Western Can Co.

National Labor Relations Board - Board Decisions

May 12, 1949

83 N.L.R.B. 489 (N.L.R.B. 1949)

In the Matter of M. J. B. Co., D/B/A WESTERN CAN COMPANY and
JOHN B . OLSON , CHARLES M. KINSMAN , FRED WIESE, WILLIAM TAL-
LON, HANS ERNST PAOZINSITY, NELLO P mw , GINO • DENTESANO,
INDIVIDUALS I . -
Case N08.20-C-1716 throug1 20-C-1720; 2Q-C-1726, and 20-,C-
1726.-Decided May 12,194,9
DECISION
AND
ORDER
On November 5, 1948, Trial Examiner Wallace E. Royster issued
his Intermediate Report and Recommended Order in the above-en-
titled proceeding, finding that the Respondent had engaged in unfair
labor practices and recommending that it cease and desist from inter-
fering with, restraining, or coercing its employees in the exercise of
their rights as guaranteed in Section 7 of the Act, and take certain
affirmative action; as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed its Exceptions to
the Intermediate Report and Recommended Order, and Brief; the
General Counsel filed Exceptions. On January 31,1949,-the Respond-
ent filed 'a supplemental memorandum requesting that the record be
opened to incorporate formally the collective bargaining agreement
executed March 25, 1946, and to take additional appropriate evidence
concerning plant practice with respect to union membership and its
relationship to continued employment. To this requested action the
General Counsel and the Charging Parties filed objections, in which
they stated that the copy of the agreement filed by the Respondent
with its brief to the Trial Examiner was accurate. The Charging
Parties stated further 'that this copy of the agreement might be con-
sidered a part of the record.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-
member panel [Members Houston, Reynolds, and Murdock].
83 N. L. R. B., No. 79.
489
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed.' Because there is no dispute among the
parties as to the provisions of the collective bargaining agreement.
'executed March 25, 1946, by the Respondent and the Grand Lodge,
International Association of Machinists for San Francisco Lodge 68,
J. A. -M., we view the copy attached to Respondent's brief to the Trial
Examiner as being correct and hereby order it made a part of the
record.2 Respondent's motion to reopen the record to take additional
evidence with respect to union-shop practice is hereby denied for the
reasons stated below.
The Board has considered the Intermediate Report, the exceptions,
all briefs and memoranda filed by Respondent, the General Counsel,
and the Charging Parties, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial.
Examiner, with the additions and modifications noted below.
As appears from the Intermediate Report, the Trial Examiner based.
his conclusion that the discharge of the seven complainants was in
violation of Section 8 (3)' and (1) of the Act' upon the failure of the
Respondent to show the existence of a valid union-shop contract, and
upon his finding, in footnote 7, that the contract, even if considered to,
be properly before him for consideration; contemplated only a prefer-
ential hiring practice. In view' of our order herein that the contract
t be made a part of the record, we have considered the effect of the per-
tinent provisions of this contract .8 and we conclude that the contract
-provides for preferential hiring rather "than a union shop. We base
this finding on the following two factors : (a) the contract clearly says
that union members shall have ."preference" for all jobs in certain
specified classifications; and (b) the contract provides that in the ab-
sence of qualified union members, non-union workers having clearance
cards from the Union may be hired and they may "voluntarily" become
members of the Union. Thus the wording of the contract itself makes
,it clear that only a preferential hiring practice was contemplated by
-the parties' When contractual language is clear and without ambig-
uity the Board will not consider as controlling evidence of the interpre-
tation and practice of the parties under any alleged compulsory mem-
1 We concur in the Trial Examiner's ruling ( I. R. ftn . 2) that the complaint is not barred
by'Section 10 (b) of the amended Act . The Board has held that Section 10 (b) has no
retroactive application ; hence complaints based on charges filed and served prior to August
22, 1947 , are not within its purview. Matter of Hsllsboro Cotton Mills, 80 N. L . R. B. 1107.
2 See Matter of Marlboro Cotton Mills, 53 N. L. R. B. 965, 967, ftn. 1.
a Section 1 of the contract contains the pertinent provisions and is fully quoted in the
Intermediate Report, ftn. 7.
4 Compare Matter of G. W. Hume Co., 71 N. L. R. B. 533.
WESTERN CAN COMPANY I ' : 491
bership clause.5 ' ^ For this reason it would-be unavailing to reopen the
record to-take additional evidence with respect to union shop practice
as requested by the Respondent e ' .-
Inasmuch as no valid union-shop or closed-shop contract was in
existence at Respondent's plant when John B. Olson, Charles M. Kins-
man, Fred Wiese, William Tallon, Hans Ernst Paczinsky, Nello Petri,
and Gino Dentesano were discharged at the request of I. A. M. Lodge
68 because they were not members or not in good standing, we find that
the said complainants were discharged by the Respondent in violation
of Section 8 (1) and (3) of the Act.
ORDER
Upon the basis of the above findings of fact and the entire record
in the case , and pursuant to Section 10 (c) of the National Labor Re-
lations Act, as amended, the National Labor Relations Board hereby
orders that the Respondent, M. J. B. Co., doing business as Western
Can Company, San Francisco, California, and its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in International Association of Ma-
chinists, Lodge No. 68, or encouraging or discouraging membership
in any other labor organization of its employees, by discriminatorily
discharging its employees, or by discriminating in any other manner
in regard to hire or tenure of employment or any term or condition
-Of their employment;
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Make whole John B. Olson, Charles M. Kinsman, Fred Wiese,
William Tallon, Hans Ernst Paczinsky, Nello Petri, and Gino Den-
tesano for any loss of pay they may have suffered by reason of the
Respondent's discrimination against them by payment to each of
them of a sum of money equal to the amount which he normally would
have earned as wages during the period from the date of his discharge
to the date in June 1947 when he was offered reinstatement by the
Respondent, less his net earnings during said period;
5 Matter of Nattonal Electric Products Corporation, 80 N. L . R B. 995.
6 Moreover , Respondent 's motion to reopen to take additional evidence is defective in
that no reason is stated for Respondent 's failure to introduce at the hearing the evidence
it now desires to introduce . Matter of Tishomingo County Elec . Power Ass'n., 74 N. -L.
R. B. 864 ; Matter of Lakeshore Elec. Mfg. Corp., 67 N. L. R. B 804.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b); Post, in conspicuous places in. the, plant of 'the Respondent ,at
San Francisco, California, copies of•the'notice attached hereto, marked
"Appendix A." 7 Copies of said notice; to be , furnished, by, the,Re-
gional Director, for,--the Twentieth Region,,-shall,,,aftera being, duly
signed iby the Respondent's representative; be, posted by -,the Respond-
ent` immediately upon receipt tb:ereof and be ,maintainedr by it for at
least sixty (60), consecutive days thereafter in, conspicuous' ,places,
including all places where notices(to employees•are•customarily,posted.
Reasonable steps shall' be,taken,•by the,Respondent to insure that said
notices are not altered, defaced, or covered by: any other material;,
(c) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) days-fromt'he date of this Order,., what steps
the Respondent has taken to comply herewith.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relatiols
Board, and in order to effectuate the policies of the National -Labor
Relations Act, we hereby notify our employees that :
WE wua. NOT encourage membership in' or -activity on behalf
Of INTERNATIONAL ASsocIATION OF MACHINISTS,' LODGE No. 68, or
encourage or discourage membership in any other labor brganiza-
tion of our employees by discriminating against any of them in
regard to their hire or tenure of employment 'or any terms or con-
ditions of employment except as may be required by the terms
•'-of a collective bargaining agreement in conformity with Section
8 (a) (3) of the Act. ;
WE WILL make whole the employees named below for any loss of
pay suffered as a result of the discrimination
John B. Olson William 'Tallon , •
Charles M. Kinsman Hans Ernst Paczinsky
Fred Wiese Nello Petri
Gino Dentesano.
M. J. B. CO., d/b/a WESTERN CAN COMPANY,
Employer.,
By ----------------------------------------------
(Representative ) (Title) - -
Dated --------------------
7 In the event that this Order is enforced by 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." •1
' WESTERN ' CAN COMPANY 493
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Benjamin B. Law, Esq., for the General Counsel.
J. Paul St. Sure , Esq., and Edward H. Moore, Esq., of Oakland , Calif., for
Western.
J. H. Sapiro , Esq., of San Francisco, Calif., for the charging parties.
STATEMENT OF THE CASE
1
Upon separate charges filed July 28 , 1947, by John B. Olson, Charles M. Kinsman,
Fred Wiese , William Tallon , Hans Ernst Paczinsky , Nello Petri, and Gino
Dentesano , hereinafter called the charging parties the General Counsel of the
• National Labor Relations Board herein called respectively the General Counsel i
and the Board , by the Regional Director for the Twentieth Region ( San Francisco,
California ) issued his consolidated complaint dated August 27, 1948 , against
M. J. B. Co ., doing business as Western Can Company, San Francisco , California,
herein called Western , alleging that Western had engaged and was engaging in
unfair labor practices affecting commerce within the meaning of Sections 8 (a)
(1) and (3) and Sections 2 (6) and (7) of the National Labor Relations Act,
as amended , 61 Stat . 161, herein called the Act.
With respect to unfair labor practices , the complaint alleged in substance that
Western discriminatorily discharged Fred Wiese , William Tallon , and Nello
Petri on July 17 , 1946 ; John B. Olson and Gino Dentesano on September 13, 1946;
Hans Ernst Paczinsky on January 9, 1947; and Charles M. Kinsman on March
13, 1947 , because International Association of Machinists , Lodge No . 68, herein
called Lodge 68, failed or refused to give them work clearance and because of
their membership in and concerted activities , on behalf of Machinists Union,
Local No . 168, United Steel Workers of America , C. I. 0., herein, called the
Machinists.
In its answer dated September 14, 1948 , Western admitted the discharge of the
named individuals on the dates alleged - but asserted that the dismissals were
required by and made pursuant to the terms of a collective bargaining , agreement
with the Lodge 68.2
Pursuant to notice a hearing was held in San Francisco, California on Septem-
ber 14, 1948, before the undersigned Trial Examiner duly designated by the Chief
Trial Examiner. All parties 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 upon the Issues.
Although opportunity to do so was afforded , none of the parties argued on the
record . Briefs have been received from the General Counsel and from counsel
for the Respondent.
Upon the entire record In the case and from my observation of the witnesses, I
make the following :
I This designation Is also applied to the staff attorney representing the General Counsel
at the hearing.
2 Counsel for Western also contended that the complaint is barred by Section 10 (b) of the
Act. As charges were filed and served prior to August 22, 1947 , I find no merit in this
contention.
494,11 - DECISIONS OF NATIONAL ,,LABOR;_ RELATIONS BOARD
. . • ; FINDINOS '}OF FACT, 1 M)""), , r " ,
I. THE (BUSINESS OF'THE' RESPONDENT'
1
M. J. B. Co., a Delaware corporation doing business as Wtestern"Can.'Company,
Is engaged in the manufacture of cans in San Francisco, California. In the course
and conduct of its business, Western purchases for'-use at its San Francisco, plant
raw materials valued in' excess of'one million dollars annually'of which more''than
70 percent is purchased and shipped to Western from sources outside the State''
of California. Annual sales of Western's productslexcedd`a inillion'and •a half
dollars in?value, of which more than 10 percent is sold and shipped to customers
outside the State of California.' 1, 1 '
H. THE'OEOANIZATIONS REFERRED TO IN THE COMPLAINT
International Association of Machinists, Lodge No. 68 and Machinists Union,, i
Local No. 168, United,Steel Workers of America, CIO, are labor organizations,
admitting to membership employees of Western.,
III,, THE UNFAIR LABOR PRACTICES ,
Counsel for the. parties stipulated at the hearing that certain findings by the •
Board in a representation case' correctly set ,forth facts, bearing on the issuesf
here.
In accordance with thg stipulation ,, I find the following facts as set forth
in the Board 's decision.
For many years;,-Lodge 68 of the International Association of Machinists, ,
herein called Lodge 68; has bargained for tool. and die makers, machinists,..
specialists, helpers and+ apprentices' employed by most uptown' shops in
San Francisco and vicinity: ' From 1938 to 1944, Lodge 68 entered into'Asso-, .
ciation-wide collective bargaining contracts with the California Metal Trades
Association, an association of employers, herein called the Association, and
also executed separate usually identical contracts with individual firms'!
which either were not members of the 'Association or, if they, were members,
did not choose 'to be bound by Association-wide agreements. The Associa-
tion and Lodge 68 were unable ,to agree on ,the terms ofsa new, contract in
1944. Although no Association-wide contract was signed in that year Lodge
68 did negotiate about 55 separate bargaining contracts with as many different
'firms in 1944 and 1945.
-`2 Uptown shops are defined as manufacturing , contract jobbing, and general machine
contract shops. ' ( -
'In the fall of 1945, Lodge 68 served demands' for a wage increase, on. all
' the employers, in the San Francisco area, including' the Association, with'
\whom it had previously had contractual relations. To enforce its' demands,
Lodge 68 called 'a strike beginning October -29, 1945. Some individual firms
signed contracts with Lodge 68 before the date of the strike, others signed -
agreements after the commencement of the strike. Thee signing of an agree-
Matter of California State Brewers Institute, 72, N. L. It. B. 665, decided February 14,"
1947 - The stipulated facts appear In Section III, subsections A and C , at pages 668,, 669,
670, and 671 . The footnotes In this 'extraction are numbered 'as in the Board 's decision.
WESTERN CAN COMPANY 495'
went by an employer either prevented a ^ strike or, marked - its termination.
'The Association, however, refused to accede to the demands of Lodge • 68
and the machinists of such members as adhered 'to it remained out on strike.
On February 16, 1946, the Executive Council of the Grand Lodge of the
International 'Association of Machinists ; herein called the International
which had not authorized the strike, arrived in San Francisco to investigate
the strike situation. The- next day, the International's representatives con-
ferred with officers of Lodge 68. On February 20, 1946,. the. Association
submitted proposals for a new agreement to Lodge 68 and the International.
These proposals provided for a wage increase considerably less than the
wage increase demanded by Lodge 68. The International called- a member-
ship meeting of Lodge 68 on February-26, 1946, to discuss the proposals of
the Association, but nothing was accomplished. .
On February 27, 1946, the International sent letters to, all members of
Lodge 68 setting forth the terms of the Association's proposals. The mem-
bers were asked to ballot as to whether (1) the proposals were acceptable,
and (2) the International should sign a contract with the Association in
behalf of Lodge 68. About 7,500 ballots-were mailed out and 2,750 were re-
turned. Of the returned ballots, approximately 2,400 answered-both. ques-
tions in the affirmative. On March 3, 1946, Lodge 68, at the call of its local
-officials, held a special meeting at which the proposals of the Association
were rejected by a vote of 2,198 to 624.
On March 5, 1946, the International notified the officers of Lodge 68, in
writing, that the President of the International had filed charges against
Lodge 68, that a- trial would be had on these charges on March 11, 1946,
and that, pending this hearing, Lodge 68 was restrained from taking further
actions of any kind. On March 7, 1946, the International notified the Asso-
tiation of the suspension, and commenced to negotiate with the Association
for a new contract.4
On March 10, 1946, a special meeting of Lodge 68 was held, at which
approximately 4,000 members attended.` Admission was granted only to
members of Lodge 68 in good standing. The overwhelming majority of mem-
bers present voted not to send a delegation to the bearing before the Inter-
national, and to secede from the International Association of Machinists.
The officers of Lodge 68 were instructed to form an independent union. All
officers of Lodge 68 joined in the secession. On March 11, 1946, the newly
formed independent union, under the name of Machinists Union No. 68,4
notified all the Employers involved herein that their machinists had trans-
ferred their 'allegiance from Lodge 68 to the 'Independent. On the same
day, the International held a hearing on the charges and suspended Lodge 68.
4 In California Metal Trades Association, et al, 72 N. L . it. B. 624 , issued this day,
the testimony was to the effect that the Association did not commence to bargain with
the International until March 11, 1946.
At this time, the membership of Lodge 68 was approximately 8,000.
The name of the independent union was subsequently changed to Machinists Union,
Independent.
On March 12, 1946, the International, in behalf of Lodge. 68, signed a
collective bargaining contract with the Association. This contract, referred
to herein as the master contract, provided that it should remain in effect
until March 31, 1947, and should continue in effect for 1 year thereafter,
unless either party gave written notice to the other of desire to alter, amend,
or terminate, at least, 30 days before the expiration date. - On March 14,
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1946; the. International . aent letters, to alL .members , of--Lodge 68 advising
them that the, contract had. 'been signed W and that they should , therefore,
return to work. On. March 18 , 1946, the strike came , to-an end.
Since . the schism . In its ranks, Lodge . 68 has . been- governed , by officials ap-
pointed by the, International . Lodge , 68 has, however, continued to collect
dues, hold membership meetings , and elect shop stewards and committeemen.
At the time of the hearing , it- had 6,800 members.
On. June, 16,. 1946 , the, Independent voted to, affiliate with the. Petitioner
and was charted , on July., 3, 1946 ; with the same officers.
Western's' bargaining relations with Lodge 68 -go back 20 years or more.
On April 1 , 1944, Western and Lodge - 68- signed a : collective bargaining
contract for a term of 1 year , renewable for an additional year in the, ab-
sence of written notice by either party to the other of desire to alter, amend,
or terminate , at least 30 days before the expiration date . This contract
provided for reopening of the wage, clause on 5 days' notice . On February
28, 1945, the contract was amended by providing that the wage clause could
be reopened on 30 days' notice, but in all '-other respects the contract was
continued in effect . Pursuant to the,provision permitting reopening , Western
and Lodge 68, on October 25, 1945, signed an interim agreement providing
for increased wages until March 31; 1946; At the same time, the parties
also executed a stipulation identical . with, that signed by the' Institute, and,
Lodge 68.
On March 11 , 1946 , after the schism, the Independent sent a notice to•
Western advising the latter of the change of affiliation by its , machinists,
and asserting that the Independent ' was' now, the legal ' party to thel contract.
On March 25 , 1946; Western signed,a contract , with , the, International , acting
in- behalf of, Local 68 , identical with the master contract.", On, March 29,. ,
1946, the Independent sent a letter to Western notifying Western that it
represented a majority of its- machinists , demanding recognition . as their
{ bargaining, agent and, requesting negotiations for a'• new contract . On April
1; 1946, the Independent filed` its petition. herein - with , respect, to Western's
machinists." -
$ This was , a' single document' signed, by, Western and a number of other individual'
employers ; Including Dreis and) Krenz.
9 After the . Independent became affiliated with the Petitioner , an amended petition
was filed by the Petitioner , as successor to the Independent.
In substantial measure the findings in the- above excerption constitute the
facts . against which the discharges , alleged in the complaint must be reviewed.
It was further stipulated at the hearing that Western received letters from
Lodge 68 asserting that the below-named individuals either , were in bad stand-
ing with or were not members of that organization and requesting. that they
be discharged . Western complied with these requests discharging:
Fred Wiese, William Tallon, and Nello' Petri, on July 17, 1946 ; John B.
Olson and Gino Dentesano on September 13, 1946 ; Hans Ernst Paczinsky,
on January 9, 1947; and - Charles M. Kinsman, on March 13, 1947.'
Of course discharges for nonmembership or bad standing in a labor organization
are per se violations of the Act unless the evidence shows them to be made in
accordance with the terms of a valid union-security agreement . The existence of
On^ some date in June 1947 , each was offered 'reinstatement.
WESTERN- CAN COMPANY) , • 1 , ',497
such an agreement is postulated In Western 's answer but no contract was offered
or received in evidence and the applicability of contract terms to the facts in
issue here was not litigated . The facts found by the Board in the representation
case ' refer to a contract between Western and Lodge 68 effective March 25, 1946,
but do not describe any provision relating to union security . The terms of'the
stipulation do not submit that contract to me for construction e I find therefore
that the seven Individuals named in the complaint were discharged by Western
on the dates alleged because they were either in bad standing with or not mem-
bers of Lodge 68 . Inasmuch as the evidence in the record does not substantiate
Western's assertion that the discharges were made pursuant to the terms of a
valid union -security agreement; I find that by discharging Fred Wiese , William
Tallon, and Nello Petri , on July 17 , 1946; John B. Olson and Gino Dentesano, on
September 13, 1946; Hans Ernst Paczinsky , on January 9, 1947; and Charles M.
Kinsman on March 13 , 1947, Western discriminated in regard to their tenure
of employment because of their nonmembership or bad standing in Lodge 68
and that Western thereby violated Section 8 ( 1) and (3) of the Act."
5 See footnote 3 supra.
6 Fred Wiese, whose discharge is one of the subjects of the complaint, testified that he
was shop steward for Lodge 68 at Western for about 8 years , during which period only
those who paid dues to Lodge 88 were permitted to work . The record is silent , however,
as to contract provisions concerning union security during that period . Wiese was dis-
charged July 17, 1948 , less than 4 months after the execution of the 1948 contract with
Lodge 68. The record does not indicate whether he continued in his post as shop steward
after April 1, 1946 . As he was active in opposition to Lodge 68 at that time, it may be
that he was relieved from that assignment . Thus, there is no clear evidence that this
practice persisted after the execution of the 1946 contract.
I In his brief counsel for the General Counsel argues that should the stipulation regard-
ing the Board's findings in the representation case be so construed as to admit the contract
mentioned therein in evidence , it should be found that the terms of that contract do not
require membership in or clearance by Lodge 68 as a condition of continued employment.
He argues further that at the time of the contract 's execution (March 25, 1946 ), a genuine
question concerning representation existed due to the schism in the membership of Lodge 68.
Counsel for Western attached what purports to be a copy of the 1946 contract to his
brief and again argued that its provisions considered in connection with testimony taken
at the hearing required Western to accede to the demands of Lodge 68 and to effectuate
the discharges of which complaint is made.
The contract is outside the record and in my opinion, cannot be considered as a basis
for finding here except to the extent that such findings were made by the Board in the
representation case . The purported copy of the contract with respect to union security
provides:
Section 1. The Employer shall recognize the Union as the sole collective bargaining
agency of all Die and Toolmakers , Machinists , Specialists , Helpers, and Apprentices
coming under their jurisdiction . Members of the Union shall be given preference for
all jobs in the foregoing classifications. In'the event qualified members of the Union
are not available, the Employer may hire the required help from other sources, pro-
vided , however, that such workmen so employed shall be required to secure a clearance
card from the Union before starting work.
Such workmen so employed shall be cleared by the Union upon presentation of
written requisition from the Employer specifying the classification for which they
have been hired. No restrictions shall be placed against such employees voluntarily
becoming members of said Union provided they meet the requirements of the Consti-
tution and bylaws of the Union.
Refusal of the Union to permit its members to work with non-Union employees of
theabove classifications shall not constitute a violation of this agreement.
Even assuming that I have construed the stipulation of fact too narrowly and that the
contract terms quoted above are before me for construction , I find that no closed shop
contract was in effect between Western and Lodge 68 at the time those named in the
complaint were discharged and that the contract contemplated no more than a preferential
hiring practice. See Matter of Iron Fireman Manufacturing Company, 69 N. L. R. B. 19.
" These sections are continued as Sections 8 (a) (1) and (3) in the amended Act with-
out change material here.
X498 DECISIONS OF, NATIONAL, LABOR-;,RELATIONS- BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Western,set forth in, Section III, above, occurring in con-
nection witheits, operations described in Section I, above, have a close, intimate,
and substantial relation to trade,, traffic, and commerce among the several states
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY..
Having found that Western has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. Having found that Western
discriminatorily discharged Olson,, Kinsman , Wiese, Tallon, Paczinsky, Petri,
and Dentesano because of their failure to become members of or maintain good
standing in Lodge 68, I' will recommend that Western make each whole for any
loss of pay he may have suffered by reason of Western's discrimination against
him by payment to him of a sum of money equal to that which he normally would
have earned as wages from the date of his discharge to the date in June 1947
when each was offered reinstatement less his,net earnings fl during that period.
'Since each of the above=named either has received or declined reinstated to his
former position, it will not be recommended that further offer be made. Since I
am of the opinion that, the discharges resulted from Western's misconception of
its obligations under a contract with Lodge 68, I,will not recommend that Western
cease and desist from the commission of any unfair labor practices other than
the ones found.' ' ' - ' i
t• , • ... ,
Upon -the basis of the above findings of 'fact and upon the entire record in the
case, I make the following :, , .
CONCLUSIONS OF' LAW . ' -
1. International Association of 'Machinists; 'Lodge No. 68, and Machinists
Union„Local, No". 168, United Steel 'Workers of America, CIO, are labor organi-
zations within the,meaning of Section 2 (5)„of the Act and of the Act as, amended.
' 2. By'discriminating in regard to the tenure and employment of John B. Olson,
Charles.M. Kinsman, Fred Wiese, William Tallon, Hans Ernst Paczinsky, Nello
Petri, and Gino Dentesano, thereby ' encouraging membership -in International
Association, of Machinists, Lodge No.,68, Respondent has engaged in unfair labor
practices within the meaning of Section 8 (1) and (3) of the Act and Section 8
(a) '(1) and (3) of the Act as amended: ' ' ' ' '
3. The' aforesaid 'unfair labor practices' are unfair- labor practices affecting
commerce within the meaning, of Section 2 (6)` and (7) of the Act and 'of the
Act as amended. , '
'RECOMMENDATIONS
'Upon the basis of the above findings'of fact and conclusions of law and upon
the entire record in the case, I recommend that M. J. B. Co., d/b/a Western Can
Company,, San Francisco, California, its, officers, agents, successors, and assigns,
shall : -
1. 'Cease and desist from
(a) Encouraging membership rin International Association of Machinists,
Lodge No., 68, or in any other labor organization of its employees by discrimina-
i See Matter of Cro8sett Lumber , Company,, 8 N. L. R. B . 440, 497-498.
r^ f,
WESTERN- CAN -COMPANY ' ;499
torily discharging its employees by discriminating in regard to their hire and
tenure of employment or any term or condition of employment ;
(b) In any like or similar manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization to form labor
organizations, to bargain collectively through representatives of their own
choosing and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of the
Act and the Act as amended.
2. Take the following affirmative action which I find will effectuate the
policies of the Act :
(a) Make whole John B. Olson, Charles M. Kinsman , Fred Wiese,' William
Tallon, Hans Ernst Paczinsky, Nello Petri, and Gino Dentesano in the manner
set forth in Section V above, entitled "The remedy" ;
(b) Post at its plant in San Francisco, California, copies of the notice attached
hereto and marked "Appendix." Copies of said notice, to be furnished by the
Regional Director for the Twentieth Region, after being duly signed by repre-
sentatives of Western shall be posted by Western immediately upon receipt
thereof and maintained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to employees
customarily are posted. Reasonable steps shall be taken by Western to insure
that said notices are not altered, defaced or covered by other material; and
(c) Notify the Regional Director for the Twentieth Region (San Francisco,
California) in writing within ten (10) days from the receipt of this Intermediate
Report and Recommended Order what steps Western has taken to comply here-
with.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Rochambeau Building, Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report and Recommended Order or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and six copies of a brief in support thereof ; and any
party may, within the same period, file an original and six copies of a brief in
support of the Intermediate Report and Recommended Order. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing
the same shall serve a copy thereof upon each of the other parties . Statements
of exceptions and briefs shall designate by precise citation the portions of the
record relied upon and shall be legibly printed or mimeographed, and if mimeo-
graphed shall be double spaced. Proof of service on the other parties of all papers
filed with the Board shall be promptly made as required by Section 203.85. As
further provided in said Section 203.46 should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of service of the order transferring
the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by-the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 5th day of November 1948.
WALLACE E. ROYSTER,
Trial Examiner.
500 DECISIONS OF, NATIONALS IsABQR^ RELATIONS BOARD
'APPENDIX -, !it I t , .
• , , , , f
r
NOTICE TO ALL EMPLOYEES . r
Pursuant , to, the recommendations , of a Trial, Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the'National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT encourage membership in or.activity on behalf of INTERNA-
TIONAL ASSOCIATION' OF MACHINISTS, LODGE' No. 68,, or' in any other latter
organization of our employees by discriminating against any of them tin
regard to their hire or tenure of employment except as may be required
!by the terms of a valid collective bargaining agreement.
WE wna, make whole the employees named below for any loss of, pay
suffered as a result of the discrimination :
John B. Olson William Tallon
Charles M. Kinsman • Hans Ernst Paczinsky
Fred Wiese - Nello Petri
.Gino Dentesano
M. •J. B. Co.,, d/b/a WESTERN CAN- COMPANY.
Bmployer.
:By -----------------------------------
Dated -------------------- ( Representative ) (Title),
This notice must remain posted for 60-days from the date hereof, and must-not
be altered, defaced, or covered by other material.