United Hoisting Co., Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1951

92 N.L.R.B. 1642 (N.L.R.B. 1951)

In the Matter of UNITED HOISTING CO., INC. and EDWIN H. HUEGEL
In the Matter of LOCAL No . 15 C, INTERNATIONAL UNION OF OPERATING
ENGINEERS, A. F. OF L. and EDWIN H. HUEGEL
Cases Nos. 2-CA--585 and 2-CB-183. Decided January 26, 1951
DECISION AND ORDER
On July 13, 1950, Trial Examiner Earl S. Bellman issued his Inter-
mediate 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 Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions to the Intermediate Report and. supporting briefs.
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 Inter-
mediate Report, the Respondents' exceptions and briefs, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the modifications and
additions set forth below.'
The Respondents' requests for oral argument are hereby denied as
the record, the exceptions, and the Respondents' briefs, in our opin-
ion, adequately present the issues and the positions of the parties.
1. The Respondent Union and the trade association of which the
Respondent Company is a member executed the contract herein in-
volved on June 18, 1947, before passage of the amended Act. The
contract contained provisions requiring union membership as a con-
dition of employment. Article XI of the contract, entitled "DURA-
TION," reads as follows :
This agreement enters into force on April 1st, 1947, and shall
continue in force until changed by agreement between the parties.
No change shall be made'prior to DECEMBER 31st, 1948, and
I The Respondents have excepted to the Intermediate Report on the ground that the
General Counsel ' s case was presented by a legal assistant to one of the Board Members.
We find no merit in this exception as, at the time of the hearing , the legal assistant had
been transferred to the staff of the General Counsel in the Regional Office, and was under
the general supervision of the General Counsel, as required by Section 3 (d)- of the Act.
92 NLRB No. 243.
1642
UNITED HOISTING CO., INC. 1643
not then unless written notice asking that changes be considered
is given by one party to another on or before NOVEMBER 1st,
1948, by registered mail.
On April 1, 1948, after passage of the amended Act, the Respond-
ent Union and the association executed a document entitled "AD-,
DENDA," which states that Article XI of the contract of Julie. 18,,
1947,
... is hereby modified to the extent that the said Article may
be amended sooner than December 31, 1948, to wit, April' 1,
1948, and that the said amendment shall be limited to the follow-
ing mutually agreed upon provisions which shall be incorporated
in and made a part of the aforesaid agreement.
As set forth in the Intermediate Report, the addenda made several
substantive revisions in the 1947 agreement.. The addenda alsa
provided that: -
Article XI is hereby amended to provide that no change shall
be made prior to December 31, 1950, in lieu of the present re-
quirement providing for no change prior to December 31, 1948.
The Trial Examiner found that by executing the addenda, the
Respondents removed the agreement of June 18, 1947, from the pro-
tection of Section 102 of the Act.'- We agree.
The Respondents contend that the addenda continued the June
1.947 agreement "in full force and effect." The original agreement
provided that it "shall continue in force until changed by agreement
of the parties," and that "no change shall be made prior to December
all 1948." It is apparent that the original agreement provided or a
definite term at least until December 31, 1948, and for extension for
an indefinite term thereafter. Prior to that date, however, the parties,
by agreement, made substantive changes in the provisions of the orig-
inal contract and amended the original duration article to provide
that "no change shall be made prior to December 31, 1950." We find
that this action of the parties withdrew the original contract from
the protection of Section 102 and that thereafter the contract was
subject to the proscriptions of the amended Act.3
2 The parts of Section 102 material herein provide:
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, . . 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
subsequent thereto. ( Emphasis supplied.)
* The Broderick Company ( Header-Press Division), 85 NLRB 708.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The complaint, as amended, alleged that by execution of the
addenda on.April 1, 1948, the Respondent Company violated Section
8 (a) (2) of the Act. The Trial Examiner found that, by reasserting
through the addenda the unauthorized union-security provisions of
The original agreement, the Respondent Company lent its support to
the,Respondent Union in violation of Section 8 (a5 (2) of the Act.
The charges herein were filed and served upon the Respondent Com-
pany in January 1949. As the Board has consistently held, the proviso
to Section 10 (b)4 extinguishes liability for unfair labor practices
committed more than 6 months prior to the filing and service of the
charge initiating the case.5 We are therefore precluded from making
any "unfair labor practice finding with respect to the execution of
the addenda, for lack of a timely charge with respect thereto. How-
ever, with respect to the implementation of the unlawful provision
of the contract by the discharge of the complainant in January 1949,
we have a timely charge supporting the complaint. We therefore
find that, by giving effect to the unauthorized union-security pro-
visions of the contract by the discharge of the complainant, the
Respondent Company lent its support to the Respondent Union in
violation of Section 8 (a) (2) of the Act.'
ORDER
Upon the entire record in the case, and pursuant to Section 10
;(c) of the National Labor Relations Act, the National Labor Relations
Board hereby orders that : ,
1. The Respondent Company, United Hoisting Co., Inc., Engle-
wood, New Jersey, its officers, agents, successors, and assigns, shall :
(a) Cease and desist from:
(1) Entering into, renewing, or enforcing any agreement with
Local No. 15 C, International Union of Operating Engineers, A. F. of
L., or any other labor organization, which requires its employees to
join, or maintain their membership in, such labor organization as a
condition of employment, unless such agreement has been authorized
as provided by the National Labor Relations Act, as amended ;
^12) Recognizing Local No. 15 C, International. Union of Operating
Engineers, A. F. of L., or any successor thereto, as the representative.
of any of its employees for the purposes of dealing with it concerning -
.,grievances, labor disputes, wages, rates of pay, hours of employment,
4 The pertinent portion reads : . . , no complaint shall issue based , upon any unfair labor
tiractice occurring more than six months prior to the filing of the charge with the Board
,and the service of a copy thereof upon the person against whom such charge is made, . . .
Cathey Lumber Company, 86 NLRB 157.
See Salant & Satan t, Incorporated , 87 NLRB 215.
UNITED HOISTING CO., INC. 1645
or other conditions of employment, unless and until said labor
organization shall have been certified by the National Labor Relations'
Board ;
(3) Performing or giving effect to its agreement entered into on
or about June 18, 1947, and the addenda thereto entered into on or
about April 1, 1948, with Local No. 15 C, International Union of
Operating Engineers, A. F. of L., or to any modification, extension,
supplement, or renewal thereof, or to any other contract, agreement,
or understanding entered into with said labor organization relating
to grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said labor organi-
zation shall have been certified by the National Labor Relations
Board ;
International(4) Encouraging membership in Local No. 15 C.
Union of Operating Engineers, A. F. of L., or in any other labor
organization of its employees, by discharging any of its employees
or discriminating in any other manner in regard to their hire or tenure
of employment, or any terms or conditions of their employment, except
to the extent authorized by Section 8 (a) (3) of the Act;
(5) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to engage in
or to refrain from engaging in activities guaranteed them by Section
7 of the Act, 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 by Section 8 (a) (3) of the
Act.
(b) Take the following affirmative action, which the Board frrids
will effectuate the policies of the Act :
(1) Withdraw and withhold all recognition from Local No. 15 C,
International Union of Operating Engineers, A. F. of L., New York,
New York, as the representative of any of its employees for the pur-
poses of dealing with the Respondent Company concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until said labor organization
shall. have been certified by the National Labor Relations Board;.
(2) Offer to Edwin H. Huegel immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges;
(3) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary for a determination of the
amounts of back pay due and the right of reinstatement under the
terms set out herein ; .
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) Post at its plant in Englewood, New Jersey, copies of the notice
attached to the Intermediate Report marked Appendix A.' Copies
of said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the Respondent Company's
representative, be posted by the Respondent Company immediately
upon receipt thereof, and maintained by it for a period of at least
-sixty (60) consecutive days thereafter, in conspicuous places, including
-all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent Company to insure that
said notices are not altered, defaced, or covered by any other material;
(5) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
2. The Respondent Union, Local No. 15 C, International Union of
Operating Engineers, A. F. of L., New York, New York, its officers,
representatives, agents, successors, and assigns, shall :
(a) Cease and desist from:
(1) Restraining or coercing employees of United Hoisting Co., Inc.,
its successors or assigns, in the exercise of their right to refrain from
any or all of the concerted activities guaranteed by Section 7 of the
Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized by Section 8 (a) (3) of the Act;
(2) In any manner causing or attempting to cause United Hoisting
Co., Inc., its officers, agents, successors, or assigns, to discriminate
against its employees in violation of 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, in writing, United Hoisting Co., Inc., that it withdraws
its objections to the employment of Edwin H. Huegel by the Respond-
ent Company and requests it to offer him immediate and full rein-
statement to his former or substantially. equivalent position, without
prejudice to his seniority or other rights and privileges;
(2) Post in conspicuous places in its business office, and where
notices to its members are customarily posted, copies of the notice-
attached to the Intermediate Report marked Appendix B." Copies of
said notice, to be furnished by the Regional Director for the Second
Region, shall after being duly signed by an official representative of
' This notice , however , shall be and it hereby is amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner" and sub-
stituting in lieu thereof the words "A Decision and Order ." In the event that this Order
is enforced by a decree of a United States Court of Appeals , there shall be inserted before
the words "A Decision and Order" the words "A Decree of the United States Court of
Appeals Enforcing."
B Ibid.
UNITED HOISTING CO., INC. 1647
the Respondent Union, be posted by it immediately upon receipt
thereof and maintained by it for a.period of at least sixty (60) con-
secutive days thereafter. Reasonable steps shall be taken by it to
insure that said notices are not altered, defaced, or covered by any
other material;
(3) Mail to the Regional Director- for the Second Region signed
copies of the notice attached to the Intermediate Report marked Ap-
pendix B, for posting, the Respondent Company willing, at the Engle-
wood, New Jersey, plant of United Hoisting Co., Inc., in places where
notices to its employees are customarily posted. Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being signed as provided in paragraph 2 (b) (2) of this Order,
be forthwith returned to said Regional Director for said posting;
(4) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
3. United Hoisting Co., Inc., its officers, agents, successors, and
assigns, and Local No. 15C, International Union of Operating Engi-
neers, A. F. of L., its officers, agents, representatives, successors, and
assigns, shall jointly and severally make whole Edwin H. Huegel in
the manner set forth in the section of the Intermediate Report entitled
"The remedy," for any loss of pay he may have suffered by Respond-
ents' discrimination. against him.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Messrs. Melvin J. Welles and Jerome A. Reiner, for the General Counsel.
Mr. Harold L. Luxemburg, of New York, N. Y., for the Respondent Company.
Levy, Galotta & Corcoran, by Mr. William J. Corcoran, of New York, N. Y.,
for the Respondent Union.
STATEMENT OF THE CASE
Upon two separate charges, each duly filed on January 17, 1949, by Edwin H.
Huegel, herein sometimes referred to as the Complainant , the General Counsel
of the National Labor Relations Board' by the Regional Director of the Second
Region ( New York, New York ), issued an order of consolidation and a complaint
dated March 9, 1950, against United Hoisting Co., Inc., Englewood, New Jersey,
herein called the Respondent Company, and Local No. 15C, International Union
of Operating Engineers, A. F. of L., New York, New York, herein called the
Respondent Union. The complaint alleged that the Respondent Company has
violated Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, as amended , 61 Stat. 136, herein called the Act,
and that the Respondent Union has violated Section 8 (b) (1) (A) and (2)
and Section 2 (6) and ( 7) of the Act. Copies of the complaint , together with
the charges , the order consolidating the cases , and a notice of hearing, were
1 The General Counsel and his representatives are herein designated as the General
Counsel ; the National Labor Relations Board as the Board.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duly served upon the Respondent Company, the Respondent Union, and the
Complainant 2
With respect to the unfair labor practices, the complaint alleged, in substance :
(1) That the Respondent Company and the Respondent Union have restrained
and coerced the employees of the Respondent Company in the exercise of rights
guaranteed in Section 7 of the Act by executing, about April 1, 1949, a written
agreement amending a written agreement entered into about June 18, 1947,
which requires membership in the Union as a condition of employment; (2)
that about January 14, 1949, the Union, pursuant to the foregoing agreement
and the amendment thereto, demanded or required the Company to discharge
all employees who were not members of the Union ; (3) that about January 14,
1949, as a result of the demand by the Union and pursuant to the agreement
and the amendment thereto, the Respondent Company discharged Edwin H.
Huegel and since that date has refused to reinstate him because he was not a
member of the Union; and (4) that the agreement and the amendment thereto
and any modification, supplement, renewal, or extension thereof have no legal
force or effect, and are invalid and in violation of the Act.
Pursuant to extension of time to answer which was served on the parties by
the Regional Director on March 21, extending the time to answer to March 31,
1950, the Respondent Company and the Respondent Union filed separate answers
on March 31, 1950. Both of the foregoing answers denied the commission of any
unfair labor practices ; each alleged similar affirmative defenses which, in essence,
were that Huegel had been laid off in accordance with seniority because of lack
of work, and that Section 102 of the Act protects the agreement which was
signed before the passage of the Act.
Pursuant to notice, a hearing was held at New York, New York, on April 17
and from April 27 to May 1, 1950, before Earl S. Bellman, the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner. The General Counsel,
the Respondent Company, and the Respondent Union were represented by counsel
and participated in the hearing. All parties were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues.
During the course of the hearing, the General Counsel moved to amend para-
graph 8 of the complaint to allege that the date of execution of the amending
agreement was April 1, 1948, rather than April 1, 1949. This motion was granted
over the objections of the Respondents. The answers were both thereafter
amended to allege Section 10 (h) of the Act as a- further affirmative defense,
on the ground that acts alleged in the complaint occurred more than 6 months
prior to the filing and serving of the charges. A motion by the Respondent
Company for the severance of the cases was denied. Motions by the Respondent
Company to dismiss the complaint on three different grounds were joined in
by the Respondent Union. Those motions were denied without prejudice to
their renewal.
At the close of the hearing, both Respondents renewed their motions to dismiss
and the Respondent Union also moved to dismiss on several additional grounds.
Ruling was reserved on the motions to dismiss; said motions are hereby denied.
A motion by the General Counsel to conform all of the pleadings to the proof.
2 As shown by returned receipts for registered mail. the charge against the Respondent
Company in Case No . 2-CA-585 had previously been delivered to the Company on January
21, 1949 , and the charge in Case No. 2-CB-183 had. been delivered to the Union on
January 19, 1949.
UNITED HOISTING CO., INC. 1649
as to formal matters was granted without objection. The General Counsel, the
Respondent Company, and the Respondent Union all presented oral argument
which is included in the record. Each specifically waived the right accorded
by the undersigned to file briefs and proposed findings of fact and conclusions
of law.
FINDINGS OF FACT
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the, following findings of fact : '
I. TILE BUSINESS OF THE RESPONDENT COMPANY
United Hoisting Co., Inc., is a New York corporation engaged, at its prin-
cipal office and place of business in Englewood, New Jersey, in the rental and
:sale of construction contractors' machinery. Its business operations are in
connection with and accessory to the building construction industry. During the
year ending February 1949, the Company purchased materials and parts valued
in excess of $250,000, of which approximately 75 percent was shipped to it from
points outside the State of New Jersey. During the same year's period, the
Company made rentals or sales in excess of $500,000, approximately 75 percent
of which were made outside the State of New Jersey.
The undersigned finds that the Company's operations affect commerce within
the meaning of the Act.
II. THE STATUS OF THE RESPONDENT UNION
Local No..15C, International Union of Operating Engineers, A. F. of L., is a
labor organization affiliated with the American Federation of Labor. It admits
to membership employees of and has contractual relations, with the Respondent
Company.
III. THE UNFAIR LABOR PRACTICES
A. The contactual relations of the Respondents
The Respondent Union and the Respondent Company have had contractual
Telations since 1936. The issues in this case revolve around an agreement ex-
ecuted on June 18, 1.947, a few days before the enactment of the Act, and an
"!addenda" thereto executed on or about April 1, 1948. Both the agreement and
the addenda were signed for the Respondent Union by its president. Both were
also signed on behalf of Construction Equipment Rental Association, herein
-called the Association, by the Association's president and its secretary. At all
times material herein, the Respondent Company has been a member of the
Association. E. A. White, the president of the Respondent Company, was presi-
dent of the Association at the time of the execution of the agreement on June
18, 1947, and signed the agreement as the Association's president. White testi-
fied that at the time he signed the agreement, it was the practice of the Associa-
tion to cover members of the Association by the agreement, and that he
considered that the agreement covered the Respondent Company, of wlh he
was then also president. White also testified in effect that he considered that,
in accordance with the practice at the time the addenda was signed by a suc-
ceeding president of the Association, his company was bound by the addenda.
The undersigned is satisfied, on all of the evidence, that the Respondent Com-
pany and the Respondent Union were in fact contractually bound by the agree-
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of June 18, 1947, and by the addenda thereto of April 1, 1948. It should
also be noted that the pleadings put in issue the agreement and the addenda only
insofar as they apply to the Respondent Company and the Respondent Union.
The Association was not joined as a party nor was the Association mentioned
in the complaint.
Certain provisions of the agreement executed on June 18, 1947, should now be
noted.
Article XI, which is entitled "DURATION," reads as follows :
This agreement enters into force on APRIL 1st, 1947, and shall continue in
force until changed by agreement between the parties. No change shall be
made prior to DECEMBER 31st, 1948, and not then unless written notice
asking that changes be considered is given by one party to another on or
before NOVEMBER 1st, 1948, by registered, mail.
Article II, Section 8, of the agreement provides :
When the Union is unable to furnish the employer with competent and
skilled Union men within 48 hours of receipt of notice, the employer is priv-
ileged to employ workmen who are not members of the Union for a proba-
tionary period of not more than six weeks, and who shall comply during
this probationary period with all of the requirements of Union membership.
During this period if the employer determines to retain the employee, the
Union hereby agrees to accept said employee as a member of its Union
upon payment of its regular initiation fee, which shall not exceed $100.00.
Article II, Section 6, reads as follows :
There will be a shop steward who will be appointed from among the em-
ployees of the employer by the Union or its representatives, to attend the
interests of the Union, for the performance of such duties the employer shall
allow a reasonable amount of time.
The undersigned is satisfied and finds, on all of the evidence, that an employee
of the Respondent Company named Paider served as the shop steward in the
Respondent Company's plant, pursuant to the foregoing section of the agreement,'
and as such shop steward was an agent of the Respondent Union.
The record is silent as to any notice or any negotiations which preceded the
execution of a 2-page document entitled "ADDENDA," which it is stipulated was
executed on or about April 1, 1948. In its opening declaration, the addenda states
that it was agreed between the Association and the Union that Article XI of the
agreement of June 18, 1947, be "modified to the extent that the said Article may
be amended sooner than December 1, 1948, to wit, April 1, 1948, and that the
said amendment shall be limited to the following mutually agreed upon revi-
sions which shall be incorporated in and made a part of the foresaid agreement."
Five numbered paragraphs then follow.
The first of these five paragraphs, read in conjunction with the section of the
original agreement to which it refers,' provides that "Stock Clerks or Store-
keepers," who were not to be members of the Union under the original agree-
ment if they gave orders to -employees who were members of the Union and
did no* perform any manual work, were to be excluded from the bargaining
8 Paider was identified as the shop steward not only by Complainant Huegel but also
by the Respondent Company 's shop foreman , William Davidson.
0
UNITED HOISTING CO., INC. . 1651
unit by the addenda "in any circumstances."' The second item provides that
the hourly rates for mechanics and helpers would be increased, effective April
1, 1948, to $1.75 and $1.55, respectively. The former mechanics' rates were $1.40
and $1.60; the former helpers' rate was $1.25. The third article provides that
the section in the agreement, setting the hourly rate for "a Stock Clerk or Store-
keeper" doing manual labor and required to be a member of the Union, be
eliminated, a provision obviously consistent with the elimination of all such
classifications from coverage under any circumstances. The fourth amend-
ment eliminates the function of "Sweep Floors" under the subheading "Handy-
men," thus exempting "cleaners, sweepers or porters" from coverage under the
agreement. The fifth item provides that Article XI be amended so that no
change shall be made prior to December 31, 1950, instead of before December.
31, 1948.
The closing section of the addenda reads :
IT IS ALSO UNDERSTOOD AND AGREED between the parties that nothing con-
tained herein shall disturb the presently existing contract, dated June 18,
1947, from continuing in full force and effect in accordance with the pro-
visions thereof except only as to the extent specifically indicated and.
expressly,set forth herein.
B. The discharge of Edwin H. Huegel'
Edwin Huegel entered the Respondent Company's employ on October 11,
1948, as a welder, having been hired the preceding day by William Davidson,
who has been the Company's shop foreman for 12 years and who is in charge
of all the shop employees at the Company's plant.
During the interview in Davidson's office when he hired Huegel, Davidson
told Huegel in effect that the shop steward of the Respondent Union' would
approach him about joining the Union within approximately 6 weeks ; that he
did not like to see an employee pay the union initiation fee and then be let go
shortly afterwards for lack of work ; and that when the time came for him
to join the Union, Huegel should check with Davidson to find out whether his
work was satisfactory and whether there would be continued employment for
him'
4 While the parties disagree as to the nature of the change made, the undersigned is
satisfied from his study of the two sections involved that the above-set-forth change was
made. The amended section of the original agreement reads : "Superintendents, Foremen,
Stock Clerks and Storekeepers and other (sic) employed in a clerical capacity, but who
do give orders to employees who are members of the Union, but who do not perform any
manual work, shall not be members of the Union." The addenda states that stock
clerks and storekeepers "are exempt from the terms of this agreement in any circum-
stances."
' Some of the findings in this section are based on evidence which involves no essential
conflict . However, other findings which are discussed more fully hereinafter are made
on contradicted testimony of Huegel, which the undersigned credits.
-
' While it appears that Davidson did not then mention the Union by name, it is clear
from all of the evidence, including Davidson's own testimony, that his reference was to
the Respondent Union of which Paider was the shop steward.
The above findings as to what Davidson told Huegel are made upon the undersigned's
appraisal of the testimony of both Huegel and Davidson, in the light of the entire record.
For instance , while Davidson testified that he told Huegel that the union steward would
approach him within 6 weeks about joining the Union, and while Davidson further testified
that he customarily told new employees to see him so that he could "let them know if
there is work enough ahead or if the work is satisfactory," he denied telling Huegel
that he would let him know what his prospects were for Continued employment. Davidson
1652. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears that the Union was liberal in its application of the 6-week pro-
liationary period as to Huegel . and some three other employees . In December
1.948, shortly before Christmas, the Respondent Union's shop steward, Paider,
told Huegel , "I am holding off bringing you fellows down to the hall until after
the holidays." Later Huegel learned from one of the other employees who was
to be inducted into the Union, that the four employees to be inducted were
eitfpected to report to the union hall on the night of January 13, 1949.
After learning that' he was scheduled for induction into the Union, Huegel
saw Foreman Davidson on the afternoon of January 13 immediately after work ;
told Davidson that he understood that the men were to be inducted into the
Union that night ; and asked Davidson what his .status was as an employee.
Davidson told Huegel that he was "all right." Huegel then asked Davidson
where the hall was, and Davidson replied that he did not know the exact
address of the hall but that Huegel could get in touch with one of the other
men slated to go down and could probably ride with them."
Huegel did not go to the union hall the night of January 13 to be inducted.
On the morning of January 14, shortly before 9 o'clock, Shop Steward Paider
came to Huegel in the shop and asked him why he had not been down to the
halt the previous night. Huegel replied that he had been to a "V. F. W. meeting"
and that he believed that he did not have to join the Union. Thereupon Paider
said, "Well, we will see about that. You will be through tonight." Huegel's
only answer was "Well, we will see."
Sometime that same morning, Paider made a statement to Davidson, in which
lie, in effect, informed Davidson that.Huegel had failed to join the Union the
night before and should be laid off. Thereafter, that same morning, Davidson,
who clearly knew that Paider was the Respondent Union's shop steward, went
to see his immediate superior, Gerome White, the Respondent Company's vice
president and secretary, who was generally responsible for the management of
the plant. According to the testimony of both Davidson and White, Davidson
informed White that Huegel had not joined the Union! White testified that he
thereupon "immediately said that it was a solution to our problem because of
the fact that we had slackened up in our welding department." Davidson, who
testified that White said that "things are quiet anyhow" and "we might as well
lay him off now," also testified that White had never told him prior to that day
Chat Huegel was going to have to be laid off. Whatever discussion, if any, may
gave no explanation of why he treated Huegel differently in this respect from other
employees. In addition, it is noteworthy that the agreement above quoted provides for
a 6-week probationary period and that the Respondent Company's practice, according to'
the testimony of Gerome White, the Company's vice president and secretary, was to
rebato to employees who were laid off for lack of work within less than a year, and
who had paid the Union's $50 initiation fee, at the rate of $1 for each week less than a
year they had worked for the Company prior to being laid off. Thus, any employee who
had worked only 6 weeks and had paid the $50 initiation fee to the Union would receive
a rebate of $44 from the Company. Thus Huegel's testimony that Davidson told him
that he would let him know about his prospects for continued employment before it was
time to join the Union, clearly accords with reasonable procedure under the Company's
practices.
" In making the above findings , the undersigned credits Huegel ' s testimony that
Davidson told him on that occasion that his status was "all right." While Davidson
testified that Huegel asked him where the hall was, he denied that Huegel asked him
or that he told Huegel anything about his employment status. The undersigned is satis-
fred; especially in view of the employment interview above set out, that, however the
rlratter may have been' expressed, Davidson informed Huegel in essence that his employ-
ment status was such as to justify his induction into the Union.
6 The undersigned does not credit Davidson's testimony that he did not "know anything
about the union contract," and could not think of "any reason I told him that in particular."
UNITED HOISTING CO., INC. 1653
have taken place between White and Davidson concerning slackness of work at
the time of the conversation here under consideration, the undersigned is satis-
fied and finds that there had been no prior discussion between them of any
layoff of Huegel because of slackness in work and that the decision to let Huegel
go was made immediately after Davidson informed White that Huegel had failed
to join the Union.
About 3 o'clock on the afternoon of January 14, Foreman Davidson went to
Huegel in the shop and told him that he understood that he did not want to
join the Union. Huegel replied that that was right, and that he understood
that the Company's plant was an "open shop." Davidson then made a brief
explanation about open, closed, and union shops and said, "Ed, this is a union
shop. If you are not going to join the union, I will have to let you go for lack of
work." When Huegel made no reply, Davidson said that he wanted no hard;
feelings ; that he would be glad to give Huegel a recommendation at any time-i
and that his check would be ready for him that night"
At quitting time on January 14, Huegel's check was ready for him along with
his "NOTICE OF SEPARATION," which had an "Y" typed in the box next to
"Lack of Work" under the caption "Reason for Separation." While Huegel did
not thereafter protest to the Respondent Company about the reason thus marked,
he filed the charges herein 3 days later, on January 17, 1949.
C. Conclusions as to the unfair labor practices
In the light of all the foregoing and upon the record as a whole, the undersigned
finds that the contention of the Respondents that Huegel was laid off because
of lack of work is without merit. It is true that Huegel was the youngest of
the Company's shop employees in point of seniority and that his separation
came during what then was and normally is a slack period both in the buildin
trades and in the Respondent Company's business. However, whatever justi-
fication there may have been for the temporary layoff of a welder, the under-
signed is satisfied that no consideration had been given to laying off Huegel
until after Davidson told White that Huegel had failed to join the Union. In
fact, just the day before Huegel's separation, Davidson had told Huegel that
his employment status was all right, and the undersigned is confident that
Davidson intended, in accordance with the Respondent's practice, to convey
to Huegel that his employment prospects were such as to justify his paying
the $50 initiation fee involved in joining the Union. Furthermore, what David-
son said, in his final discussion with Huegel on the afternoon of January 14,
convinces the undersigned, that, absent Huegel's refusal to join the Union, he
would have been continued in the Company's employ. It is also noteworthy
that, despite Davidson's testimony that Huegel was only laid off because of
lack of work, Davidson admitted that when he later hired additional welders,
he did not look for Huegel although Huegel's work had been satisfactory ; that
he did not then know what Huegel was doing and it was the Company's policy
to look for laid-off employees within the period of time involved. Everything
considered, the undersigned is satisfied and finds that Huegel was discharged
on January 14, 1949, rather than laid off," and that the motivating factor was
Huegel's refusal to join the Union, rather than lack of work.
10 The undersigned credits Huegel's version of the conversation as above summarized
rather than Davidson's testimony relative thereto.
"On the question of what the Respondent intended by its action, it is noteworthy that
Davidson admitted early in his testimony that he had told Huegel on January 14 that he •
was "actually discharged."
-1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the matter is not completely free from doubt, the undersigned is
persuaded, contrary to the contention of the Respondents, that the agreement
and the addenda thereto fall outside the protection of Section 102 of the Act"
There is no dispute that the agreement of June 18, 1947, was entered into prior
to the enactment of the Act and there is no contention that, had the agreement
remained in status quo, its provisions would not have been protected by Section
102 as of January 14, 1949. The crux of the matter in issue here is whether
the addenda of April 1, 1948, which was clearly executed after the effective date
of the Act, is tantamount to a renewal or extension of the agreement and thus
removed it from the protection of Section 102. -It should be noted that Section
102 does not specify the effect of an amendment, nor, so far as the undersigned
,can determine, is any light shed upon this subject by the legislative history
of the Act.
• Without attempting to determine proportionately how extensively the pro-
visions of the addenda change the terms of the agreement, it is clear that
substantial changes were made in several substantive terms specifically provided
for in the addenda, and that the addenda asserted that all of the provisions
of the agreement not thus specifically changed should continue "in full force and
effect." It should also be noted that the duration clause in the original con-
tract provided that it should "continue in force until changed by agreement
between the parties." There can be no doubt that the addenda changed the
agreement after the effective date of the Act. Accordingly, whether, on the one
hand, it be considered that the addenda terminated the original agreement and
became itself in effect a new contract, or, on the other hand, that the addenda
amended and reasserted the agreement as amended, the undersigned is satisfied
and finds that, by executing the addenda about April 1, 1948, the Respondents
removed the agreement of June 18, 1947, from the protection of Section 102 under
the Board's decisions in the Salant" and the Broderick" cases.
There remains the position of the Respondents that Section 10 (b) provides
an affirmative defense because the addenda was executed more than 6 months
prior to the filing of the charges. The undersigned finds that position unten-
12 The parts of Section 102, material herein, provide:
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, . . . 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 subsequent
thereto. [Emphasis supplied.]
1s Salant & Salant, Incorporated , 87 NLRB 215.
14 The Broderick Company ( Header-Press Division ), 85 NLRB 708. From language
which appears in this decision, it is evident that the Board construes Section 102 as giving
parties to a contract no choice other than to leave their agreement in status quo if they
seek to conserve the protection of Section 102 for presently unlawful provisions which
were entered into prior to the enactment of the Act.
In this connection , it is interesting to note the following paragraph on page 69 in "The
New Labor Law," Bureau of National Affairs, Inc., Washington, D. C., 1947:
The status of closed-shop or other union-security contracts signed before the law
was enacted and running for an indefinite term is not made clear . Presumably, any
substantive change in any provisions of the contract will be construed as a renewal or
extension of the contract . and from that time on the new law's limitation on union
security will apply.
UNITED HOISTING CO., INC. 1655
able. At the time the addenda was executed, the agreement was removed from
the protection of Section 102. Hence it is immaterial that more than 0 months
elapsed before action taken pursuant to this unprotected agreement was made
the subject of charges filed by Complainant Huegel. Such lapse of time could
not operate to restore the protection of Section 102 which the execution of the
addenda had removed.
In view of all of the foregoing, the Respondent Company, by discharging
Edwin H. Huegel on January 14, 1949, has discriminated with respect to the
hire and tenure of his employment in order to encourage membership in a labor
organization, and has thereby restrained and coerced its employees in the exer-
cise of rights guaranteed in Section 7 of the Act, thus engaging in conduct
violative of Section 8 (a) (1) and (3) of the Act. Moreover, by reasserting
through the addenda, subsequently to the effective date of the Act, unlawful
union-security provisions and by giving effect to those provisions through the
discharge of Huegel, the Respondent Company has lent its support to the Re-
spondent Union in recruiting and maintaining its membership among the
Respondent Company's employees, in violation of Section 8 (a) (2) of the Act."
As to the violations of the Act alleged to have been committed by the Respond-
ent Union, the undersigned is satisfied, under the circumstances of this case, that
the Respondent Union, by the statement of Shop Steward Paider, its agent
under the amended agreement, to Foreman Davidson on January 14, 1949, to
the effect that Huegel had not joined the Union and should be laid off, when
considered in the light of Paider's statement that same morning to Huegel that
he would be through that night, and in relation to the contractual provisions
above set out that nonunion employees "shall comply during this probationary
period with all of the requirements of Union membership," constituted both a
violation of Section 8 (b) (2) of the Act, in that the Respondent Union thereby
caused the Respondent Company to discriminate against Huegel in regard to
his hire and tenure of employment, and also a violation of Section 8 (b) (1)
(A). a
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the operations of the Respondent Company 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 each of the Respondents has engaged in unfair labor prac-
tices, it will be recommended that each cease and desist therefrom and take
certain affirmative action which the undersigned finds necessary to effectuate
the policies of the Act.
It has been found that the Respondent Company has entered into an agree
iuent with the Respondent Union whereby it lends its support to the Union in
"Julius Resnick, Inc., 86 NLRB 38; Salant & Salant, Incorporated, 87 NLRB 215.
19 At the hearing, the General Counsel took the position that the violation of Section
8 (b) (1) (A) was "a derivative one." The undersigned is satisfied that such a holding
is warranted on the basis of the Board's decision in Clara-Val Packing Company, 87 NLRB
703. Under the circumstances , the undersigned does not determine whether Paider's
statement on January 14, 1949, to Huegel and the execution of the addenda on April 1,
1948, constituted separate and independent violations of Section 8 (b) (1) (A).
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
recruiting and maintaining membership. Accordingly, it will be recommended
.that the Respondent Company withdraw recognition from the Respondent Union
and cease giving effect to the agreement of June 18, 1947, and the addenda thereto
of April 1, 1948, or to any modification, extension, supplement, or renewal
thereof, unless and until the Respondent Union has been certified by the Board.
Nothing in this recommended order, however, shall be deemed to require the
Respondent Company to vary or abandon those wage, hour, seniority, or other
substantive features of its relation with its employees established in perfor-
mance of said agreement and addenda or to prejudice the assertion by employees
of any rights they may have under. said agreement and addenda. See Julius
Resnick, Inc., and Salant & Salaut, supra.
It has been found that the Respondent Company, upon what was tantamount
to a demand of the Respondent Union, discriminatorily discharged Edwin H.
Huegel on January 14, 1949, because he was not a member of the Respondent
Union and thereby restrained and coerced Huegel and the employees of the
Respondent Company in the exercise of rights guaranteed by Section 7 of the
Act. It will therefore be recommended that the Respondent Company offer
Huegel immediate and full reinstatement to his former position, or to one
substantially equivalent, without prejudice to his seniority or other rights and
privileges. See The Chase National Bank of the City of New York, an Juan,
Puerto Rico, Branch, 65 NLRB 827. It will further be recommended that the
Respondents jointly and severally make Huegel whole for any loss of pay he
may have suffered by reason of the discrimination against him by payment to
him of a sum of money equal to that which he normally would have earned
from the date of his discriminatory discharge on January 14, 1949, to the date
of the Respondent Company's offer of reinstatement, less his net earnings dur-
ing said period. It would, however, be inequitable to the Respondent Union to
permit the amount of its liability for back pay to increase despite the possibility
of its willingness to cease its past discrimination, in the event the Respondent
Company should fail promptly to offer reinstatement to Huegel. Hence, the Re-
spondent Union may terminate its liability for further accrual of back pay to
Huegel by notifying the Respondent Company in writing that it has no objection
to Huegel's reinstatement. The Respondent Union shall not thereafter be liable
for any back pay accruing after 5 days from the giving'of such notice. Absent
such notification, the Respondent Union shall remain jointly and severally liable
with the Respondent Company for all back pay to Huegel that may accrue until
the Respondent Company offers Huegel reinstatement.
For the reasons stated in F. W. Woolworth Company, 90 NLRB 289, the
loss of,pay on the part of Huegel shall be computed on the basis of each
separate calendar quarter or portion thereof during the period from the Re-
spondent Company's discriminatory action to the date of a proper offer of re-
instatement. The quarterly periods, hereinafter called quarters, shall begin
with the first day of January, April, July, and October. Loss of pay shall be
determined by deducting from a sum equal to that which Huegel normally would
have earned for each such quarter or portions thereof, his net earnings;"
By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the Respondent, which would not have been incurred but for the unlawful
discrimination and the consequent necessity of his seeking employment elsewhere. See
Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon
Federal, State , county, municipal , or other work -relief projects shall be considered as
earnings .. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
UNITED HOISTING CO., INC. 1657
if any, in other employment during that period. Earnings in one particular
quarter shall have no effect upon the back pay liability for any other quarter.
In accordance with the Woolworth decision, supra, the Respondent, upon re-,
quest, shall make available to the Board and its agents all pertinent records.,
CONCLUSIONS OF LAW
Upon the foregoing findings of fact, and upon the entire record in the case,.
the undersigned makes the following conclusions of law:
1. The Respondent Company, United Hoisting Co., Inc., is engaged in activities-
affecting commerce within the meaning of Section 2 (6) and (7) of the Act.
2. The Respondent Union, Local No. 15C, International Union of Operating.:
Engineers, A. F. of L., is a labor organization, within the meaning of Section 2
(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise.
of rights guaranteed in Section 7 of the Act, the Respondent, Company, United
Hoisting Co., Inc., has engaged and is engaging in unfair labor practices, within
the meaning of Section 8 (a) (1) of the Act.
4. By contributing support to Local 15C, International Union of Operating
Engineers, A. F. of L., the Respondent Company has engaged and is engaging in
unfair labor practices, within the meaning of Section 8 (a) (2) of the Act.
5. By discriminating with respect to the hire and tenure of employment of
Edwin H. Huegel, thereby encouraging membership in the Respondent Union,,
the Respondent Company has engaged and is engaging in unfair labor practices,
within the meaning of Section 8 (a) (3) of the Act.
6. By causing the Respondent Company to discriminate against an employee
in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged
and is engaging in unfair labor practices, within the meaning of Section 8 (b)
(2) of the Act.
7. By restraining and coercing employees in the exercise of rights guaranteed.
by Section 7 of the Act, the Respondent Union has engaged and is engaging in.
unfair labor practices, within the meaning of Section 8 (b) (1) (A) of the Act. -
8. The aforesaid unfair labor practices are unfair labor practices affecting,
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
929979-51-vol. 92-106