Broderick Wood Products Co.

National Labor Relations Board - Board Decisions

Jun 6, 1957

118 N.L.R.B. 38 (N.L.R.B. 1957)

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 4 stores, the integration of the Employer's operations at those
outlets, the regular interchange of employees of the 4 stores, and
the uniformity of wages, working conditions and interests of the em-
ployees at those outlets, we believe that the unit urged by the Employer
is appropriate.
We find that the following employees of the Employer constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act: All sales employees at the Em-
ployer's retail outlets at 112 South Pearl Street, Albany, New York;
121 Broadway, Schenectady, New York; 231 River Street, Troy, New
York; and 547 River Street, Troy, New York, excluding all ware-
house, delivery, service, clerical, advertising, and administrative per
sonnel, guards, and supervisors as defined in the Act?
[Text of Direction of Election omitted from publication.]
7 Stafco employs an outlet manager named Herman Mike who is authorized to see to it
that the two salesmen at the store do their work properly and who can assign salesmen to
assist customers. At times he can rearrange furniture without prior instructions and
can suggest to the Employer 's president better ways of doing so . His recommendations
as to discharge would be given considerable weight. He receives an additional $25 weekly
for his special duties. When the president is away from the store , which occurs about 10
percent of the time, Mike is in complete charge of the store . This is also true during
vacation periods. In these circumstances, we find that Mike is a supervisor and shall
exclude him from the unit. -
Broderick Wood Products Company and Casey Simpson, Elmer
Bickford , Mike Trujillo, Arsenio Lucero , Max Trujillo, Jose A.
Sanchez, Maurilio Padilla , Frank M. Lewis, Leopoldo L. Lopez,
Leroy D. Gross
International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men & Helpers of America, Local No. 13, AFL-CIO and Casey
Simpson, Elmer Bickford, Mike Trujillo , Arsenio Lucero, Max
Trujillo, Jose A. Sanchez, Maurilio Padilla , Frank M. Lewis, Le-
roy D. Gross. Cases Nos. 30-CA-444, 30-CA-445, 30-CA-446,
30-CA-446-1, 30-CA-146-2, 30-CA-446-3, 30-CA-446-4, 30-CA-
452, 30-CA-457, 30-CA-464, 30-CB-59; 30-CB-60, 30-CB-61, 30-
CB-61-1, 30-CB-61-2, 30-CB-61-3, 30-CB--61-4, 30-CB-61-4, and
30-CB-64. June 6,1957
DECISION AND ORDER
On September 24, 1956, Trial Examiner Martin S. Bennett issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from. and take certain affirmative action, as set forth in the copy of the
118 NLRB No. S.
BRODERICK WOOD PRODUCTS COMPANY 39
Intermediate Report attached hereto. He also found that the Re-
spondents had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the General Counsel, the Respondent Company,
and the Respondent Union filed exceptions to the Intermediate Report
and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Murdock and Bean].
. The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in these cases and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
1. Respondent Company, Broderick Wood Products Company,
Denver, Colorado, its officers, agents, successors, and assigns, shall :
(a) Cease and desist from :
(1) Giving effect to, performing, or in any way enforcing its agree-
ment of November 11, 1955, with Respondent Union, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Local No. 13, AFL-CIO, or entering into any extension,
renewal, modification, or supplement thereof, or any other contract
with said Respondent Union covering Plants 1 and 2 in Denver,
Colorado, unless and until that labor organization shall have been
duly certified by the Board as the representative of the employees of
Respondent Company.
(2) Recognizing Respondent Union, or any successor thereto, as
the collective-bargaining representative of any employees employed
at Plants 1 and 2 in Denver, Colorado, unless and until said Respondent
I The requests of the Respondent Company and the Respondent Union for oral argu-
ment are hereby denied as , in our opinion , the record , exceptions, and briefs adequately
present the issues and positions of the parties.
2 We concur in the Trial Examiner 's finding that the acquisition of Plant 2 by the
Respondent Company constituted an accretion to Plant 1 , that the only appropriate unit
consisted of employees at both plants , and that the Respondent Company did not violate
Section 8 ( a) (2) of the Act solely by extending its contract with the Respondent Union
to Plant 2 employees . However , we find it unnecessary to and do not adopt his findings
as to the Respondent Company's liability under Midwest Piping & Supply Co., Inc., 63
NLRB 1060 , and William D . Gibson Co ., 110 NLRB 660, if the Company had recognized
the Respondent Union as bargaining agent for a unit different from that found appropriate
herein.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union shall have been duly certified by the Board as the representa-
tive of such employees.
(3) Encouraging membership in Respondent Union or in any other
labor organization , by discharging employees , or by discriminating
against employees in any other manner in regard to hire and tenure of
employment or any term or condition thereof, except to the extent
permitted under Section 8 (a) (3) of the Act.
(4) Interfering with, restraining , or coercing its employees in the
right to engage in or refrain from engaging in any or all of the ac-
tivities guaranteed them by Section 7 of the Act, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment , executed
in conformity with 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) Withdraw and withhold recognition from the Respondent
Union or any successive labor organization as the representative of its
employees at Plants 1 and 2 in Denver , Colorado, unless and until
such labor organization shall be certified by the Board as their bar-
gaining agent.
(2) Jointly and severally with Respondent Union make whole the
employees named in Appendix A attached to the Intermediate Re-
port, exclusive of George Quintana , Ernest Ulibarri , Larry Vallejos,
and A. A. . Velasquez , for any loss of pay suffered by reason of the
discrimination against them in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(3) Make whole George Quintana , Ernest Ulibarri , Larry Valle-
jos, and A. A. Velasquez for any loss of pay suffered by reason of the
discrimination against them in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(4) Offer immediate and full reinstatement to Leroy D. Gross and
to those employees named in Appendix A attached to the Intermediate
Report who have not been reinstated to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges.
(5) Jointly and severally with Respondent Union reimburse its
employees for all initiation fees and dues in Respondent Union involv-
ing employees of Plants 1 ' and 2 in Denver, Colorado , paid subsequent
to June 9, 1955 , pursuant to the contracts or any superseding agree-
ments between Respondent Company and Respondent Union.
(6) Preserve and make available to the Board or its agents, upon
request, for examination and copying , all payroll records, social-
security payment records, timecards, personnel records, reports, and
all other records necessary to analyze the amounts of back pay due.
BRODERICK WOOD PRODUCTS COMPANY 41
(7) Post at Plants 1 and 2, Denver, Colorado, copies of the notice
attached to the Intermediate Report marked "Appendix A." 3 Copies
of said notice, to be furnished by the Regional Director for the Seven-
teenth Region, shall, after being signed by Respondent Company's.
authorized representative, be posted by it immediately upon receipt
thereof and maintained for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Respond-
ent Company to insure that said notices are not altered, defaced, or
covered by any other material.
(8) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
2. Respondent Union, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local No. 13,.
AFL-CIO, Denver, Colorado, its officers, representatives, agents, suc-
cessors, and assigns, shall:
(a) Cease and desist from :
(1) Giving effect to, performing, or in any way enforcing its agree-
ment of November 11, 1955, with Broderick Wood Products Company,
or entering into or enforcing any extension, renewal, modification, or
supplement thereto, or any other contract with said Company covering
Plants 1 and 2, unless and until it shall have been duly certified by the
Board as the representative of such employees.
(2) Causing or attempting to cause Respondent Company, its
officers, agents, successors, or assigns to discharge, suspend, lay off, or
discriminate in any other manner against its employees in regard to
hire or tenure of employment, except to the extent permitted under
Section 8 (a) (3) of the Act.
(3) Restraining or coercing the employees of Respondent Com-
pany in the right to engage in or refrain from engaging in any or all of
the activities guaranteed 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, executed in conformity with 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) Jointly and severally with Respondent Company make whole
the employees named in Appendix B attached to the Intermediate
Report for any loss of pay suffered by reason of the discrimination
3 This notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order." In the event that this Order is en-
forced 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."
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against them in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(2) Jointly and severally with Respondent Company reimburse the
employees of Plants 1 and 2 of Respondent Company for all initiation
fees and dues in Respondent Union paid subsequent to June 9, 1955,
pursuant to the contracts or any superseding . agreements between
Respondent Company and Respondent Union.
(3) Notify Respondent Company and the employees ordered rein-
stated, in writing, that it has no objection to the employment by
Respondent Company of any employees named in Appendix B at-
tached to the Intermediate Report who have not been reinstated, said
list to be furnished Respondent Union by Respondent Company.
(4) Post at its business offices in Denver, Colorado, copies of the
notice attached to the Intermediate Report marked. "Appendix B.11 '
Copies of said notice, to be furnished by the Regional Director for the
Seventeenth Region, shall, after being duly signed by the representa-
tive of Respondent Union, be posted by Respondent Union immedi-
ately upon receipt thereof and be maintained by it for sixty (60)
consecutive days thereafter. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material.
(5) Mail to the Regional Director for the Seventeenth Region
signed copies of the notice attached to the Intermediate Report
marked "Appendix B" for posting, Respondent Company willing, in
Plants 1 and 2 of the above-named Company for sixty (60) consecutive
-days in places where notices to employees are customarily posted.
Copies of said notice, to be furnished by the Regional Director for the
Seventeenth Region, shall, after being duly signed by an authorized
representative of Respondent Union, be forthwith returned to said
Regional Director for such posting.
(6) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
IT IS FIIRTITER ORDERED that the complaint, insofar as it alleges that
Respondent Company discriminated against Leopoldo L. Lopez be,
.and it hereby is, dismissed.
4 Ibid.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF. THE CASE
This proceeding is brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat . 136, and stems from a complaint issued by the General Counsel of
the National Labor Relations Board against Broderick Wood Products Company
and against International Brotherhood of Teamsters, Chauffeurs , Warehousemen &
Helpers of America, Local No. 13, AFL-CIO. The complaint dated April 30, 1956,
alleged that Respondents had engaged in unfair labor practices , Respondent Company
within the meaning of Section 8 (a), (1), (2 ), and (3 ), and Respondent Union within
BRODERICK WOOD PRODUCTS COMPANY 43
the meaning of Section 8 (b) (1) (A) and (2) of the Act. Copies of the complaint,
the charges upon which it was based, and notice of hearing thereon were duly served
upon Respondents.
The complaint alleged that: (1) Respondents had maintained a collective-bargain-
ing agreement containing unlawful union-security provisions subsequent to June
9, 1955, this date apparently referring to a date 6 months prior to the filing and
service of the instant charges; (2) on or about August 2, 1955, Respondents ex-
tended their collective-bargaining agreement to a newly acquired plant of Respondent
Company although said plant "could constitute a separate unit appropriate for the
purposes of collective bargaining"; (3) on or about November 11, 1955, Respondents
entered into a collective-bargaining agreement covering both plants containing
unlawful union-security provisions; (4) on or about December 5, 1955, Respondent
Company notified 60 named employees, their names among those appearing in
Appendix A attached hereto, to regain or acquire membership in good standing
in Respondent Union and, on December 6 and 8, 1955, discharged said employees
at the request of Respondent Union under color of the alleged unlawful agreement
of November 11, 1955, although Respondent Company had reasonable grounds for
believing that the discharges were requested for reasons other than the failure of
said employees to tender periodic dues and initiation fees uniformly required; (5)
during August and September of 1955, pursuant to an unlawful union-security
.agreement, Respondent Company checked off initiation fees from the earnings of
25 named employees who had signed authorization forms for such checkoffs and
remitted same to Respondent Union in the amounts of $630 on September 2 and
$120 on September 7, 1955; 1 (6) on or about December 8, 1955, pursuant to the
unlawful union-security agreement of November 11, 1955, Respondent Company
discharged 9 named employees and conditioned their further employment upon
"clearance" by Respondent Union; 2 (7) on or about January 31, 1956, Respondent
Company discharged Leroy D. Gross at the request of the Respondent Union pursuant
to the unlawful union-security agreement of November 11, 1955; and (8) the
request of Respondent Union to discharge the 60. named employees was made,
inter alia, because of their protected concerted activity in support of a decertification
petition in Broderick Wood Products Company, Case No. 30-RD-56, a petition
designed to remove Respondent Union as their bargaining representative and not
because of their nonpayment of periodic dues or initiation fees.
Respondent Company duly filed an answer wherein it admitted the contractual
relationship with Respondent Union and that initiation fees, as alleged, had been
deducted and remitted, and alleged that the union-security clause of the contract
had been properly invoked. Respondent Union duly filed an answer wherein it
denied the commission of any unfair labor practices, alleged that the decertification
petition, referred to above, was filed in behalf of a noncomplying labor organization,
viz, United Mineworkers of America, and alleged that the alleged concerted activity
in support of the petition constituted fronting in an effort to evade the provisions
of Section 9 (f), (g), and (h) of the Act.
Pursuant to notice, a hearing was held at Denver, Colorado, on May 23, 24, and
25 and on June 18, 19, and 20, 1956, before the duly designated Trial Examiner.
The parties were represented by counsel who were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce relevant evidence.
At the close of the hearing the parties were afforded an opportunity to argue orally
and to file briefs. Oral argument was waived and briefs have been received from
the General Counsel and from Respondents. Ruling was reserved at the conclusion
of the hearing on a motion by Respondents to dismiss the complaint in its entirety.
Except as otherwise indicated, the motion is hereby denied for reasons appearing
below.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANY
. Broderick Wood Products Company is a Colorado corporation which maintains
its principal office in Denver, Colorado. Among other business activities, it
operates two plants in Denver where it is engaged in the production of telephone poles,
I Of these 25, 21. are included in the group of 60 described above. The other four are
Sylvester Ftarper, W. C. McCaskill, David Summers, and Joe Valdez.
2 Of these 9, 4, Ernest Cordova, Raymond Garcia, Joe Martin, and Willie Ulibarri are
also named In the previously identified group of 60; 5 others, Leopoldo L. Lopez, George
Quintana, Ernest Ulibarri, Larry Vallejos, and A. A. Velasquez are not so named.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fence posts, and railroad ties, and in the pressure treatment of same for preservation
against weather and insect attack. During the year 1955 Respondent Company
shipped wood products valued in excess of $100,000 from its Denver plants to points
outside the State of Colorado; as will appear below, one of these plants entered
production late in 1955. I find that Respondent Company is engaged in commerce
within the meaning of the Act and that it would effectuate the purpose of the Act
to assert jurisdiction herein.
It. THE LABOR ORGANIZATION INVOLVED
Respondent Union, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, Local No. 13, AFL-CIO, is a labor organization
admitting to membership the employees of Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
1. Contractual history
Respondent Company and Respondent Teamsters have enjoyed a contractual
relationship for some years. In January of 1947, in Case No. 17-RD-30, they
entered into an agreement providing for a cross-check of union authorization cards
by a Regional Director of the Board. This cross-check was duly held and Respondent
Union received 8 votes from the 9 employees then in the unit; it was duly desig-
nated as bargaining representative by the Regional Director. This unit was the
customary production and maintenance unit in what has come to be known as
Plant 1. By 1955, the period material herein, Plant 1 had expanded to approximately
40 employees, and the number was apparently still higher on or about December 1.
Respondent Broderick promptly entered into a collective-bargaining agreement
with Respondent Teamsters on or about February 15, 1947. This collective-bargain-
ing relationship has continued until the present time, and has been marked by-rather
informal dealings. More specifically, the 1947 contract was renegotiated each year
on or about its anniversary date and certain minor changes were agreed upon, but
no other written agreements were executed until 1955. The changes dealt primarily
with wages, and these new wage rates and other minor changes were put into
effect each year. In fact, the only written record of the amendments which is in
evidence herein is the working copy of the 1947 contract retained by General
Manager Samuel Tait of Respondent Broderick who annually noted in the corner
of his copy the various wage increases that had been agreed upon.
The original contract contained the following language in article II treating
with union security:
UNION SECURITY: All present employees who are now members, and those
employees who may become members of the Union, shall be and remain mem-
bers of the Union during the life of this contract. All new employees of the
Employer shall become members of the Union within ten (10) days after
their first date of employment by the Employer, and maintain their membership
in the Union in good standing during the life of this contract. Preference shall
be given, in hiring new employees to members of the Union who are capable,
in the opinion of the Employer, to perform the work in the Employers plant.
In article XVII, this contract further provided as follows:
GOVERNMENT INTERVENTION: In the event a Federal or State Government
passes a law, during the life of this agreement, providing for any condition con-
trary to the terms of this agreement, it is mutually understood and agreed that
said law shall supersede any condition or provision as set forth herein.
The international constitution of Teamsters provides as follows in section 5 (c)
thereof:
All members paying dues to local unions must pay them on or before the
first business day of the current month in advance. Any member failing to
pay his dues at such time shall not be in good standing. Any member who shall
be three months in arrears in the payment of dues, fines, assessments or other
charges, at the end of the third month shall automatically stand suspended and
shall not be entitled to any rights or privileges as a member of the local Union
,or International Union. Local unions may provide suspension or expulsion
for lesser period of arrears.
BRODERICK WOOD PRODUCTS COMPANY 45
In February of 1955 the contract was reopened by the parties and three negotiating
meetings were held in March. Certain changes were agreed upon, including a new
wage scale, improvement in holiday benefits, and discontinuance of the checkoff of
union dues by Respondent Company; this last change was brought about pursuant
to the request of a number of employees. As had been the case from 1948 on, no
written agreement was prepared but the improved working conditions agreed upon
were promptly put into effect and the wage increase was made retroactive to Febru-
ary 15, the anniversary of the original contract.
On November 8, 1955, General Manager Tait of Respondent Broderick wrote to
President Francis H. Salter of Respondent Teamsters. Tait referred to the agree-
ments arrived at during the previous March and proposed that a new agreement be
drawn up for the period commencing February 15, 1955, inasmuch as the only
(written) contract in existence was the 1947 agreement which had been changed
considerably, particularly in job classifications and wage rates.
Salter proceeded to prepare a new contract. He instructed his office staff to draw
up a new agreement which would incorporate all changes made subsequent to the
execution of the 1947 agreement. According to Salter, there was no discussion with
Respondent Company, prior to the typing of the agreement, of article II and the
union-security language of the old agreement, and the notes of the bargaining meet-
ings held during the prior March are silent concerning this topic. The signing of
the agreement was handled as a routine matter with no attending discussion and
it was signed by Tait at the Teamsters' office. It is a fair. statement on this record
-that the concern of the parties was primarily with changes in money matters as
wages. paid holidays, etc. The new agreement contains the typed-in date of February
15, 1955, as its effective date. In its final paragraph, the date of March 25, 1955,
was written in by Salter as the ostensible date of execution of the agreement. Accord-
ing to Salter, he selected this date because it was a date close to the date actual
negotiations were concluded. However, the actual signing, as Tait testified, took
place on November 11, 1956.
The language of this contract is almost identical with that of the earlier contract
save for several changes specified below. Article II, set forth below, was changed
in only one respect, namely, to give new employees 31 instead of 10 days to join
the Union. There was no discussion of this change which had been undertaken
unilaterally by Salter; in fact, this article of the contract was not discussed at all.
Article XVI of the original contract providing for the checkoff, was deleted from
the new contract in its entirety, as agreed upon the previous March. Article XVII of
the original contract, treating with future legislation and its effect on the agreement,
was retained unchanged but was renumbered article XVI. The term of the contract
was specified as 1 year until February 15, 1956, with an automatic renewal clause
from year to year unless terminated pursuant to due notice specified therein; it is
presumably currently in effect. Article II of the new contract reads as follows:
UNION SECURITY: All present employees who are now members, and those
employees who may become members of the Union, shall be and remain mem-
bers of the Union during the life of this contract. All new employees hired
after the execution of this Agreement, shall become members of the Union
within thirty-one (31) days after their first date of employement [sic] by the
Employer, and maintain their membership in the Union in good standing dur-
ing the life of this contract. Preference shall be given, in hiring new employees
to members of the Union who are capable, in the opinion of the Employer, to
perform the work in the Employer's plant.
2. Acquisition of Plant 2
For some years prior to August 1955, Western Wood Preserving, Inc., a Colorado
corporation, herein called Western, had operated a plant located 475 feet from
Plant 1. It had been a direct competitor of Respondent Broderick and was engaged
in an identical business venture. So far as this record indicates, it was in no way
owned, controlled, or operated by Broderick. Early in 1955, Western decided to
suspend operation of this plant and thereafter agreed to lease the premises to Re-
spondent Company for a period of 5 years effective August 1, 1955. Several days
prior to August 1, Western ceased business operations and terminated and paid off all
,of its 28 employees.
General Manager Tait of Broderick interviewed this group of emnloyees on July
30 and August 1 and offered them the same wages and working conditions as existed
at Plant 1; the wage rates were in some cases higher and in some cases lower than
the rates previously paid by Western. There was no discussion of union affiliation or
membership. Twenty-six of the twenty-eight Western employees were hired by
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Broderick which took over the physical operation of the plant on August 1, 1955.
After several days of necessary maintenance work, actual production with a full
crew commenced on August 4, 1955. This plant became known and is herein re-
ferred to as Plant 2. According to Tait, the reason for the leasing of the Plant 2
premises was the high volume of business and the resulting inability of Respondent
Company to meet deadlines on orders. He testified, and I find, that a desired expan-
sion of Plant 1 facilities would require a substantial outlay of capital and that the
lease of Plant 2 avoided this expense. Also playing a part in this decision not to
expand Plant I was the uncertain timber supply, a situation which was expected to
be clearer in 5 years.3
3. Labor relations at Plant 2
The employees at Plant 2 under Western had been represented by Local Union
13237, District 50, United Mine Workers of America, for some time, at least since
1946. The most recent contract was a 1-year contract dated February 15, 1955,
and apparently signed March 4, 1955. There is no claim herein by the General
Counsel that this contract carried over to Respondent Company and imposed any
liability thereunder, subsequent to the suspension of business operations by Western
just prior to August 1, 1955.
Soon after Respondent Company commenced the operation of Plant 2, demands
for recognition as bargaining representative for the employees of that plant were
presented both by United Mine Workers and Teamsters. The requests for recogni-
tion by Mine Workers were confined solely to the employees of Plant 2. Thus,
George McCreedy, a representative of District 50 of Mine Workers, visited General
Manager Tait and Samuel Oakford, then assistant to the president of Respondent
Company, at least three times during August. McCreedy stated that his organiza-
tion represented all the employees at Plant 2, was their bargaining agent, and that
they had a contract with Western. The first of these visits took place some time
between August 3 and 5, 1955. The representatives of Broderick took the position
that the Western contract was no longer operative as a matter of law and that
Mine Workers would not be recognized until it acquired representative status through
the processes of the Board. In addition, Casey Simpson, president of Local 13237
of Mine Workers and an employee of Western who was hired by Broderick on or
about August 1, visited Oakford approximately three times in August, took up the
issue of recognition of Mine Workers, and was given substantially the same reply
as that given to McCreedy.
According to President Francis Salter of Local 13 of Teamsters, he learned during
August that Mine Workers was seeking recognition of the employees of Respondent
Company, and a request for recognition by Teamsters as the representative of the
employees of Plant 2 was soon forthcoming. It was in written form and, according
to Oakford, was received subsequent to 1 or 2 of the Simpson visits described above.
Although this letter from Salter to Broderick is dated August 5, 1955, there is evi-
dence to warrant a finding that it was sent at a later date. First, the letter appeared
on the desk of General Manager Tait on August 17 and Respondent Company in
effect concedes herein that the letter was received on or about that date. Second,
the text of the letter refers to the placing of Plant 2 in operation on or about August
8 and more particularly refers to this act in the past tense. I find therefore, even
allowing for a slight delay in mail handling, that the letter was mailed subsequent
to August 8 but prior to August 17.
This letter from Teamsters pointed out that the work in both plants was identical,
that the same skills were involved, that both plants were operated under centralized
control of personnel and working conditions, and that there was interchange of
personnel between the two plants. Salter then claimed that Plant 2 was an "accre-
tion" to the existing production and maintenance unit in Plant 1 covered by the cur-
rent labor agreement, and that all employees in Plant 2 were required to join Local
13 within 30 days of the commencement of their employment.
This claim by Local 13 was found to be meritorious by Respondent Company.
Oakford and Tait, after a review of the contract, concluded that Plant 2 was an ac-
cretion to the existing unit and that the existing contract covered the employees of
that plant. They so informed McCreedy in one of his visits. Moreover, they had
copies of the letter from Local 13 prepared for distribution among Plant 2 employees.
About mid-August, representatives of Local 13 circulated cards labeled "Assign-
ment" among the Plant 2 personnel and obtained 25 signatures , these constituting
S There is some evidence that Local 13 now represents Broderick employees at a still
newer plant in Denver known as Plant 3. This aspect of the ease was not litigated
however.
BRODERICK WOOD PRODUCTS COMPANY 47
approximately all the employees of the plant. These cards authorized Broderick
to deduct union initiation fees of $30, apparently in installments.
The cards are'dated August 17, 18, and 19 and September 1 and 6, with the large
majority dated August 19. The cards were honored by Broderick and the initiation
fees of 21 employees were remitted to Local 13 on September 2 and the fees of 4
more on September 7. These are the 25 cases described in the complaint. As
heretofore indicated, the checkoff of dues at Plant 1 had been expressly abandoned
in the previous March and there have been no dues deductions by the checkoff sys-
tem at Plant 2.4
4. Dues delinquencies and the decertification petition
Two events of major significance herein took place on the same date, December 2.
One was a written demand by Teamsters dated Friday, December 2, and delivered
by messenger the same day to Broderick, that 54 named employees of both plants
be forthwith discharged. The reason asserted by President Salter for the discharge
of the men was the failure of the named employees to maintain good standing in
Teamsters, as required by the contract in article II. It will be recalled that the
contract then in existence had actually been signed on November 11, 1955. Salter,
on November 29 or 30, had given an office clerical instruction to compile a list
of Broderick employees who were delinquent in dues. As is apparent, this group
of 54, together with 8 more named in a subsequent letter, constituted almost the
entire complement of personnel in both plants. It may be noted that the letter
of December 2 actually contained 55 names, but 1 was stricken therefrom and his
case is not in litigation herein.
During the ensuing weekend, Oakford had a number of telephone conversations
with Salter. Oakford strongly protested the receipt of such an unprecedented
demand without any advance notice, as was the fact; complained of the consequences
to production resulting from the discharge of almost the entire complement of
personnel; stated that the men would not be terminated before they had a chance
to pay their dues; and prevailed upon Salter to give the employees affected 24 hours
from Monday morning, December 5, to settle up their dues delinquencies. On or
about December 3, the two plant superintendents were instructed to notify the
named employees of the union demand on Monday morning, December 5.
The names of the affected employees were read at work on Monday morning by
management representatives and the employees were advised that they had 24 hours
to achieve or be restored to good standing with Teamsters. A plant committee of
three employees visited General Manager Tait that afternoon to discuss the problem
and one of them, Frank Lewis, telephoned President Salter of Local 13 from Tait's
office and made arrangements for the union office to remain open later that day
so that dues could be paid after the close of the first shift at 4:30 p. m. The union
office was held open until approximately 5:45 p. m., as agreed, but no employees
presented themselves. This resulted from a meeting of employees on Monday
after work at which time they decided to attend to the matter on Tuesday morning,
December 6; as will appear, they did so. It may be noted that the men involved
were permitted to work the entire day on Monday subsequent to the reading of
their names that morning.
At this point, Respondent Union's contention that the men were discharged on
December 5 may be disposed of, for the record clearly demonstrates the contrary.
In fact, Respondent Company's answer in essence makes a contrary claim. The
action of Superintendent Foster at Plant 1, for example , was only to tell the men
that they were laid off until they cleared with Teamsters. And, Mike Trujillo,
1 of the 3 committeemen who visited Tait that afternoon, credibly testified that Tait
told them their jobs would be open if they settled with Teamsters. Indeed, Tait
denied in his testimony that he told the men they were discharged. Moreover,
the very sending of the men to the Union is incompatible with the concept of a
discharge and the great majority was later returned to work. I find, therefore,
that the men whose names were read on Monday were not discharged but were
rather suspended and directed to clean up their dues arrears on penalty of discharge.5
*The cards also provide for dues deductions but that portion of the card was not put
into effect.
5 Respondent Company conceded that all whose names appeared on the December 2
letter as well as the December 5 letter, described below, were notified of the union demand.
During the hearing , a reservation was expressed as to Joe Martin, named in the Decem-
ber 5 letter, but the record indicates, and I find. that he was instructed by Superintendent
Foster to pay up his dues.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 5, Salter sent another letter to Tait requesting the dismissal of 8
additional employees, 6 for failure to pay dues, and 2 for failure to join Local 13.
This letter was received by mail on December 6. According to Salter, this list con-
tained a group of names inadvertently omitted from the original list. The record is
not entirely clear as to the action Broderick took with respect to this group. It
appears that they were just about the only employees at Plant 2 unaffected by
the earlier letter demanding the discharge of employees, that Broderick found it
necessary to utilize them on December 6 in vital maintenance operations, such
as firing boilers, and that the men were given an opportunity to visit the union
offices on company time. It also appears that of the entire complement of per-
sonnel at Plant 1, only 5 or 6 men were not -affected by the original demand received
on December 2 and that General Manager Tait immediately placed those men
on similar vital maintenance posts on various shifts.
The other major event taking place on December 2, which is germane to a
consideration of events as they subsequently unfolded on Tuesday, December 6, is
.a decertification petition filed with the Board on December 2 in Broderick Wood
Products Company, Case 30-RD-56. The existence of this petition and activity
in support thereof is expressly alleged by the General Counsel, as will appear later,
as a reason for the demand for discharge of the Broderick employees. Corollary
thereto is the claim of Respondent, treated below, that this was actually "fronting"
for United Mine Workers, a noncomplying labor organization, in an indirect attempt
.of the latter to recover its status as representative of Plant 2 employees.
This petition was signed by Casey Simpson and described the unit involved as
"all production and maintenance employees," numbering 75. This total would
obviously include the personnel of both plants, and Simpson testified that he had
'both plants in mind as one unit when he filed the petition.6
Simpson testified and I find that the activity in support of the decertification
petition commenced about 2 weeks prior to its filing on December 2, although there
is evidence that the matter was considered for a longer period. Pursuant to the
decision to file a decertification petition, sheets of paper were passed out at both
plants bearing the following typed caption:
The men whose names appear on this list and who are employees of Broderick
Wood Products Company, whose plants are located at 5600 Huron and 5301
Bannock, Denver, Colorado, request the National Labor Relations Board to
conduct an election to decertify the Teamsters Union A. F. L. as the bargaining
agent. Dated-
Forty-two employees signed the 2 copies of this petition circulated at Plant 1,
and 22 signed the single copy circulated at Plant 2, obviously almost all the com-
plement of personnel. There is evidence authenticating the signatures of a great
many of this number. All three copies were ultimately turned over to Simpson
for filing with the Board. According to Simpson, the filled-out copy circulated at
Plant 2 was returned to him completed on or about November 30. Simpson pro-
ceeded to place the date of December 1 on all three copies of the petition and
filed them with the Regional Office of the Board in Denver on the following day,
December 2, in support of his decertification petition. The matter was heard on
December 12 and during the course of the present hearing, the petition was
withdrawn at the request of Simpson.
A copy of the decertification petition proper was mailed on December 2 to
Broderick. It was received in the mail at the Broderick general offices which are
located at a different address in Denver than that of the plants involved herein.
I find, as General Manager Tait testified herein, that the decertification petition
did not come to his attention until Monday morning, December 5. A somewhat
similar situation exists with respect to Respondent Union. Salter testified, and I
find, that he does not work on Saturdays and that as a result the document mailed
to him by the Regional Office did not come to his attention until Monday morning,
December 5. This finding, it may be noted, is limited solely to the actual receipt
by Salter of the Board form and not to knowledge of the decertification activity.
5. Attempts to pay dues on December 6
Pursuant to the informal understanding reached among the men on Monday
evening, December 5, a number of employees from Plants 1 and 2 proceeded to
the Teamsters' office on Tuesday morning, December 6. The number of those
9011 the basis of the expanded bargaining unit with its "accretion" of Plant 2 employees,
this would appear to be consistent with Board policy. Campbell Soup Co., 111 NLRB
234.
BRODERICK WOOD PRODUCTS COMPANY 49
present was variously estimated between 45 and 60 by the employees who testified
herein and between 40 and 50 by President F. H. Salter and his brother, Secretary-
Treasurer John Salter of Teamsters. According to Casey Simpson, just about every-
one on the list of names read on Monday morning, was present and the record
discloses that several employees whose cases are discussed below also were present
although they were not named in the December 2 letter. I find that substantially
all of the 54 employees named in the December 2 letter appeared at the hall on
this occasion.
The precise sequence of events on this day as well as during the next few days
is, as counsel for Respondent Company points out in his brief, somewhat confused.
It is clear that a representative number of Broderick employees approached the
cashier's window on this occasion on Tuesday morning, presented their dues books
and offered to pay their dues. According to Mary Brown, office secretary of Local
13, who customarily handles dues receipts, she uniformly informed these employees
that she was unable to accept their dues until they had seen President Francis
Salter.?
This refusal to accept dues by the cashier was rapidly communicated to the other
employees then present. Brown's statement to the men stemmed from an instruc-
tion given her by Salter several days before. As noted, Salter had instructed her
on November 29 or 30 to compile a list of Broderick employees who were de-
linquent in their dues. Brown had done so and soon thereafter, on or about the
morning of November 30 or December 1, Salter further instructed her not to
accept any dues from Broderick employees, but rather to take their names and
turn the names in to him or his brother John; this, according to Brown, was the
first time such an instruction had been issued. According to Salter, the December
2 letter with its list of dues delinquents was typed on December 1 or 2.
Returning to events on December 6, immediately after the refusal of dues pay-
ments, Frank Lewis and Mike Trujillo, committeemen in Plant 1, entered President
Salter's office; present were Salter, his brother John, and various union business
agents. There is some conflict between the testimony of Frank Lewis and Mike
Trujillo on the one hand, which is substantially supported by that of Casey Simpson
who later entered the meeting, and that of President Salter. John Salter was not
questioned as to the details of this conversation, having left during the course of
the meeting, and the various union business agents did not testify herein. The
testimony of the three employees, although differing in some details, was forth-
right, impressed me as reliable, and is credited where differing from that of Salter.
As Trujillo testified, Salter stated that "he couldn't accept our dues and wouldn't
refuse them." The testimony of Lewis was to the same effect. Lewis testified that
Salter was "all the time referring to this petition that we had before the NLRB,"
stating that he disliked "going to courts"; according to Trujillo, Salter questioned
them "whether we were involved in the petition that was turned in to the Labor
Board." The two employees evaded committing themselves on this issue, although
both had in fact signed the petition circulated in Plant 1 during the 2-week period
prior to December 2. After a short period, Salter, according to Trujillo, asked if
there was any objection to calling in Casey Simpson because Simpson "knew all
about it." Salter admitted that he had made the suggestion because he "under-
stood Casey was quite prominent in this entire situation that had been brought
to my attention from some of the other employees." All agreed that Simpson
should be brought in and he was.
I find, at this point, that Salter's reference to "this entire situation" was a manifest
reference to Simpson's activity in behalf of the decertification petition. While
Salter admittedly knew that Simpson was a leader among the men at Plant 2, he
also knew that Simpson had been president of the Mine Workers Local at Plant 2.
The only thing that Simpson had been prominent in on a two-plant basis, and it
must be remembered that Plant I had the larger complement of personnel, was
in the campaign in support of the decertification petition applicable to both plants.
Stated otherwise, the decertification petition was the only denominator common
to both plants. And, of course, Salter had received, no later than December 5, a
copy of the formal decertification petition filed by Simpson on December 2. In
addition, the remarks made after Simpson entered the meeting strongly substantiate
7 Brown's version of the statement, which I accept, is not substantially different from
that supplied by a number of Broderick employees who unsuccessfully attempted to pay
their does on this occasion. Their versions all reflect the refusal of the proffered dues
payments but are largely silent as to the requirement that they see Salter. In my view,
on either version, the legal conclusions to be drawn therefrom are identical.
450553-58-vol. 118-5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the foregoing. The testimony of Simpson, corroborated by that of Lewis and
Trujillo, is credited where in conflict with that of Salter.
Simpson testified, and I find, that as he entered the room Salter announced that
his case was a simple one, presumably a reference to his dues delinquency of
several months. Salter also stated that Simpson was "the one who started all this."
Simpson admitted that he had filed the petition, according to Trujillo, and Simpson
stated that the men had appeared at the union hall for the purpose of paying their
dues. Salter replied that he could not accept but would not reject the dues and
"we have to get some other business straight." Simpson did not ask Salter to
clarify this "other business," but the context of the conversation discloses that no
clarification was necessary. Simpson asked whether, if the decertification petition
were withdrawn, the men could have a written guaranty that they would not be
discharged. Salter displayed no lack of familiarity with the petition and refused
to make a written guaranty as requested, stating that his word to that effect was
sufficient. Trujillo's testimony is in agreement with that of Lewis, that it all boiled
down to the fact that Salter wanted the petition withdrawn.° Simpson told Salter
that he could not withdraw the petition unless he consulted with the men. The
three employees then decided in the presence of Salter that the Broderick employees
would forthwith hold a meeting and decide whether they wished to withdraw the
petition. Salter gave them permission to use a meeting room in the building and
it was understood that they would notify Salter of their decision.
The assembled employees forthwith held a meeting and were informed by the
committee that they could return to work if they dropped the petition; however,
they voted not to withdraw it. They then left the building without notifying Salter
of their decision. Some of them in the presence of others attempted to pay their
dues, as others had attempted earlier that morning, but were similarly notified by
the cashier that she could not accept their dues and that they should see Salter.
These futile attempts to pay dues rapidly became common knowledge among all
the men involved. It appears that the group named in the December 5 letter re-
ceived on December 6 also visited the Teamsters' hall but did so separately from
the larger group. The date thereof is uncertain, although it was apparently late
on December 6 or shortly thereafter. The record is not clear as to what they were
told, but dues were not accepted.
I find that the involved employees of Respondent Company unconditionally at-
tempted to pay their dues on the morning of December 6 to the cashier who nor-
mally received them, and that Respondent Union refused to accept them. The
Act requires only a proffer of dues and does not permit the acceptance of dues to
be coupled with any other condition, such as a preliminary interview with a union
official. I find that the proffer of dues to the cashier on December 6 was sufficient
to meet the obligation of these employees under the Act and that the remainder
of the employees who witnessed the rejected proffers of dues were not required to
perform a nugatory act. See Union Starch & Refining Co. v. N. L. R. B., 186 F.
2d 1008 (C. A. 7), cert. denied 342 U. S. 815, a closely parallel case involving an
improper requirement that employees attempting to pay dues also attend a union
meeting. See also N. L. R. B. v. International Association of Machinists Local 504,
203 F. 2d 173 (C. A. 9); United Brotherhood of Carpenters, Millmen's Local 824
(Brunswick-Balke-Callender Company), 115 NLRB 518; Murphy's Motor Freight,
113 NLRB 524, enfd. 231 F. 2d 654 (C. A. 3); N. L. R. B. v. A. B. Swinerton,
202 F. 2d 511 (C. A. 9), cert. denied 346 U. S. 814; Eclipse Lumber Co., 95 NLRB
464, 467, enfd. 199 F. 2d 684 (C. A. 9); N. L.. R. B. v. Waterfront Employees of
Washington, at al., 211 F. 2d 946 (C. A. 9); and N. L. R. B. v. The Lummus Co.,
210 F. 2d 377 (C. A. 5).
That afternoon, a three-man committee of Simpson, Mike Trujillo, and Frank
Lewis visited Tait and Oakford at the company office and informed them that the
men affected by the December 2 letter had visited the Teamsters' hail that morning
and that their dues had been refused. Tait, at one point, testified that he questioned
the 3 men and that they admitted they had not proffered their own dues, but his
further testimony, as well as that of Oakford, Simpson, and Trujillo, discloses that
the 2 management representatives were likewise informed that a number of em-
ployees in the presence of the 3 committeemen had attempted to pay their dues and
8 Salter testified that the subject of the decertification petition was raised by Simpson.
IIe also testified that he, Salter, told Simpson it was his business and not Salter's. While.
Simpson admitted on cross-examination that Salter might have made the claimed state
went, nevertheless I find, upon a consideration of the testimony concerning this conversa-
tion and the demeanor of the witnesses, that Salter brought up the decertification
petition, as set forth above.
BRODERICK WOOD PRODUCTS COMPANY 51
that the dues had been refused . I find that Tait and Oakford were on notice at
that moment that dues were being refused by Respondent Union.
Oakford was understandably concerned over the mounting effect on production
of the failure of the men to obtain clearance from Teamsters . He telephoned
President Salter on this day as well as on other occasions and was uniformly assured
that dues were not being refused . As found above, this was contrary to the fact.
Tait testified that the entire group named in the December 2 letter from Teamsters
visited his office and informed him that their dues had been refused ; of this group,
some 15 or 20 actually entered the office proper. Tait initially placed this incident
as taking place on Tuesday afternoon , December 6, but later decided that it took
place on the following day, December 7. A number of employees in the group
testified that they visited Tait on Tuesday rather than Wednesday, although Simpson
agreed with Tait as to Wednesday being the day. Although I am inclined to be-
lieve that this meeting took place on Tuesday , a resolution of this conflict is un-
necessary . What is significant is that management representatives were again in-
formed, and this time by a large number of employees from both plants, that their
dues had been refused by Teamsters. The answer given the employees by Tait on
this occasion , as they uniformly testified , was that Tait could do nothing for them
until they were straightened out with Teamsters.
I further find that as of Wednesday, the employees involved herein had been
suspended, but not discharged; nor had they been replaced by Respondent Com-
pany. For not until that day did Respondent Company, confronted with mounting
production losses, take steps to obtain other employees . Oakford contacted Salter
on that date, December 7, asked him to refer workmen and five were duly sent.
On the same day, the Colorado State Employment Service was notified that workers
were needed, and on December 8 and 9 advertisements were placed in the local
press. By the end of the week , Broderick was back in operation with a full crew,
the great majority of whom were former employees, those involved herein, whose
employment had been interrupted for several days because of the foregoing events.
The employees affected herein began on Wednesday to follow Tait's instructions
to get "straightened out" with Teamsters . Commencing that day, they started
to return to the Teamster office. Eleven Broderick employees saw President
Francis Salter on that day, paid their dues, and were given clearance slips indicating
that they were in good standing. These interviews continued on Thursday and
Friday and were conducted either by Salter or his brother John. According to
President Salter, he informed them that inasmuch as they had signed a decertifica-
tion petition it would be in order for them to sign cards authorizing Teamsters to
represent them. Some 47 such cards were signed during the interviews conducted
between December 7 and 9. It appears that most of the men were interviewed in
groups of two.
The payment of dues was uniformly required as a condition to receiving a
clearance slip, although in several instances clearance slips or work orders were
issued without dues payments upon a promise to make the necessary dues payment
in the near future . Respondent Company refused to restore anyone to employment
without presentation of such a slip and in some instances , due to the lapse of time and
the filling of positions , the men were not reinstated . Some 14 were not reinstated,
but of these, 4 were taken back at a later date.
One of these interviews is of interest herein. Elmer Bickford and Orland Morten-
sen visited the Teamsters hall together on Thursday , December 8, at which time
both paid their dues , signed a card authorizing Teamsters to represent them, and
received work orders. Their interview was conducted by both Salters and John
Salter asked them if they had signed the petition , stating that he, Salter, had heard
a rumor that someone was receiving $ 50 a day to introduce another union and asking
whether the 2 men knew the identity of this person . Both men denied any familiarity
with the petition and it was only then that their dues were accepted and clearance
slips issued to them . The two men were advised that if any similar situation arose
to advise the Teamsters thereof. They returned to the plant on the same day but
were not restored to work until some days thereafter . This serves only to demon-
strate that this was far more than a dues-collecting effort on the part of Respondent
Union and involved its concern with the decertification activity and petition.
B. Contentions, analysis, and conclusions
1. The extension of the contract to Plant 2
The General Counsel has contended herein that the employees of Plant 2 were
deprived of their right to select or to refrain from selecting a collective-bargaining
representative of their own choosing . This contention is based upon the fact that
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Company agreed with the claim presented by Respondent Union during
August 1955 that the existing collective-bargaining agreement should be made
applicable to Plant 2 because Plant 2 constituted under Board decisions on the
appropriate unit issue an "accretion" to the existing unit. This actually involved
the extension of the 1947 contract, as amended , to Plant 2 because the 1955 agreement
was not signed until November 11, 1955. This claim, it may be noted, is presented
by the General Counsel and considered herein independently of the alleged illegal
union-security language in the contract, a matter which is considered below.
The basic premise of the General Counsel is that the employees of Plant 2 could
have constituted a separate unit and, at the very least, were entitled to an election
to determine whether they desired separate representation or, in the alternative,
representation in the same unit as Plant 1 employees.
This claim of the General Counsel may have a surface merit standing alone, but
when consideration is given to what Broderick intended to achieve by acquiring the
Plant 2 premises and to what it proceeded to achieve, the evidence heavily prepon-
derates in favor of Respondents' claim that Plant 2 did in fact constitute an
accretion to Plant 1. There have not been many Board decisions on this particular
topic, but as I understand Board doctrine it actually boils down to the holding
that an accretion logically constitutes a part of the existing unit and that a separate
election is not in order. Stated otherwise, changes in the nature of the business
operation in effect dictate the scope of the bargaining unit.
Broderick acquired Plant 2, which was located virtually adjacent to Plant 1 and
had been engaged in precisely the same business, with the thought of integrating it
into its existing operation and operating both plants as a single unit, thus doubling
productive capacity without investing in new production facilities. They hoped to
thereby eliminate parallel administrative forces and inventories and in fact did so.
Wage scales and working conditions at Plant 2 were conformed precisely to those
at Plant 1. There has since been an interchange of men and materiel, a pooling
of production for shipment, and filling of orders from both inventories. This is
still in effect.
In fact, Broderick leased Plant 2 as an alternative to an expansion of Plant I
facilities in order to meet increased orders for its products. There is evidence that
shipments of merchandise to customers were thereafter filled partly from inventory
at Plant I and partly from inventory at Plant 2, the acquisition of Plant 2 rendering
it unnecessary to maintain full inventories at each plant. A single sales and office
staff was set up to function for both plants which, as stated, maintained identical
employee benefits. What actually happened was that the office and sales staffs
of Plant 1 broadened their scope to cover the operations of Plant 2 and that two
office clericals formerly employed by Western were released.
While the General Counsel has cited Pittsburgh Valve Company, 114 NLRB 193,
enforcement denied on other grounds, District 50 United Mine Workers of America
v. N. L. R. B., infra, in support of his position, a footnote in that decision demon-
strates that it is expressly distinguished from the accretion cases within which, I, am
convinced, the present case falls. Thus, in J. W. Rex Company, 115 NLRB 775, the
Board-found in circumstances similar to those of the instant case that a true accretion
had resulted where some of the men had identical classifications, employees had the
same benefits , employees were interchanged , and there was uniform hiring and firing.
See also Saco-Lowell Shops, 107 NLRB 590, 593.
In Hess, Goldsmith & Co., Inc. 110 NLRB 1384, 1387, the Board expressly refused
to find a unit of production and maintenance employees at either of the employer's
2 weaving mills in the same area to be appropriate, pointing out that the 2 plants
operated as a single integrated unit, had common management, had common facili-
ties, and utilized similar employee skills under identical working conditions.
Indeed, the Board pointed out that although one plant was a new one, the mere
acquisition of a new plant did not of itself warrant the holding of a separate election
for that plant.
The decision in Borg-Warner Corporation, 113 NLRB 152, is of interest. In that
case the employer set up a new department for the manufacture of automatic trans-
missions of automobiles . The Board held that newly hired transmission department
employees constituted an accretion to the existing production and maintenance unit.
This involved production of a new item never previously manufactured by that
employer, which had confined itself to the manufacture of carburetors, pumps, and
brakes. The Board stressed in that case ( 1) the similarity of skills and manufac-
turing processes; (2) the decentralized control of labor relations and hiring; (3) the
uniformity of wages, hours, and working conditions; (4) the staffing of the new
department with some transferees from the employer 's other operation ; and (5) the
proximity of the new building to other buildings of that employer. The Board went
on to say that the new department was not entitled to a self-determination election,
BRODERICK WOOD PRODUCTS COMPANY 53
and that there had not been unlawful assistance to the incumbent union by the
extension of the existing union-security agreement to the newly hired transmission
department employees.
This view was approved by the court which denied a petition for review of the
Board's order in Automobile Workers v. N. L. R. B., 231 F. 2d 237 (C. A. 7). The
court there stated:
The Board held that in view of the similarity of skills and manufacturing
processes required throughout employer's operation, and the centralized control
of labor relations and hiring, uniformity of wages, hours, and working condi-
tions, the fact that the new department was staffed with a substantial number
of transferees from employer's other operations, and the proximity of the new
building to the other buildings within the same fenced area, the newly hired
employees of the transmission department constituted an accretion to the
existing production and maintenance unit. It also held that, as an accretion
to an existing unit, these employees would not, under established Board policy,
have been accorded a self-determination election. Accordingly, employer's
extension of its union security contract with the AFL to those employees in
the circumstances of this case did not violate Section 8 (a) (1) or 8 (a) (2) of
the Act.
I believe that the present case is an even stronger one than the Borg-Warner
case in view of the identical operations carried on by these two plants in close
proximity to each other. Accordingly, this contention of the General Counsel is
not accepted and I find that Plant 2 was an accretion to the Plant 1 unit. See
Midwest Conveyor Company, Inc., 116 NLRB 580.
Although not expressely argued herein, this also disposes of the problem whether
at the time recognition was extended to Teamsters for Plant 2, this was done im-
properly in the face of a pending request for recognition by Mine Workers because,
as found, the decision to extend the contract to Plant 2 was made after Mine
Workers had requested recognition as bargaining representative of Plant 2. The
simple answer to all this is that the findings above made as to the accretion constitute
in effect a finding that a unit of the employees of Plants 1 and 2 constitutes the unit
most appropriate for the purposes of collective bargaining. It follows, therefore,
that a unit of Plant 2 employees alone would, under the circumstances of this case,
be inappropriate for the purposes of collective bargaining. Moreover, assuming the
appropriateness of either unit, namely a unit of Plants 1 and 2 or, on the other
hand, a unit of Plant 2 alone, a true Midwest Piping situation is not presented -9
For, it now appears to be Board policy that the signing of a contract with an
incumbent union in the face of a demand for recognition by an outside union does
not constitute unlawful assistance to the incumbent union. William D. Gibson Co.,
110 NLRB 660. In the present case, Teamsters was the incumbent, Plant 1 had
been subject to a union shop and was the larger plant, and Respondents were
convinced that the most appropriate unit was one involving both plants. See also
District 50 United Mine Workers of America V. N. L. R. B., 234 F. 2d 565 (C. A. 4).
2. Legality of the 1947 contract
The General Counsel contends that the 1947 contract contains unlawful union-
security language and that by . its maintenance from June 9, 1955 , a date 6 months
prior to the filing and service of the charges herein, until November 11, 1955, when
the 1955 contract was executed , Respondents have engaged in conduct violative
of the Act.
It is readily apparent that the union -security language of the 1947 contract is un-
lawful in two respects . First , the grace period of 10 days granted new employees
to join Respondent Union is less than the 30 -day statutory period , and, second, it
provides preference in hiring to union members . Both these provisions set up a
degree of union security in excess of that permitted under the Act. It is also ap-
parent , although not specifically raised herein , that the contract has undergone
annual renewals and wage rate changes and it has thus been "renewed or extended"
within the meaning of Section 102 of the Act. Tacoma Harbor Lumber and Timber
Co., 108 NLRB 912, and Consolidated Western Steel Corporation, et al., 108
NLRB 1041.
Respondents have argued that article XVII of the contract has rendered the con-
tract lawful. This article provides that any law passed during the life of the con-
tract providing for conditions contrary to the terms of the agreement shall supersede
such contract terms. Not only is this clause prospective in nature , but, more
9 Midwest Piping & Supply Co., 63 NLRB 1060.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
significantly , it does not contain the specificity of language treating with the deferral
of application of particular contract language which is required under Board policy.
N. L. R. B. v. Gaynor News Company, Inc., 347 U. S. 17, affirming 197 F. 2d 719
(C. A. 2); N. L. R. B. v. United Brotherhood of Carpenters 1 Joiners of America,
Local 517, 230 F. 2d 256 (C. A. 1); N. L. R. B. v. Gottfried Baking Co., 210 F. 2d
772 (C. A. 2); Red Star Express Lines of Auburn, Inc. v. N. L. R. B., 196 F. 2d 78
(C. A. 2); F. H. McGraw and Co., 99 NLRB 695, enforced 206 F. 2d 635
(C. A. 6); Seaboard Terminal and Refrigeration Company, 114 NLRB 1391; City
Window Cleaning Company, 114 NLRB 906; M. B. Morgan, 111 NLRB 395; and
Heating, Piping and Air Conditioning Contractors, 102 NLRB 1646. Moreover, the
discharges herein took place only because the parties attempted to and did utilize
the union-security language of the contract.
The General Counsel claims that there is evidence of actual application of the
preferential hiring clause, whereas Respondents claim that neither the 10-day clause
nor the preferential hiring clause was ever utilized by them. The record does not
provide substantial evidence of the utilization of the preferential hiring clause. The
one instance of hiring through the Union consisted of obtaining five men on De-
cember 7, 1955, under the November 11 contract, but it is significant that other
media were used at the same time. Nor does the record warrant a finding that
these five men were given preference over other applicants.
On the other hand, there is no question but that both unlawful clauses were main-
tained in the contract . There is no evidence that at any time amendatory language
was proposed or that employees subject to the contract or prospective applicants
for employment were put on notice that the language was not in use, as Respondents
contend . The fact is that the contract language was a caveat to employees and to the
labor market at large that these conditions existed. Indeed, Respondent Company
during August had taken steps to advise Plant 2 employees of the claim by Local 13
that the Plant 1 contract was applicable to them.
Respondents contend that under N. L. R. B. v. Rockaway News Supply Company,
Inc., 345 U. S. 71, the ostensibly unlawful language of the contract may be severed
from the remainder of the contract. I deem that decision to be distinguishable. In
that case, the Supreme Court held that an unlawful union-security clasue did not
affect the remainder of the contract so as to remove a no-strike clause as 'a ban to
certain concerted activity unrelated to union security. Moreover, the Court went
on to point out that the illegal provisions of the union-security clause did not in
any way affect the discharge of the complainant in that case, whereas here the clause
itself is in issue and was utilized as a basis for the discharges demanded by the
Union. In fact, absent the clause, the 29 discharges would automatically have been
violative of the Act.
It must be borne in mind that the Act forbids all forms of discrimination except
under the narrow exception permitted by the strictly construed union-security pro-
visions of Section 8 (a) (3). See Convair, a Division of General Dynamics Corpo-
ration, 111 NLRB 1055, where the Board refused to fragmentize a union-security
clause and recognize the allegedly valid portion thereof as a defense to the discharge
of employees. There is no evidence that this union-security language was included
in the contract through inadvertence or error. Accordingly, the case is distinguish-
able with respect to the 8 (a) (3) and 8 (a) (2) aspects from the situation presented
in Monolith Portland Cement Co., 94 NLRB 1558. In addition, the Board has
recently held that it will not accept parol evidence to establish modification of written
union-security agreements. The Board stated that it so ruled "because the obvious
effect of permitting parol evidence in such circumstances would be to establish un-
limited opportunity for avoiding responsible compliance with the Act. Moreover, a
requirement that union security clauses be modified in writing will not impose an
undue burden on parties with a bona fide intent to change a written union security
provision." Jersey Contracting Corp., 112 NLRB 660. See also The Steel Products
Engineering Company, Inc., 116 NLRB-81 1.
I find, therefore, that by maintaining the 1947 contract in effect between June 9
and November 11, 1955, Respondent Company has engaged in unlawful assistance
to Respondent Union and has discriminated in respect to terms of employment,
thereby violating Section 8 (a) (1), (2), and (3) of the Act. I further find that
Respondent Union has thereby engaged in unfair labor practices within the meaning
of Section 8 (b) (1) (A) and (2) of the Act.
3. Legality of the 1955 contract
The General Counsel also attacks the 1955 contract because it still retains the
unlawful preferential hiring clause. The new contract was drawn up by Respondent
Union in November of 1955 and signed on November 11; it purportedly reflects
BRODERICK WOOD PRODUCTS COMPANY 55
the oral understanding reached in the previous March. President Salter of Respondent
Union testified that several days after the signing of the agreement his attorney
pointed out to him that the contract still contained the preferential hiring clause.
However, he decided to do nothing about it and at no time raised the matter with
Respondent Company. He claimed herein that the inclusion of the clause rendered
the contract inaccurate. However, it must be remembered that the clause was not
discussed at any time, either in March or November, and that the language was not
revised. At no time were employees of Respondent Company or the general labor
market advised that the clause was inaccurate or inapplicable.
Thus, this is not a situation where an inaccurate clause lurked unnoticed in a
collective-bargaining agreement. Cf. Monolith Portland Cement Co., supra. Nor
is this a case where a different clause of the agreement totally unrelated to the
union-security language is under attack. Cf. Sinclair Refining Company, 115 NLRB
380. In the present case, the preferential hiring clause is part and parcel of the
union-security language of the contract. It is thus an integral part of the union-
security arrangement devised by Respondents. See Convair, a Division of General
Dynamics Corp., supra.
This brings into play the settled law that apart from the narrow exception afforded
by the union-security provisions of Section 8 (a) (3) of the Act, an employer may
not discriminate against employees or require membership in a labor organization as
a condition of employment. And likewise, a labor organization is precluded from
causing an employer to discriminate or impose such requirements. With this as a
basic purpose of the Act, the narrow exception permitting a limited degree of union
security must, as an exception to such policy, be rigidly adhered to and its require-
ments duly met if it is to constitute a basis for the discharge of employees for reasons
relating to union membership. N. L. R. B. v. Acme Mattress Company, Inc., 192 F.
2d 524 (C. A. 7) and N. L. R. B. v. G. W. Thomas Drayage & Rigging Co., Inc., 206
F. 2d 857 (C. A. 9). And, for the reasons stated in the discussion of the 1947 con-
tract, the Government intervention clause, identical with that found in the earlier
contract, is not specific enough to defer application of the union-security language
of the contract.
I find, therefore, as in the case of the earlier contract, that by executing and
maintaining the 1955 agreement containing unlawful union-security language, namely
the preferential hiring clause, Respondents have engaged in unfair labor practices,
Respondent Company within the meaning of Section 8 (a) (1), (2), and (3), and
Respondent Union within the meaning of Section 8 (b) (1) (A) and (2) of the Act.
4. The suspensions 10
As found, the employees named in the December 2 letter were suspended from
work December 6 pending clearance by Respondent Union. Similar clearance was
required in the case of those named in the December 5 letter although it appears
that some, if not all, of the latter group were permitted to work temporarily due
to the need of their services in this emergency situation, but still subject to union
clearance. This action by Respondent Company at the request of Respondent Union
can only be supported if undertaken on the strength of a valid union-security clause.
It having been found that the union-security clause of the 1955 contract was an
unlawful one, it follows that the suspension of the 60 affected employees named in
the December 2 and 5 letters was also unlawful and violative of the Act." I find
that by terminating or suspending the employment of the first 60 employees named
in Appendix A attached hereto, Respondent Company has engaged in unfair labor
practices within the meaning of Section 8 (a) (1), (2), and (3) and that Respondent
Union by causing such action, has engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and (2) of the Act.
5. Attempts to pay dues; the reason for the discrimination
Assuming that the union-security provisions of the 1955 contract were held to
be valid, whether because of the claim of nonuser of the preferential hiring clause or
10 It is immaterial whether the action taken by Respondent Company effective De-
cember 6 and thereafter be termed discharges or suspensions, although it has been found
to constitute the latter. The fact is that the employment of these employees was inter-
rupted on the strength of the union-security clause of the contract.
11 The letters actually name 63 employees. Of these, 1 name was stricken as listed
erroneously and 2 more cases were not proceeded against by the General Counsel. It is
not clear whether the latter two involved duplication of names or not. This reduces
the total of those involved in this aspect of the case to 60.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise, it follows nevertheless that the suspension of the 60 claimants is still
unlawful. This is so because the Act permits a lawful union-security provision to be
utilized to bring about the discharge of an employee only for nonpayment of dues
or initiation fees and for no other reason. Radio Officers' Union of the Commercial
Telegraphers Union, AFL v. N. L. R. B., 347 U. S. 17; Union Starch & Refining
Co. v. N. L. R. B., 186 F. 2d 1008 (C. A. 7), cert. denied 342 U. S. 815; N. L. R. B.
v. Die and Toolmakers Lodge No. 113, 231 F. 2d 298 (C. A. 7); N. L. R. B. v.
Aluminum Workers International Union, Local No. 135, 230 F. 2d 515 (C. A. 7);
N. L. R. B. v. Local 169, Industrial Division, International Brotherhood of Teamsters,
etc., 228 F. 2d 425 (C. A. 3); and Special Machine and Engineering Co., 109
NLRB 838, enforced 222 F. 2d 429 (C. A. 6).
Insofar as the case against Respondent Union is concerned, it is clear and I have
found that a substantial number of the 60 complainants, in the presence of the
entire group, attempted to pay their dues on December 6 and that the union cashier,
Brown, an employee who was empowered to receive and customarily did receive
dues, refused the dues payments pursuant to instructions from her employer. That
this refusal was coupled with a requirement for an interview with Salter is of no
avail to Respondent Union, particularly so as this was a novel procedure which
never had been and was not a part of the dues-collecting procedure, according to
Brown who contradicted Salter in this respect. And, as found, the remainder of
the group was not required to go through the routine of making a futile offer.
Accordingly, at this juncture it is found that the 60 complainants fulfilled their
obligation under the Act with respect to tendering their dues. And, as found, this
was done prior to their discharge by Respondent Company at the request of
Respondent Union. See N. L. R. B. v. Aluminum Workers, supra.
In addition, the General Counsel has contended that Respondent Union was
motivated in requesting the discharge of the 60 employees not by their dues de-
linquencies or failure to pay initiation fees, but for another reason, namely, their
support of the decertification petition filed with the Board on December 2 by
Simpson. Needless to say, this petition was a challenge to the status of Teamsters.
I find that a preponderance of the evidence supports the contentions of the General
Counsel in this respect for the following reasons:
(1) This request for discharge involved almost the entire complement of per-
sonnel in Respondent Company's two plants and resulted in making a complete
shambles of production schedules. This was the only time Teamsters had requested
a mass discharge of Broderick personnel. According to President Salter, there had
been prior individual cases where dismissal of employees was requested for dues
delinquency, but nothing of this magnitude.
(2) The foregoing is highlighted by the fact that not only is there evidence
of a lenient policy on dues collections prior to December 2, with no mass crack-
downs, but even thereafter, in the early months of 1956, dues delinquency was
tolerated and not met with similar mass crackdowns or rigid enforcement. In
short, this was a marked departure from custom.
(3) Salter admitted that he had known since sometime in August that Mine
Workers was interested in achieving recognition of the Plant 2 employees.
(4) President Salter stressed in his testimony that he had received complaints from
his business agent about the failure of dues to be paid by Broderick employees. He
allegedly investigated and discovered some 16 to 18 people who were 2 or 3 months
behind in their dues from which he concluded that this was a concerted effort to
refrain from paying dues. An inspection of the dues records of the 60 complainants,
discloses approximately 20 employees in this category which of course tends to
corroborate Salter's testimony. -
On the other hand, the same list discloses approximately double that number,
that is approximately 40 employees whose dues became delinquent only after De-
cember 1. It must be remembered that dues were payable on or before the first
of the current month, that is, December dues became delinquent only after the
close of business on December 1. The inclusion of this far larger group, involving
the majority of plant personnel indeed smacks of action beyond the realm of the
ordinary and for a reason other than dues delinquency.
This is emphasized by the fact that one of those included in the December 5
letter, George Petzoldt, had entered the employ of Broderick on November 7 and
had not completed the 31-day period afforded him under the contract to acquire
membership in Respondent Union. Moreover, it is noteworthy that the constitu-
tion of Respondent Union while providing for the loss of "good standing" for
not paying dues on the first of the current month, also provides that the member
shall be automatically suspended only after he is 3 months in arrears. While locals
are permitted to provide for suspension for lesser periods of time there is no
evidence that Local 13 ever took such a step.
BRODERICK WOOD PRODUCTS COMPANY 57
(5) I have heretofore set forth the details of the conversation between the three-
man committee and President Salter on December 6. The evidence discloses that
after dues payments were refused by the cashier pursuant to Salter's instructions,
Salter interviewed the committee and made the enigmatic reference to not refusing
but not accepting dues. I find that Salter coupled this reference to dues with a
proposal that the pending decertification petition be withdrawn. Significantly, after
mentioning the decertification petition to Trujillo and Lewis, he suggested that
Simpson be brought in because of his familiarity with the "other business," a reference,
I find, to the petition which had been received by Salter no later than December
5 and bore Simpson's name as petitioner. This is a far cry from the expressed
desire to bring dues collections up to date and, at the very least, constitutes evidence
of mixed motives, 1 lawful and 1 unlawful, in submitting the demand for the
discharge of the 60 men.
(6) That the dues element was not of any great significance , despite Salter's claim
that it was the controlling and in fact sole basis for his action, is shown by the
fact that several employees were given work orders, required by Broderick before
returning them to work, without paying their dues. This was done based upon
their mere promise to pay their delinquent dues at a later date.
(7) None of the employees received a referral slip or work order at the time
he paid his dues until be was asked to sign and did sign a new slip authorizing
Teamsters to represent them, although it appears that some few employees may
not have signed for one reason or another. This again is inconsistent with the
concept of dues collections and demonstrates rather an interest in procuring a
showing of support for the decertification proceeding.
(8) The decertification petition developed initially well before December 2.
Simpson testified, and the documents bearing numerous signatures support him,
that the signatures were obtained in Plants 1 and 2 during a period of 2 weeks prior
to the filing of the documents on December 2. And no action was taken by Salter
toward enforcing dues collections until November 29 or 30 when he instructed
Brown to compile a list of dues delinquents. In this respect, it is noteworthy that
the December 2 letter was typed on December 1 or 2 although some 40 on the
list did not become delinquent until the close of business on December 1. All this
smacks not of dues collections but of inordinate haste for another reason. The
inference is warranted that one reason was to crush interest in the petition.
(9) Noteworthy here, too, is the fact that none of the delinquents were given
any warning that their dues delinquencies were jeopardizing their employment.
Nor is there any evidence that this topic was raised at union meetings or taken
up with the members on any other occasion. This, of course, is understandable
in the case of some 40 of the 60 because they were not delinquent until after
December 1, and again demonstrates the inordinate haste noted above.
(10) Salter testified that his interest in dues delinquencies was prodded by
Business Agent Bagnoli who complained to him of difficulty in collecting dues.
However, according to Simpson's uncontroverted testimony, a day or two before
December 2 Bagnoli asked him what the men at Plant 2 were dissatisfied with,
asked what was going on, and claimed that Employee Bickford was the man behind
it. The conversation was not any more specific, but Bagnoli significantly said nothing
about dues delinquencies to Simpson on this occasion.
(11) As set forth above, in their interviews by the Salters on Thursday, December
8, employees Mortensen and Bickford were issued clearance slips only after being
questioned about their signatures to the petition and concerning the leader of the
petition movement.
I find, in view of the foregoing, on this posture of the case, that the evidence
preponderates in favor of a finding that Respondent Union declined proffers of dues
and sought the discharge of the 60 complainants for reasons other than nonpayment
of dues or initiation fees.
As for the case against Respondent Company, assuming the legality of the union-
security clause, there is no doubt that Respondent Company was placed in a difficult
position . It strove to resist an attempt by Respondent Union in one large bite to
get rid of almost its entire complement of personnel and its representatives strongly
protested this action to President Salter. While the evidence is not as strong as
that implicating Respondent Union, it does preponderate in favor of the General
Counsel.
(1) Respondent Company received the decertification petition no later than
the morning of December 5 and was on notice thereof at the time it took steps
to enforce the union-security language of the contract.
(2) Respondent Company had no notice since August that Mine Workers was
interested in achieving recognition as the representative of Plant 2 employees.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) On Tuesday , December 6 , a three-man committee notified Tait and Oakford
that the dues of employees were being refused by Salter. It is true, as Oakford
testified , that he contacted Salter and was advised that dues were not being refused.
(4) On Tuesday afternoon , the entire group affected by the union demands
visited Tait's office and informed him again that their dues were being refused by
Respondent Union. Here, again , Oakford telephoned Salter and received the same
reply that dues were not being refused. As Oakford put it herein, he was "betwixt
and between" as a result of the conflicting versions he received from the men and
Respondent Union.
It is clear, and I find, that Respondent Company acted herein pursuant to its
contractual commitments , supplemented by the threat of Salter that Respondent
Company would find itself in difficulty if it did not comply with the demands.12
However, economic pressure cannot serve as an excuse to justify action proscribed by
the Act. N. L. R. B. v. Coal Creek Coal Co., 204 F. 2d 579 (C. A. 10); News
Printing Company, Inc. v. N. L. R. B., 231 F. 2d 767 (C. A., D. C.); N. L. R. B.
v. McCatron, 216 F. 2d 212 (C. A. 9), cert. denied 348 U. S. 943; McQuay-Norris
Manufacturing Co. v. N. L. R. B., 116 F. 2d 748 (C. A. 7), cert. denied 313 U. S.
565; and N. L. R. B. v. Gluek Brewing Co., 144 F. 2d 847 (C. A. 8).
By Tuesday afternoon , with knowledge that a wholesale refusal of dues by
Respondent Union was taking place, with knowledge of the pending decertification
petition , and with long -standing knowledge of Mine Workers' interest in Plant 2
representation , it may be justly concluded that Respondent Company was on con-
structive notice that something was strongly amiss in this purported dues collection
effort by Respondent Union. Here too, as in the case against Respondent Union,
Respondent Company must be assessed with knowledge that it was being called upon
to discharge Petzoldt, an employee with less than 30 days' tenure. Surely, by that
time, Respondent Company was no longer justified in assuming that all was well.
and that it could safely proceed to carry out the terminations or suspensions pursuant
to the union demands . At that point, it was reasonably on notice that something
was seriously wrong with the dues-collection procedure , that either Salter or all its
employees were misrepresenting , and that further inquiry or investigation was
definitely in order for the purpose of ascertaining the credibility of the respective
versions and the possibility if not probability that another reason lurked behind
the demand for the discharges.
Respondents contend that in any event the instant case should be dismissed be-
cause Mine Workers, a noncomplying labor organization , was allegedly involved in
the activity in support of a decertification petition . There is some evidence that a
representative of that organization counseled Simpson and the employees in Plant 2
in their efforts to rid themselves of Teamster representation , presumably with the
ultimate objective of achieving status as their representative.
I deem it unnecessary to treat extensively with the cases on "fronting ." The pres-
ent case might be termed a close one were the present issue one of proceeding with
the election itself. Some Board cases, involving facts not unlike those present herein,
have held that mere assistance by a noncomplying labor organization does not con-
stitute fronting . See C. K. Williams & Co., 116 NLRB 187; Allied Chemical
and Die Corp., 115 NLRB 1134; Seaporcel Metals, Inc., 115 NLRB 960;
Anaconda Company, 114 NLRB 530; Consolidated Rendering Co., 91 NLRB
1257 ; and John Dritz & Sons , 88 NLRB 1521. In other cases not too dissimilar the
Board has held that the evidence of fronting was stronger and has dismissed the
decertification petition . See World Publishing Company, 109 NLRB 355; Bernson
Silk Mills, Inc., 106 NLRB 826; Hammermill Paper Company, Inc., 105 NLRB 194;
Timm Industries, 104 NLRB 359; and Knife River Coal Mining Company, 91 NLRB
176.
Actually the issue here is a different one than the one urged by Respondents. The
issue is not whether the Board would entertain a decertification petition under the
facts presented herein, but whether concerted activities in support of a noncomplying
union are unlawful under the Act. And the Board has already held, contrary to
the position of Respondents , that such activities are protected concerted activities.
In Brookville Glove Company, 114 NLRB 213, enfd . in N. L. R. B. v. Leach,
234 F. 2d 400 (C. A. 3), this specific point was passed on by the court which pointed
out that the legality of a strike for recognition by a noncomplying union had been
passed upon and approved by the Supreme Court in United Mine Workers of
America v . Arkansas Oak Flooring Company, 351 U. S. 62.
The Supreme Court in the last-cited case held that a consideration of the filing
provisions of Section 9 (f), (g), and (h) of the Act demonstrates that noncomnli-
12 Oakford so testified . Salter did not recall the statement.
BRODERICK WOOD PRODUCTS COMPANY 59
ance by a labor organization therewith shall entail no consequences other than those
listed, namely, lack of access to the Board's representation procedures. It held that
Section 7 of the Act still guaranteed employees the right to engage in activities in
support of a noncomplying union. The Court said that the subsections of Section 9
of the Act did not require "any initial filing to be made. Each merely describes
what is required to be filed in the event that a labor organization elects to seek
the advantages offered. .. ." The Court further said that Section 7 of the Act
"makes no reference to any need that the employees' chosen representative must
have complied with" Section 9 of the Act, and that subsections (f), (g), and (h) of
Section 9 "merely describe advantages that may be gained by compliance with
their conditions. The very specificity of the advantages to be gained and the express
provision for the loss of these advantages imply that no consequences other than
those listed shall result from noncompliance." The.Court went on to point out that
Section 7 guaranteed employees the right to bargain through representatives of their
own choosing, that it left open the manner of choosing such representatives when
certification did not apply, and that a majority union, although not entitled to
resort to the Labor Board because of its noncompliance, nevertheless could take other
lawful action such as strike action and achieve lawful -recognition as bargaining
representative.
Moreover it is by now well established that the noncompliance of a labor organi-
zation is no defense to charges filed by a member of that organization relating to his
own discharge for activities in support of the noncomplying labor organization. See
N. L. R. B. v. Augusta Chemical Co., 187 F. 2d 63 (C. A. 5); N. L. R. B. v. Frederica
Clausen, d/b/a Luzerne Hide & Tallow, 188 F. 2d 439 (C. A. 3), cert. denied 342
U. S. 868; and N. L. R. B. v. Globe Wireless, Ltd., 193 F. 2d 748 (C. A. 9). I find
that the activity of the employees of Respondent Company in support of the decerti-
fication petition was protected under Section 7 of the Act.
As the Supreme Court has stated, "This legislative history clearly indicates that
Congress intended to prevent utilization of union security agreements for any
purpose other than to compel payment of union dues and fees. . . . No other dis-
crimination aimed at encouraging employees-to join, retain, or stay in good standing
in a union is condoned." Radio Officers Union of the Commercial Telegraphers
Union, A. F. L., v. N. L. R. B., 347 U. S. 17. See also N. L. R. B. v. Intl. Assn. of
Machinists Local 504, 203 F. 2d 173 (C. A. 9); N. L. R. B. v. Local 169, Intl.
Brotherhood of Teamsters, etc., 228 F. 2d 425 (C. A. 3); N. L. R. B. v. Die and
Tool Makers Lodge 113, 231 F. 2d 298 (C. A. 7); N. L. R. B. v. Biscuit and Cracker
Workers Local 405, 222 F. 2d 573 (C. A. 2); Local 1139, Electrical Workers (Per-
fection Manufacturing Corporation), 114 NLRB 1300; Brunswick-Balke-Cal-
lender Co., 115 NLRB 518; and Special Machine and Engineering Company,
109 NLRB 838, enfd. 222 F. 2d 429 (C. A. 6). Cf. Krambo Food Stores, Inc.,
114 NLRB 241, and Victor Metal Products Corp., 106 NLRB 1361.
I further find, on this posture of the case, that Respondent Union has caused
Respondent Company to discriminate with respect to the hire and tenure of the 60
complainants contained herein for reasons other than nonpayment of dues or ini-
tiation fees and that they have thereby engaged in unfair labor practices, Respondent
Company within the meaning of Section 8 (a) (1), (2), and (3), and Respondent
Union within the meaning of Section 8 (b) (1) (A) and (2) of the Act.13
C. Checkoff of initiation fees
The complaint specifically attacks the checkoff of $750 in initiation fees from 25
employees at Plant 2 and the remittance of 'same to Respondent Union in Sep-
tember 1955 as unlawful and violative of Section 8 (a) (1), (2), and (3) of the
Act. As I read the complaint, this conduct is not specifically alleged as an unfair
labor practice against Respondent Union, although it is clear, as the General Counsel
urges in his brief, that as part of the remedy, restitution may be ordered by both
11 It is obvious that the union demands for discharges of Broderick employees were
made and entertained by Broderick less than 30 days after the signing of the contract on
November 11, 1955. However, the General Counsel has specifically proceeded against
Respondents on several other theories and I find that this aspect of the case was not
litigated. It becomes unnecessary therefore to determine (1) whether the contract was
actually entered into earlier that year or (2) whether there was no hiatus between the
November 1955 and the 1947 contracts with the result that the Board would not entertain
the claim that less than 30 days had been given employees to attain union membership.
Hence, no finding of unfair labor practices is made based upon Broderick employees not
receiving 30 days after November 11, 1955 to achieve good standing in Respondent Union,
as ostensibly required by Section 8 (a) (3) of the Act.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents, not only of initiation fees, but also of all dues paid by employees of
Respondent Company since June 9, 1955.
As the complaint attacks the unlawful union-security contract between Re-
spondents, I find that this aspect of the case has been put in issue against both Re-
spondents and that it was litigated. And, in any event, this topic is relevant under
the remedial section of this report. See J. S. Brown-E. F. Olds Plumbing & Heating
Corporation, 115 NLRB 594, and Hibbard Dowel Co., 113 NLRB 28.
As found, 25 cards were circulated by representatives of Respondent Union and
were signed by employees of Plant 2 between August 17 and September 6, 1955, with
the majority signed on August 19. These cards authorized Broderick to deduct
$30 in initiation fees and to remit same to Local 13. The fees of 21 employees
were deducted by Respondent Company and remitted on September 2 and the fees
of 4 more were remitted on September 7. This was done, of course, prior to the
signing of the November 11, 1955, contract, but at a time when the parties were
allegedly operating under the contract orally agreed to in the prior March. It is
immaterial whether the 1947 contract, as amended, was then in effect or the later
agreement, for both contain unlawful union-security provisions, the former con-
taining both the 10-day and the preferential hiring clause, and the latter only the
preferential hiring clause.14
It is true that in some decisions the Board has not ordered the reimbursement
of dues on the theory that the employer did not coerce dues payments by means
of an involuntary checkoff. See, e. g., Milco Undergarment Co., Inc., 106 NLRB
767 and Standard Transformer Company, 97 NLRB 669. See also N. L. R. B. v.
Shedd-Brown Mfg. Co., 213 F. 2d 163 (C. A. 7) and N. L. R. B. v. Braswell Motor
Freight Lines, 213 F. 2d 208 (C. A. 5). But it is significant that in the last-cited
decision, the court expressly distinguished that case from an earlier decision of the
same Circuit where it enforced a Board order requiring reimbursement of union
dues. N. L. R. B. v. Parker Bros. & Co., 209 F. 2d 278 (C. A. 5). The Court
stressed the fact that in the Parker case payment of the dues had been coerced
under a closed-shop contract. Obviously, for the purpose of this discussion an
illegal union-security contract is on the same plane as a closed-shop contract. See
also N. L. R. B. v. Local 404 Intl. Brotherhood of Teamsters, 205 F. 2d 99 (C. A. 1);
O. W. Burke Company, 115 NLRB 1123; J. S. Brown-E. F. Olds Plumbing &
Heating Corporation, 115 NLRB 594; and Hibbard Dowel Co., 113 NLRB 28.
Although the compulsory checkoff had been abandoned at the time material
herein and the employees had authorized these checkoffs, this is of no avail to
Respondents because, insofar as the employees are concerned, both contracts estab-
lished the requirement for employees of membership in Respondent Union in order
to retain their jobs. J. S. Brown-E. F. Olds Plumbing & Heating Corporation,
supra. The coercive element is obviously not the checkoff of dues but, more
basically, the union-shop clause which requires union membership, and, of course,
the payment of initiation fees and dues under penalty of discharge. This element
of coercion is, of course, endemic to any union-security contract and the parties
signatory thereto run the risk that the contract is an unlawful one. As indicated
above, a union-security clause is a narrow exception to the broad ban against dis-
crimination which is the policy of the Act and it must, therefore, be narrowly
construed. I find that by checking off initiation fees from employees covered by
an unlawful union-security contract which served to coerce such payments on
penalty of loss of employment, Respondent Company has engaged in conduct
violative of Section 8 (a) (1), (2), and (3) of the Act.
D. The discharge of Leroy Gross
Gross was hired on December 8, 1955; was duly requested to join Respondent
Union consistent with the union-shop clause in the contract; refused to tender his
initiation fees and dues; and his discharge was then requested by Respondent Union.
He was discharged by Broderick on January 31 because of his failure to comply
with the union-security clause. The General Counsel concedes that Gross did not
14 While the remittances on September 2 and 7 at first impression appear to have given
the respective signers less than 30 days to join Local 13, on the other hand, relying on the
accretion theory involving the bargaining unit treated hereinabove, the 30 days started
running approximately August 1 when the operation of Plant 2 commenced. This would
appear to have afforded the employees involved the required 30-day statutory period.
In any event, no contention to this effect has been made by the General Counsel. Cf.
Bailey and Junedale Heat Markets Company, 114 NLRB 66.
BRODERICK WOOD PRODUCTS COMPANY 61
.zomply with the union-security provisions of the contract, and his case turns solely
on whether or not there was a valid union-shop clause in effect at the time of his
discharge.
I have heretofore found that the union-security clause contained in the No-
vember 11, 1955, contract under which Gross was discharged at the request of
Respondent Union was an unlawful one. It follows therefore that his discharge,
not being bottomed upon a legal union-shop clause was unlawful for an unlawful
union-security clause renders unlawful any discharges carried out pursuant to its
provisions. Boss Overall Cleaners, 100 NLRB 1210. I find that Respondent
Company by discharging Leroy Gross has engaged in unfair labor practices vio-
lative of Section 8 (a) (1), (2), and (3) of the Act and that Respondent Union, by
causing the discharge, has engaged in unfair labor practices within the meaning
of Section 8 (b) (1) (A) and (2) of the Act.
E. Other terminations
The complaint further alleges that on or about December 8, 1955, pursuant to
the unlawful union-shop clause contained in the 1955 contract, Respondent Com-
pany terminated nine additional employees.
Initially, it is to be noted that the General Counsel is not proceeding herein
against Respondent Union with respect to this group of nine insofar as they are
named in paragraph 11 of the complaint. That paragraph of the complaint specifi-
cally charges only Respondent Company with unfair labor practices by discrimi=
nating on or about December 8 against nine named employees by application of the
above-described union-security agreement of November 1955. It does not charge
Respondent Union with the causation of this discrimination, although the operation
of this identical union-security clause is put in issue by other paragraphs of the
complaint and this would appear to be sufficient basis in the pleadings to support a
finding adverse to Respondent Union.
However, the General Counsel expressly disavowed any claim that the complaint
charged Respondent Union with the commission of unfair labor practices in the
case of Leopoldo Lopez, one of the nine named in paragraph 11. The names of 4
of the 9, Ernest Cordova, Raymond Garcia, Joe Martin, and Willie Ulibarri are also
set forth in other paragraphs of the complaint attributing unfair labor practices to
both Respondents. In fact, findings hereinabove made as to the 60 employees
named in the 2 letters of December 2 and 5 have included these 4 men in their scope
and were made with respect to both Respondents.
This presents the question as to whether the General Counsel is proceeding
against Respondent Union with respect to the remaining 4 employees other than
Lopez named in paragraph 11 of the complaint. In view of his statement of po-
sition that he was not proceeding against Respondent Union with respect to Lopez,
and in view of the fact that the remaining 4 names are grouped with that of Lopez
in paragraph 11 as having suffered discrimination at the hands only of Respondent
Company through application of the union-security clause, as reflected in para-
graphs 16 and 17 of the complaint, I can only conclude that the General Counsel is
proceeding with respect to the 5 not named elsewhere in the complaint only
against Respondent Company, and their cases have been considered on that basis
only.15
As stated, four employees, Ernest Cordova, Raymond Garcia, Joe Martin, and
Willie Ulibarri were included in the lists of employees whose names were read on
December 5 and 6. Their cases have already been treated as part of the group of
60 employees whose terminations have heretofore been found to be violative of the
Act. I therefore deem it unnecessary and cumulative to treat further with their
cases. There then remains for consideration the cases of the five remaining em-
ployees in this group. These five were not named in either the December 2 or
December 5 letters which were read on December 5 and 6, respectively.
Ernest Ulibarri was an employee of Plant 1 whose name did not appear on either
letter, although he was delinquent in his dues. As found above, the employees of
Respondent Company whose names had been read on December 5 proceeded to
18 It could be argued, based on different pleadings, that Respondent Union has engaged
in unfair labor practices in that the suspension or termination of the five men took
place as the result of Respondent Company carrying out its contractual commitments with
Respondent Union and that as a result Respondent Union thereby caused the terminations.
See N. L. R. B. v. Construction Specialties Company, 208 F. 2d 170 (C. A. 10) ; Boss
Overall Cleaners, supra.; and Consolidated Western Steel Corporation, 94 NLRB 1590.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Teamster hall on December 6 in an abortive effort to pay their dues. Ulibarri
decided that it would be wise for him to do likewise under the circumstances and
he accompanied the group to the union hall. He was present and learned of the
refusal of dues by the cashier on that occasion.
On Wednesday, December 7, Ulibarri went to Plant 1 accompanied by several
other employees including George Quintana, A. A. Velasquez, Ernest Cordova, Joe
Martin, and Raymond Garcia. The cases of Quintana and Velasquez are treated
below and the other 3, of course, are included in the group of 4 discussed above.
The men visited General Manager Tait and asked for their jobs. Tait indicated
that this was agreeable with him and sent them to see Superintendent Foster of Plant
1. Foster instructed them, as Ulibarri uncontrovertibly testified, to go to the union
hall and pay up their dues so that they could return to work on Thursday. The
record does not disclose whether Foster realized that some of those in this group
were not named in the two letters.
The group did visit the union hall on Wednesday but it is not entirely clear what
took place, except that they were informed by the Salters that they had to sign a
"slip" before they could return to work. Ulibarri visited the Union again on Friday,
December 9, and received a referral slip from the Salters. He returned to the plant
and saw Foster, who asked him for the slip. Ulibarri gave the slip to Foster, informed
him that he was ready to go to work, and was put back to work on Saturday,
December 10.
There is a conflict between the representatives of management as to how Re-
spondent Company treated the cases of this group. According to Oakford, then
assistant to the president of Respondent Company, he informed Superintendent
Foster that any man not on the lists submitted by the Union who went to the hall
with the large group on Tuesday morning, contrary to specific instructions to report
for work which had been given to the men, was to be discharged. But, according
to General Manager Tait this group of men was not discharged at any time. More-
over, there is no evidence that Foster carried out these instructions from Oakford.
It would seem that this actually amounted to a layoff from Wednesday noon pend-
ing payment of dues by the employees involved.
I find that on Wednesday at noon Superintendent Foster decided that Ulibarri
should comply with the union-security provisions of the contract and achieve good
standing with Respondent Union by payment of his dues. As a result, Ulibarri
suffered a loss of employment at that point due to the application of the union-
security provisions of the contract.16 This case then becomes one on a par with the
large group of 60 previously considered. I find that by subjecting Ulibarri to the
unlawful union-security agreement, Respondent Company thereby discriminated
with respect to his tenure of employment and engaged in unfair labor practices
within the meaning of Section 8 (a) (1), (2), and (3) of the Act.17
Abenecio Velasquez is another employee who was delinquent in his dues but whose
name did not appear on either list of names submitted by Respondent Union. He,
too, went to the union hall on Tuesday with a large group seeking to pay their dues
and apparently he performed no work that day. His recollection was poor and his
testimony vague as to what he did on succeeding days.. However, the testimony
of Ulibarri, set forth above, discloses that Velasquez was in the group that
saw Tait and Foster on Wednesday, December 7, and was instructed to pay their
union dues so that they could return to work. Velasquez testified that he did visit
the Union and paid his dues and it appears that he was put back to work on December
9. I find, for the same reasons applicable to the, case of Ernest Ulibarri, that
Respondent Company, by suspending Velasquez on December 7 has engaged in un-
fair labor practices within the meaning of Section 8 (a) (1), (2), and (3) of the Act.
Larry Vallejos was another employee whose name was not on either list but who
on Tuesday decided to accompany the group of employees to the union hall. He,
too, tried unsuccessfully to pay his dues to the union cashier. Vallejos testified that
he was in the group including Velasquez and Ernest Ulibarri that returned to the
plant to see Tait who referred them to Foster; according to Vallejos, this took place
on Tuesday rather than Wednesday, although it would seem that Wednesday was the
day. Foster told the group, according to Vallejos, that they were fired for not
showing up for work on Tuesday. However, it appears that Foster actually sus-
16 I find that Respondents are not assessable with his absence on Tuesday and on
Wednesday morning.
"This is not to say that an employer , signatory to a lawful union-security clause, can.
not make his employees comply therewith when motivated solely by a desire to carry out his
contractual commitments.
0
BRODERICK WOOD PRODUCTS COMPANY 63
pended rather than discharged them because he told them at the same time to
straighten out their dues with the Union and then to return to work.
Vallejos proceeded to pay his dues and signed the union authorization card
presented by the union representatives. He was then given a referral slip which
he presented to Foster who put him back to work on December 12. The record
indicates that Vallejos could have returned to work on December 9 or 10 but did
not do so because he chose to stay away for several days to handle some personal
business. His case therefore is on a par with those of Ulibarri and Velasquez,
treated above, and I find that he was suspended for several days pending payment
of his union dues. I further find that Respondent Company thereby engaged in
unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) of
the Act.
George Quintana 18 is another in this group. His name was not on either list
and his dues, according to union exhibits, were not delinquent. It is clear that
Quintana decided to join the-group that went to the union hall on Tuesday and
therefore did not report for work that day. As Ernest Ulibarri testified, I find that
Quintana was in the group that visited Superintendent Foster on Wednesday,
December 7, in an effort to return to work and that he was instructed to get his
dues straightened out with the Union and then report for work. Quintana was
reinstated on or about December 9. Although he was not required to pay any
dues, it follows, nevertheless, that Quintana was not permitted to return to work
on Wednesday; was subjected to the requirement for union clearance; and that he
did obtain a referral slip in the same manner as the others did. Accordingly, he,
too, was subjected to a discriminatory layoff for several days as the result of the
application of the unlawful union shop and it is found that Respondent Company
thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1),
(2), and (3) of the Act.
Leopoldo Lopez is the last of this group and his case differs from the others in
that his name was erroneously read Monday, December 5, as a dues delinquent,
whereas he was actually current in his dues and in good standing. Lopez was sent
to the Teamsters hall on Monday afternoon, December 5, to clear up the situation.
According to Tait, management assigned another employee, plant committeeman
Velasquez, to accompany Lopez because of Lopez' lack of familiarity with English.
Lopez did visit the union hall, ascertained from the cashier that he was in good
standing, and returned to the plant. He resumed his work and finished work that
day, leaving at the normal quitting hour of 4:30 p. m.19 Lopez did not report
for work on Tuesday, testifying that he acted thusly because some of the men
allegedly informed him that the Union had so decreed. A report was brought back
to management by Lopez' companion of the previous day, Velasquez, that Lopez
was going out in sympathy with the other men.
According to Tait, Lopez did not appear again at the plant for work until some
weeks later at which time his job had been filled. The testimony of Lopez, however,
is to the effect that he went to the plant on Wednesday and Thursday to see Superin-
tendent Foster. However, although his testimony is not clear, it is completely silent
as to any instruction or requirement from Foster or any other representative of
management that Lopez achieve another clearance from Respondent Union. True,
he was sent to the Union on Monday to clarify his status, but he ascertained his
good standing and returned to work. Lopez did not report for work on Tuesday
and testified that when he appeared on Wednesday Foster told him to return to work
on Thursday, but that on Thursday Foster told him he was discharged.
The foregoing testimony does not shed too much light on the matter and the
record as a result does not warrant a finding that Lopez' termination was brought
about through an application of the union-security clause. It is unfortunate 'that
this situation undoubtedly results, in part at least, from Lopez' language difficulies,
but under the circumstances I am constrained to find that the evidence does not
support a finding of discrimination in the case of Lopez. The fact is that he returned
to work on Monday, thereafter absented himself, and there is no evidence that his
loss of employment was caused by an application by Respondent Company of the
union-security clause. It is therefore recommended that the case of Lopez be
dismissed.
18 Quintana was a witness whose command of English was limited and who presented
testimony of a largely unintelligible and contradictory nature. It may be noted that many
of the employees involved were similarly handicapped with respect to the use of English.
19 The testimony of Lopez is marked by some confusion due to his poor command of
English, and an interpreter was used for a portion thereof.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , occurring in connec-
tion with the operations of Respondent Company 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 thereof.
V. THE REMEDY
0
Having found that Respondents have engaged in unfair labor practices , I shall
recommend that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent Company has violated Section 8 (a) (1), (2),
and (3 ), and Respondent Union Section 8 (b) (1) (A ) and (2 ) of the Act, by
executing , maintaining, and enforcing agreements containing unlawful union-
security provisions . It will therefore be recommended that Respondent Company
withdraw recognition from Respondent Union as the representative of its employees
in Plants 1 and 2, and that Respondents cease giving effect to their agreement of
November 11, 1955, or to any modification , extension , supplement or renewal
thereof, or any substitute therefor , unless and until Respondent Union , Local 13,
shall have been duly certified by the Board.20
As urged by the General Counsel , the remedy of reimbursement of checked off
initiation fees is deemed to.be appropriate and necessary to expunge the illegal effect
of Respondents ' unfair labor practices . By their unlawful union -security agree-
ment, Respondents have unlawfully required employees to maintain membership in
Respondent Union as the price of their employment , thereby inevitably coercing the
payment of initiation fees and dues. I find that it will effectuate the policies of the
Act, therefore , to order Respondents, jointly and severally, to refund to employees
the initiation fees checked off pursuant to the checkoff authorizations in favor of
Respondent Union , and also, although the dues payments are not specifically
attacked in the complaint , all monthly dues paid by employees of Plants I and 2
under both unlawful agreements subsequent to June 9, 1955 . See J . S. Brown-
E. F. Olds Plumbing & Heating Corporation , supra and Hibbard Dowel Co., supra.
Although these funds are presumably in the hands of the Union , Board policy in
analogous union -security cases appears to dictate an order against both Respondents.
See, e. g., Union Starch & Refining Co . v. N. L. R . B., 186 F. 2d 1008 (C. A. 7).
It has been found that Respondent Union caused Respondent Company to dis-
criminate on December 5 and 6, 1955, against the 60 employees named in Appendix
A attached hereto, and , on January 31, 1956, against Leroy D. Gross. It will be
recommended that Respondent Company offer reinstatement to Gross and to those
of the 60 who have not since been returned to work,21 and it will further be recom-
mended that both Respondents jointly and severally make the aforementioned group
whole for any loss of pay suffered by reason of the discrimination against them.
It will likewise be recommended that in the case of Quintana , Ernest Ulibarri, Val-
lejos, and A. A. Velasquez , all of whom have since been reinstated, Respondent
Company make them whole for any loss of pay suffered by reason of the discrimina-
tion against them . Said loss of pay shall be computed in the manner established
by the Board in F. W . Woolworth Co., 90 NLRB 289. See N . L. R. B. v. Seven-Up
Bottling Company of Miami, Inc., 344 U. S. 344.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Company, Broderick Wood Products Company, is engaged in
commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Respondent Union, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local No. 13, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. By executing, maintaining and enforcing contracts containing unlawful union-
security provisions and by checking off union initiation fees thereunder, thereby con-
tributing support to Respondent Union, Respondent Company has engaged in unfair
labor practices within the meaning of Section 8 (a) (2) of the Act.
2" This is not intended to require Respondent Company to vary. or abandon the sub-
stantive features of its relations with its employees, established in the performance of
the agreement, or to prejudice the assertion by employees of any rights they may have
thereunder.
21 It appears that this number is approximately 10.
BRODERICK WOOD PRODUCTS COMPANY 65
4. By discriminating with respect to the hire and tenure of employees, thereby
encouraging membership in Respondent Union, Respondent Company has engaged
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
5. 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 unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. By executing , maintaining , and enforcing contracts containing unlawful union-
security provisions and by causing Respondent Company to discriminate with respect
to the hire and tenure of employees in violation of Section 8 (a) (3) of the Act,
Respondent Union has engaged in unfair labor practices within the meaning of
Section 8 (b) (2) of the Act.
7. By restraining and coercing employees in the exercise of the rights guaranteed
by Section 7 of the Act, Respondent Union has engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
9. Respondent Company has not engaged in unfair labor practices in the case
of Leopoldo Lopez.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that:
WE WILL NOT give effect to, perform, or in any way enforce our agreement
of November 11, 1955, with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local No. 13, AFL-CIO, or enter into
any extension, renewal, modification or supplement thereto, or any other con-
tract covering Plants 1 and 2 with said Local 13, unless and until that labor
organization shall have been duly certified by the National Labor Relations
Board as the representative of our employees.
WE WILL withdraw and withhold all recognition from International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No.
13, AFL-CIO, or any successor thereto, as the collective-bargaining representative
of the employees of Plants I and 2 unless and until said Local 13 shall have
been duly certified by the National Labor Relations Board as the representative
of such employees.
WE WILL NOT encourage membership in said Local 13, or in any other labor
organization, by discharging employees or by discriminating in any other
manner against our employees in regard to hire or tenure of employment, except
to the extent permitted under Section 8 (a) (3) of the Act.
WE WILL make whole the employees named below for any loss of pay suf-
fered as a result of the discrimination against them and we will offer to those
of them not yet reinstated immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed.
Acosta, Albert Garcia, Patrick
Acosta, Nazario J. Garcia, Raymond
Bachicha, Raymond R. Garduno, Henry D.
Barraza, Leon Gonzales, Jess
Bickford, Elmer Guterriz, Joe
Brooks, James H. Guyton, Roy
Clark, Lenward E. Hara, Frank
Cordova, Ernest Hastings , Carlisle H.
Cordova, Malaquias Holmes, Charles
Cordova, Porfirio Houston, L. C.
Dawson, Thurmon Houston, Leo D.
Duran, John B. Houston, Willie T.
Encinias, Petro Hurtado, Abram
Estrada, Aurelio G. Iverson, Toby
Falls, Bennie W. Jiron, Lee
Garcia, Jose C. Lewis, Frank M.
450553-58-vol. 118-6
66 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lopez, Alphonso L. Pillar, Ulysses I.
Lucero, Arsenio Poole, Jim
Marquez, Jose R. Romero, Louis J.
Martin, Joe Romero, Rudolph
Martinez, Alvin Sanchez, Jose A.
Martinez, Joe Simpson, Casey
Martinez, Joe L. Trujillo, Joe C.
McMillon, George Trujillo, Joe R.
Milano, Samuel J. Trujillo, Max J.Morgan, Willie L. Trujillo, MikeMortensen, Orland E.
Olson, Irving E. Ulibarri, Willie
Padilla, Maurilio Valdez, Joe M.
Quintana, George Velasquez, John I.
Ulibarri, Ernest Young, Lloyd R.
Vallejos, Larry Velasquez, A. A.
Petzholdt, George Gross, Leroy D.
WE WILL reimburse our employees of Plants 1 and 2 for all initiation fees
and dues paid to International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Local No. 13, AFL-CIO, subsequent to
June 9, 1955.
• WE WILL NOT interfere with, restrain, or coerce our employees in the right to
engage in or refrain from engaging in any or all of the activities guaranteed
them by Section 7 of the National Labor Relations 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, executed in conformity with
Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or to refrain from becoming
or remaining, members of any labor organization, except to the extent that this
right may be affected by an agreement executed in conformity with Section 8 (a) (3)
of the Act.
BRODERICK WOOD PRODUCTS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL No. 13, AFL-CIO, AND
To ALL EMPLOYEES OF BRODERICK WOOD PRODUCTS COMPANY
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 Rela-
tions Act, we hereby notify you that:
WE WILL NOT give effect to, perform, or in any way enforce our agreement
of November 11, 1955, with Broderick Wood Products Company, or enter into
any extension, renewal, modification, or supplement thereto, or any other contract
covering Plants 1 and 2, unless and until our labor organization shall have been
duly certified by the National Labor Relations Board as the representative of
said employees.
WE WILL NOT cause or attempt to cause Broderick Wood Products Company,
its officers, agents, successors, or assigns to discharge, suspend, lay off, or dis-
criminate in any other manner against its employees in regard to hire or tenure
of employment, except to the extent permitted under 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 against them.
Acosta, Albert Brooks, James H.
Acosta, Nazario J. Clark, Lenward E.
Bachicha, Raymond R. Cordova, Ernest
Barraza, Leon Cordova, Malaquias
Bickford, Elmer Cordova, Porfirio
UNITED GRINDING SERVICE, INC.
Dawson, Thurmon
Duran , John B.
Encinias, Petro
Estrada, Aurelio G.
Falls, Bennie W.
Garcia, Jose C.
Garcia, Patrick
Garcia, Raymond
Garduno, Henry D.
Gonzales, Jess
Guterriz, Joe
Guyton, Roy
Hara, Frank
Hastings, Carlisle H.
Holmes, Charles
Houston, L. C.
Houston, Leo D.
Houston, Willie T.
Hurtado, Abram
Iverson, Toby
Jiron, Lee
Lewis, Frank M.
Lopez, Alphonso L.
Lucero, Arsenio
Marquez, Jose R.
Martin, Joe
Martinez, Alvin
Martinez, Joe
Martinez, Joe L.
McMillon , George
Milano, Samuel J.
Morgan , Willie L.
Mortensen , Orland E.
Olson , Irving E.
Padilla, Maurilio
Petzholdt, George
Pillar, Ulysses I.
Poole, Jim
Romero, Louis J.
Romero , Rudolph
Sanchez, Jose A.
Simpson, Casey
Trujillo, Joe C.
Trujillo, Joe R.
Trujillo, Max J.
Trujillo, Mike
Ulibarri, Willie
Valdez, Joe M.
Velasquez, John I.
Young, Lloyd R.
Gross, Leroy D.
67
WE WILL reimburse the employees of Plants I and 2 for all initiation fees
and dues paid to our union subsequent to June 9, 1955.
WE WILL NOT restrain or coerce the employees of Broderick Wood Products
Company in the right to engage in or refrain from engaging in any or all of
the activities guaranteed them by Section 7 of the National Labor Relations
Act, except to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employment,
executed in conformity with Section 8 (a) (3) of the Act.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN & HELPERS
OF AMERICA , LocAL No. 13, AFL-CIO,
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.
United Grinding Service, Inc. and Lodge 12 of District 37, Interna-
tional Association of Machinists , AFL-CIO. Case No. 39-CA-
58g. June 7, 1957
DECISION AND ORDER
On November 20, 1956, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above -entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other alleged unfair
118 NLRB No. 13.