloses that it establishes neither a closed shop
nor a union shop, for it does not require either membership in the Union rior to hiring,
or membership in the Union after hiring In fact, the contract does not require that membership
in the Union be maintained even by those employees who were members at the time of its
execution The contract merely establishes a relationship by which the Employer will assist
the Union in the collection of dues in certain cases Nowhere in the contract is it stated that
membership in the Union, or the making of an application to join the Union, is a condition
of continued employment.
The contract by its terms provides (1) that all employees who are members of the Union,
or become members of the Union, shall pay their dues as required by the constitution of the
Union; (2) that if an employee becomes delinquent in his dues, and the Employer is so notified
by the Union in writing, and the employee fails to tender satisfactory payment to the Union
within 15 days after such written notice, the Employer will, if requested by the Umon, release
said delinquent from its service, (3) any new employee shall, after being employed for 21
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working days, apply for membership in the Union and pay the regular initiation fee, and
thereafter the dues as required.
Under the Wagner Act, the Board demanded that contracts setting forth closed-shop or
union-shop provisions be clear and unmistakable in their terms, on the sound principle that
an employee should not be deprived of his livelihood by virtue of an ambiguous document
In the Iron Fireman Manufacturing Company, 69 NLRB 19, the Board held that a contract
somewhat analogous to the contract here in question did not constitute a defense to a charge
of discriminatory discharge because membership in the union was not made a condition of
employment in the contract. The Board stated the principle, that the provisions of a contract
which are invoked to justify a discharge must clearly and unmistakably provide that em-
ployment is conditioned on the doing of a certain act, in the following language-
... We agree with the Trial Examiner's conclusion that the discharge of Adeline
Kirchem constituted a violation of Section 8 (3) of the Act. However, we are of the
opinion that this conclusion is properly premised upon the finding which we make, that
the alleged closed-shop provision did not, in fact, create a closed shop, and hence, cannot
constitute a defence to the discriminatory discharge.
The alleged closed-shop provision in question provides that:
All new employees who are employed by the Employer shall be given a trial period
of thirty days or less. If found satisfactory at the expiration of thirty days, they
shall make application to join the Union.
It is clear that the clause requires an employee found satisfactory at the expiration
of his 30-day trial period to make application to join the Union. but there is nothing that
states he must become a member of the Union, either at that time or at any other time.
Under ordinary rules of construction, the act of making application to join the Union at
the end of his 30-day trial period fulfills an employee's obligation under the clause,
and it is immaterial whether or not his application is favorably acted upon and,he is
accepted into membership in the Union. Moreover, the clause lays down no requirement
that an employee must remain a member of the Union during the life of the contract,
or for any length of time. Accordingly, there is a fatal omission from the clause of the
two essential requirements for a closed shop (1) that an employee must become a
member of the contracting union, and (2) must retain such membership during the life
of the contract, as conditions of employment. In view of the stringent requirements
of closed-shop provisions, it is not too much to require that the parties thereto express
the essentials of such provisions in unmistakable language.
The instant contract possesses the same fatal vices as the Iron Fireman contract. It does
not require that anemployee(1) must becomea member of the contracting union, and (2) must
retain such membership during the life of the contract, as conditions of employment. Nor
does it state that the making of application to join the Union is a condition of employment.
The paragraph relating to new employees is absolutely silent on what shall happen to new
employees if they do not make application to join the Union. Nowhere in the provision is it
stated that the Union may demand the discharge, and the Employer may discharge such re-
calcitrant new employee. Yet that is exactly what the Union and the Employer did in this case.
But it may be argued that paragraph (c) of the contract dealing with new employees must
be read in connection with paragraph (b) which gives the Union the right to demand the
discharge and the Employer the right to discharge employees in certain circumstances.
This contention does not justify the discharge either, for the right of the Union to demand
discharge and the Employer to discharge, is limited in paragraph (b) which specifies the
manner in which a lawful discharge may be accomplished -
if an employee becomes delinquent in his monthly dues and the employer is so notified
by the union in writing, and the employee falls to tender satisfactory payment to the
union . within 15 days after such written notice has been served on the employer,
the employer will, if requested . . release said delinquent member
Here, no written notice of any delinquency by Welcome was given by the Union to the Company,
and no period of 15 days' grace was afforded to Welcome by the Company. In fact, Welcome's
TACOMA HARBOR LUMBER AND TIMBER CO 929
discharge was effected, forthwith, upon demand of the Union and without any written notice
to the Company
Therefore, the action of the Union in inducing the Employer to discharge Welcome forthwith,
is not based on any right or obligation expressed in paragraph (c), and if paragraph (b) is
invoked to spell out the right to discharge, then the discharge was not accomplished in the
manner specified in paragraph (b) It is apparent, therefore, and I find, that the action taken
by both the Union and the Company was unauthorized by any term of the working agreement
Of course, the Board's decision in the Iron Fireman case precludes the argument that
Welcome's discharge was authorized by some provisionwhich is inferred from the document
as a whole, or is inserted in the document by judicial interpretation
In that posture of the case there is no necessity of deciding a host of intervening legal
propositions Even granting, arguendo, all the Respondents' arguments that (1) the contract
as a whole set up a permitted type of union-shop contract under the Wagner Act, and (2)
was validated by Section 102, as construed by the Court of Appeals, Ninth Circuit, in the
Clara-Val case, supra we still come out at the same door by which we entered--that the
parties accomplished Welcome's discharge in a manner entirely unauthorized by the contract.
Therefore I find that on December 29, 1952, the Respondent Union caused the Respondent
Company to discharge Joseph E. Welcome. The conduct of the Respondent Union constituted
a violation of Section 8 (b) (1) and (2) of the Act, and the conduct of the Respondent Company
constituted a violation of Section 8 (a) (1) and (3) 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 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 commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices, it will
be recommended that they cease and desist therefrom and that they take affirmative action
designed to effectuate the policies of the Act. It has been found that Respondent Company has
discriminated with respect to the hire and tenure of employment of Joseph E Welcome,
therefore it is recommended that it offer him full and immediate reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other rights and
privileges.6
Having also found that Respondent Union caused Respondent Company to discharge Joseph E.
Welcome, it is recommended that the Union notify the Company, in writing, that it has
withdrawn any and all objections to the employment of Welcome, and that it request the Com-
pany to offer Welcome immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority or other rights and privileges.
Inasmuch as it has been found that both Respondents are responsible for the discrimination
suffered by Welcome, it is recommended that they jointly and severally make him whole for any
loss of earnings suffered by reason of the discrimination against him.? The liability of the
Union for back pay shall be tolled 5 days after it notifies the Company in writing that it has
withdrawn its objections to the employment of Welcome. S Said loss of earnings shall be
computed on a quarterly calendar basis in accordance with the formula adopted by the Board
in F. W. Woolworth Co., 90 NLRB 289.
In view of the nature of the unfair labor practices, the commission of similar unfair labor
practices may be anticipated, the undersigned will therefore recommend that Respondents
cease and desist from infringing in any manner upon the rights guraanteed in Section 7 of the
Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the
undersigned makes the following:
6 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
7 Squirt Distributing Co., 92 NLRB 1667.
6Pinkerton's National Detective Agency, Inc., 90 NLRB 205.
339676 0 - 55 - 60
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Lumber and Sawmill Workers Union , Local No. 2758, is a labor organization within the
meaning of Section 2 ( 5) of the Act
2. By discriminating in respect tothehireand tenure of employment of Joseph E. Welcome,
thereby encouraging membership in Respondent Union , Respondent Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Oct
3. By interfering with, restraining , and coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act, Respondent Company has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By attempting to cause and causing Respondent Company to discriminate against Joseph
E Welcome in violation of Section 8 (a) (3) of the Act, Respondent Union has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
5 By restraining and coercing employees in the exercise of the rights guaranteed by
Section 7 of the Act, Respondent Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( b) (1) of the Act
6. The aforesaid unfair labor practices areunfair labor practices affecting commerce within
the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
MIDLAND RUBBER CORPORATION and OIL WORKERS IN-
TERNATIONAL UNION , CIO, Petitioner . Case No., 21-RC-
3334 . May 20, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Arthur Hailey,
hearing officer . The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby
affirmed.
1. The Employer is engaged in commerce within the meaning
of the National Labor Relations Act.
2. The labor organization involved claims to represent em-
ployees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6)'and ( 7) of the Act , for the
following reasons:
The Employer and the Intervenors contend that a contract
executed on March 5, 1953 , and extending by its terms from
October 2, 1952 , to January 31, 1955, is a bar to the petition
herein, which was filed on September 28, 1953 . The Petitioner
alleges the contract is invalid because , generally , ( 1) it was
not properly executed , and (2 ) the Intervenor is not a party to
the contract.
i International Union of Operating Engineers , Local 501, AFL.
108 NLRB No. 128.