Carpenter & Skaer, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1951

93 N.L.R.B. 188 (N.L.R.B. 1951)

188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be closed by March 1951. The West Mifflin plant had, at the time
of the hearing, 660 employees of a contemplated 1,20( to 1,400 em-
ployees.5 This employee complement is a substantial and representa-
tive segment of the working force which will eventually be employed.
In these circumstances, and in accord with our usual practice, we shall
direct an immediate election.
[Text of Direction of Elections omitted from publication in this
volume.]
5 The powerhouse has its full complement of employees The Employer expects to hire
approximately 20 additional machinists whenever persons s ith requisite skills are avail-
able.
CARPENTER & SKAER, INC., and GENERAL CONTRACTING EMPLOYERS
ASSOCIATION and GEORGE MCDONALD
INTERNATIONAL HOD CARRIERS , BUILDING & Co [MoN, LABORERS UNION
OF AMERICA , LOCAL 210, AFL and GEORGE MCDoNALD
INTERNATIONAL HOD CARRIERS' , BUILDING & COMMON LABORERS' UNION
OF AMERICA , LOCAL 210 , AFL and ROBERT H. FRANCISCO
H. F. STI31M , INCORPORATED and GENERAL CONTRACTING EMPLOYERS
ASSOCIATION and HAROLD ODELL
INTERNATIONAL HOD CARRIERS', BUILDING & COMMON LABORERS' UNION
OF AMERICA , LOCAL 210 , AFL and HAROLD ODEI ,L. Cases Nos.
3-CA,86, 3-CB-a1, 3-CB-26, 3-CA -1.50, 3-CB-:36. February 19,
1951
Supplemental Decision and Order
On September 28, 1950, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
Union filed exceptions to the Intermediate Report and a supporting
brief.
The Board 1 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 Interme-
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to it threeanembei panel
[Chairman Herzog and Members Reynolds and Murdock 1
93 NLRB No. 22.
CARPENTER & SKAER, INC. .189
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
(1) The Respondents General Contracting Employers Association ;
Carpenter & Skaer, Inc.; H. F. Stimm, Incorporated; and Interna-
tional Hod Carriers', Building & Common Laborers' Union of Amer-
ica, Local 210, AFL, their officers, agents, successors, and assigns,
shall cease and desist from :
(a) Giving effect to the agreement of April 30, 1948, and any exten-
sion, renewal, or modification thereof, or supplement thereto, or to any
superseding agreement.
(b) Entering into, renewing, or enforcing any agreement which
requires employees to be members of, to join, or to maintain their
membership in said labor organization, unless such an agreement
has been authorized as provided by the National Labor Relations
Act, as amended.
(2) The Respondents General Contracting Employers Association;
Carpenter & Skaer, Inc.; and H. F. Stimm, Incorporated; their offi-
cers, agents, successors, and assigns, shall cease and desist from:
(a) Encouraging membership in International Hod Carriers',
Building & Common Laborers' Union of America, Local 210, AFL,
or in any other labor organization of their employees, by discharging
any of their employees or discriminating in any other manner in
regard to their hire or tenure of employment, or any terms or condi-
tions of employment.
(b) In any like or related manner interfering with, restraining,
or coercing their employees in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
(3) The Respondent International Hod Carriers', Building & Coin-
mon Laborers' Union of America, Local 210, AFL, its officers, agents,
successors, and assigns, shall cease and desist from :
(a) Causing or attempting to cause any employer to discriminate
in any manner against employees (including applicants for employ-
ment) in violation of Section 8 (a) (3) of the Act.
(b) Restraining or coercing employees of any employer in the
exercise of the rights guaranteed in Section 7 of the Act, except to
the extent that such right may be affected by an agreement requiring
190 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
(4) The Respondents Carpenter & Skaer, Inc., and International
Hod Carriers', Building & Common Laborers' Union of America,
Local 210, AFL, their successors and assigns, shall make George Mc-
Donald whole in the mamier provided in the section of the Interme-
diate Report entitled "The remedy."
(5) The Respondents H. F. Stimm, Incorporated, and International
Hod Carriers', Building & Common Laborers' Union of America,
Local 210, AFL, their successors and assigns, shall make Harold Odell
whole in the manner provided in the section of the Intermediate Report
entitled "The remedy."
(6) The Respondent International Hod Carriers', Building &, Com-
mon Laborers' Union of America, Local 210, AFL, its successors and
assigns, shall make Robert H. Francisco whole, in the manner pro-
vided in the section of the Intermediate Report entitled "The remedy."
(7) The Respondents General Contracting Employers Association;
Carpenter & Skaer, Inc. ; H. F. Stimm, Incorporated ; and Interna-
tional Hod Carriers', Building & Common Laborers' Union of Amer-
ica, Local 210, AFL, shall post immediately in conspicuous places, in
all locations where notices are customarily posted, the respective copies
of the notices attached hereto, and marked Appendix A for the Asso-
ciation, Appendix B for Carpenter, Appendix C for Stimm, and Ap-
pendix D for the Union.2 Copies of said notices, to be furnished by
the Regional Director for the Third Region, shall, after being signed
by a duly authorized officer or agent, be posted and maintained by each
of said Respondents for a period of sixty (60) consecutive days. Rea-
sonable steps shall be taken by the respective Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(8) Each of said Respondents shall notify the Regional Director
of the Third Region in writing within ten (10) days from the date of
this Order what steps have been taken to comply herewith.
Appendix A
NOTICE TO ALL MEMBERS OF GENERAL CONTRACTING EMPLOYERS
ASSOCIATION
Pursuant to a Supplemental Decision and Order of the National
Labor Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify you that:
I In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be inserted before the words "A Supplemental Decision and Order," the
words "A Decree of the United States Court of Appeals Enforcing "
CARPENTER & SKAER, INC. 191
WE WILL CEASE performing or giving effect to our contract dated
April 30, 1948, with INTERNATIONAL HOD CARRIERS', BUILDING &
COMMON LABORERS' UNION OF AMERICA, LOCAL 210, AFL.
WE WILL NOT enter into, renew, or enforce any agreement With
INTERNATIONAL HOD CARRIERS', BUILDING & COMMON LABORERS'
UNION OF AMERICA, LOCAL 210, AFL, which requires employees
of our members to be members of, to join, or maintain their mem-
bership in such labor organization, unless and until such agree-
ment has been authorized as provided in the National Labor Rela-
tions Act, as amended.
GENERAL CONTRACTING EMPLOYERS ASSOCIATION.
By •---------------------------------------------
Dated --------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE To ALL EMPLOYEES
Pursuant to a Supplemental Decision and Order of the National
Labor Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify you that :
WE WILL CEASE performing or giving effect to our contract dated
April 30, 1948, with INTERNATIONAL HOD CARRIERS' BUILDING ,
COMMON LABORERS' UNION OF AMERICA, LOCAL 210, AFL.
WE WILL NOT enter into, renew, or enforce any agreement with
said labor organization which requires our employees to be mem-
bers of, to join, or to maintain membership in such labor organi-
zation, unless and until such agreement has been authorized as
provided in the National Labor Relations Act, as amended.
WE WILL NOT encourage membership in said labor organization,
or in any other labor organization, by discriminatorily discharg-
ing any of our employees or discriminating in any other manner
in regard to their hire or tenure of employment or any terms or
conditions of employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guaran-
teed them by Section 7 of the Act, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make George McDonald whole for any loss of pay
suffered as a result of the discrimination against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing of the above-named
union or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section 8
(a) (3) of the Act.
CARPENTER & SKAER, INC.,
Employer.
By ------------------------------
(Representative ) ( Title)
Dated --------------------
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 C
NOTICE TO ALL EMPLOYEES
Pursuant to a Supplemental Decision and Order of the National
Labor Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify you
that :
WE WILL CEASE performing or giving effect to our contract
dated April 30, 1948, With INTERNATIONAL HOD CARRIERS' BUILD-
ING ce, COMMON LABORERS' UNION OF AMERICA, LOCAL 210, AFL.
WE WILL NOT enter into, renew, or enforce any agreement with
said labor organization which requires our employees to be mem-
bers of, to join, or to maintain membership in such labor
organization, unless and until such agreement has been author-
ized as provided in the National Labor Relations Act, as amended.
WE WILL NOT encourage membership in said labor organization,
or in any other labor organization, by discriminatorily discharg-
ing any of our employees or discriminating in any other manner
in regard to their hire or tenure of employment or any terms or
conditions of employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed them by Section 7 of the Act, except to the extent that
such right maybe affected by an agreement requiring Inember-
ship in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL make Harold Odell whole for any loss of pay suffered
as a result of the discrimination against him.
CARPENTER & SKAER, INC. 193:
All our employees are free to become, to remain , or to refrain from
becoming or renmaining , members in good standing of the above-named
union or any other labor organization , except to the extent that this
right may be affected by an agreement in conformity with Section 8,
(a) (3) of the Act.
H. F. STIMM, INCORPORATED,
Employer.
By ---------------------------------
(Representative ) ( Title)
Dated --------------------
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 D
NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS AND MEMBERS OP
INTERNATIONAL HOI) CARRIERS' BUILDING & COMMON LABORERS' UNION
OF AMERICA, LOCAL 210, AFL.
Pursuant to a Supplemental Decision and Order of the National
Labor Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify you that :
WE WILL CEASE performing or giving effect to our contract
dated April 30, 1948, with GENERAL CONTRACTING EMPLOYERS
ASSOCIATION.
WE WILL NOT enter into, renew, or enforce any agreement with
GENERAL CONTRACTING EMPLOYERS ASSOCIATION which requires.
employees to be members of, to join, or to maintain membership
in our organization, unless and until such agreement has been
authorized as provided in the National Labor Relations Act, as
amended.
WE WILL NOT cause or attempt to cause any employer to dis-
charge or otherwise discriminate against employees in regard to
their hire or tenure of employment or any term or condition of
employment in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any manner restrain or coerce employees of
any employer in the exercise of the rights 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
as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
943732-51-14
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make George McDonald, Harold Odell, and Robert H.
Francisco whole for any loss of pay suffered because of the dis-
crimination against them.
INTERNATIONAL HOD CARRIERS', BUILDING aL' COMMON
LABORERS' UNION OF AMERICA, LOCAL 210, AFL.,
Union.
By-------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
Messrs David F. Doyle and Richard Lipsitz, for the General Counsel.
Mr. Edward D. Flaherty, of Buffalo, N. Y., 'for the Respondent, General Con-
tracting Employers Association , Carpenter & Skaer, Inc ., and H . F. Stimm,
Incorporated.
Mr. Anthony Manguso, of Buffalo, N. Y., for the Respondent Union.
STATEMENT OF THE CASE
Upon charges duly filed by George McDonald, Harold Odell, and Robert Fran-
cisco, individuals, the General Counsel of the National Labor Relations Board,'
on behalf of the Board by the Regional Director for the Third Region (Buffalo,
New York) on June 22, 1949, issued complaints against: (1) Carpenter & Skaer,
Inc., and General Contracting Employers Association in Case No. 3-CA-86; (2)
H. F. Stimm, Incorporated, in Case No. 3-CA-150; and (3) International Hod
Carriers', Building & Common Laborers' Union of America, Local 210, AFL, in
Cases Nos. 3-CB-21, 3-CB-36 and 3-CB-26; on the same day issued an order
consolidating cases ; and on July 7, 1949, issued an amended complaint against
H. F. Stimm, Incorporated and General Contracting Employers Association in
Case No. 3-CA-150; alleging in substance: (a) That the Respondent Employers
and Association were engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act ; (b) that the Respondent Union was engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) ; and
(c) that said unfair labor practices affected commerce within the meaning of
Section 2 (6) and (7) of the Act.
With respect to the unfair labor practices, the complaints, as amended,
alleged: (1) That the Respondent Employers, Association, and Union in April
1948 entered into and thereafter enforced an illegal contract requiring mem-
bership in the Respondent Union as a condition of employment; (2) that in
September 1948, employee George McDonald was discharged and for a stated
period denied reinstatement by the Respondent Carpenter; (3) that in March
1949, employee Harold Odell was discharged and for a stated period denied
reinstatement by the Respondent Stimm; (4) that the Respondent Union caused
the Respondent Employers above named to discharge McDonald and Odell, and
I The representatives of the General Counsel at the hearing are herein called General
Counsel, and the National Labor Relations Board , the Board.
CARPENTER & SKAER, INC. 195
caused Fred Seitz, Inc , also an employer member of the Respondent Associa-
tion,' similarly to discharge employee Robert H. Francisco in November 1948.
Answers were thereafter filed by the Respondents, in which they denied the
commission of the unfair labor practices alleged in the complaints.
Pursuant to notice, hearing was held at Buffalo, New York, on July 18, 19,
and 20, 1949, before the undersigned duly designated Trial Examiner. The
General Counsel and the Respondents were represented by counsel. All par-
ticipated in the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues. Ruling was reserved upon motions by the Respondents for dismissal
of the complaints. Briefs were thereafter received
On November 1, 1949, the Trial Examiner issued an Order granting the motions
to dismiss and dismissing the complaints in their entirety, citing Indianapolis
Cleaners & Launderers Club (85 NLRB 1198) as grounds for such dismissal
upon jurisdictional grounds. Thereafter General Counsel filed a request for
review of the Trial Examiner's order. On June 19, 1950, the Board issued an
Order Dismissing Certain Complaints 3 and Order Remanding Proceeding to
Trial Examiner, in which it determined to assert jurisdiction over the Respond-
ent Association and its member respondents, citing Indianapolis Cleaners and
Launderers Club, 87 NLRB 472, reversing 85 NLRB 1198. The order remanding
the cases provided for the preparation and issuance of an Intermediate Report,
setting forth findings of fact, conclusions of law, and recommendations with
respect to the unfair labor practices alleged in the complaints.
Upon the entire record, and from his observation of the witnesses, the Trial
Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT ASSOCIATION AND ITS MEMBERS
The Association, of Buffalo, New York, is an organization comprised of 42
general contractors and 80 subcontractors engaged in the building-construction
industry in Erie County, New York Since 1936, the Association, in behalf of
its employer-members, has negotiated and signed collective bargaining contracts
with the Respondent Union covering laborers, the classification of employees
involved in this proceeding During the year 1948, 90 per cent of all the indus-
trial and commercial construction in Erie County was performed by members
of the Association. The volume of such construction amounted to approximately
$20,000,000, of which amount approximately $2,000,000 represented purchases
of materials received from outside the State of New York. A substantial
number of construction jobs were performed by members of the Association for
firms engaged in interstate commerce, within the meaning of the Act.
Carpenter & Skaer, Inc ; H F. Stimm, Incorporated ; and Fred Seitz, Inc., are
employer members of the Association.
II THE LABOR ORGANIZATION INVOLVED
International Hod Carriers', Building & Common Laborers' Union of America,
Local 210, AFL, is a labor organization admitting to membership employees of
the Respondent Employers and of Fred Seitz, Inc.
2 No complaint was issued against this employer
3 Cases Nos. 3-CA-152, 3-CB-37, 3-CA-172, and 3-CB-45, originally consolidated with
the cases here involved.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. TILE UNFAIR LABOR PRACTICES
A. The setting and issues
On April 30, 1948, there was executed a collective bargaining agreement be-
tween the Respondent Union and the lespondent Association, as to the latter on
behalf of its employer members, which contained, among others, the following
provision :
3. The Employer shall have an optional right to hire men, either direct or
through the representative of the Union, provided such men are members of
the union. [Emphasis supplied.]
The agreement was to be effective "until May 1, 1949 and thereafter from year
to year unless it shall have been changed or amended . . ." At the hearing the
Association conceded that "the entire contract is in effect and has been from
May 1, 1948." Although it appears that at the time of the hearing in July 1949,
the parties were engaged in negotiating terms of a new agreement, there is no,
convincing evidence refuting the concession of the Respondent Association It
is found that at all times material herein the aforesaid agreement has been in
full force and effect.
Three separate discharges are involved : Of McDonald by the Respondent Car-
penter, of Odell by the Respondent Stimm, and of Francisco by Fred Seitz, Inc.,
all employers who were members of the Association The major issue is whether-
or not these discharges were made upon demand of the Respondent Union and_
pursuant to the provisions of the agreement
B. The discharge of George McDonald
When McDonald was hired by the Respondent Carpenter on September 3,.
1948, he was asked by Richard T Carpenter, treasurer of the company, if he was-
a member of the Union, and upon giving a negative reply was told to "get straight-
ened out with the union." McDonald went to the union headquarters in an
effort to join, but was told by a union officer, John Termini, that he could do
nothing for him McDonald then went to the Board's Regional Office, someone
there called Carpenter, and the following day the employee was put to work. A
few days later Michael Rossiter. president of the Union. came to the office of
the Respondent Carpenter and asked Townsend Carpenter, president, what he
was going to do about McDonald Carpenter replied that he had been diiected
by the Regional Office to "put him on " Itossiter made it clear that McDonald
must be discharged. On September 13, when work on the job became slack,
McDonald was laid off. The testimony of Townsend Carpenter establishes that
absent pressure from the Union, McDonald would have been transferred to
another job, and not discharged, on September 13
On October 7 McDonald was reinstated by the Respondent Carpenter. General
Counsel concedes that the employee was not refused reinstatement after that
date, and that any order for back pay should run only from September 13 to
October 7, 1948
The preponderance of evidence establishes that McDonald was discharged on
September 13 because of the pressure put upon the company by the Respondent
Union, that p: essure was applied by the Union because McDonald was not a
member, and that the Union retuned to permit McDonald to join The dis-
criminatory action was poisuant to and the result of the illegal provisions in the
above described contract.
CARPENTER & SKAER, INC.
C The discharge of Harold Odell
197
When Harold Odell was hired by the Respondent Stimm on March 23, 1949,
he was asked by Field Superintendent Kolkinan if he was a member of the
"Hodcarriers local." Odell replied that he was, and went to work. Later the
same morning he was approached by Angelo Abramo, a union steward, who asked
for his union "book " Odell displayed a card from another local. Abramo
called the union headquarters, returned to the employee and told him "they
wouldn't allow" him "to work " Odell went to Kolkman, who said he could do
nothing about it. He went to his foreman, William Clabeaux, who gave him
a similar answer and added that if he were allowed to work the Union "would
tie the job up." The employee proceeded to the union hall, saw John Termini,
previously identified as a union official, and tried either to transfer his member-
ship to Local 210 or to join it Termini refused both alternatives. Odell then
went to the Regional Office of the Board
Odell was offered reinstatement by the employer on March 30, worked for
a time, and quit voluntarily General Counsel claims only that Odell should
be made whole for the period from March 23 to March 30, the week during
which he was denied employment.
The preponderance of evidence establishes that Odell was refused membership
in the Respondent Union, that the Union demanded his discharge pursuant to
the illegal contract, and that pursuant to the contract and the union demand
the Respondent Stimm discriminatorily discharged him
D. The discharge of Robert H Francisco
Francisco was hired by Fred Seitz about October 1, 1948- On November 18
he was approached by the union steward, Joseph Puglisi, and asked if he belonged
to the Union Francisco replied in the negative A few minutes later Puglisi
returned and brought him to Seitz' office In the office Francisco was interviewed
by Ian Hudson,'son of Leslie Hudson, associated with Seitz on the construction
job Leslie Hudson came in during the discussion with Puglisi, was intormed
that Francisco was not a member of the Union, and according to his own testi-
mony promptly said: "Fire him and get him out of here " Francisco was fun ther
told, however, that he could come back if he could "get into the union."
Francisco went to the union hall, but was told by Termini that he -'couldn't
belong "
He was rehired by Seitz on December 21, 1948. On January 19, 1949, Seitz,
Francisco, and the Regional Director executed a settlement agreement in Case
No. 3-CA-104, by terms of which, among other things, the employer agreed to
make Francisco whole for "its proportionate share of the amount necessary."
The preponderance of evidence established that Francisco was denied member-
ship in the Union, and that the Respondent Union caused employer Seitz to
discharge him pursuant to the illegal contract.
E. Conclusions
The closed-shop provision of the contract existing between the Respondents
is proscribed by the Act, and is plainly illegal. By entering into it, by enforcing
it, and by discharging employees pursuant to its illegal provisions , as set out
above, the Respondents Association, Carpenter, and Stimm engaged in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
By entering into it, by enforcing it, and by causing employers to discriminate
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against employees in violation of Section 8 (a) (3) of the Act, as described
above, the Respondent Union engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and (2) of the Act.4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring in
connection with the operations of the Respondent Employers described in Sec-
tion I, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the contract of April 30, 1948, between the Respondents
contains illegal provisions, the Trial Examiner will recommend that the Re-
spondents cease and desist from giving effect to the entire contract,' and from
entering into, renewing, or enforcing any agreement which requires member-
ship in the Respondent Union as a condition of employment, unless such agree-
ment is authorized as provided by the Act'
Having found that the Respondents engaged in unfair labor practices the
Trial Examiner will recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found: (1) That from September 13 to October 7, 1948, the Re-
spondent Carpenter discriminated against George McDonald as to his,hire and
tenure of employment; (2) that from March 23 to March 30, 1949, the Re-
spondent Stimm likewise discriminated against Harold Odell; (3) that from
November 18 to December 21, 1948, Employer Seitz likewise discriminated
against Robert H. Francisco; (4) that such conduct by employers encourage
membership in the Respondent Union and interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by Section 7 of the Act;
and (5) that the Respondent Union engaged in unfair labor practices by caus-
ing the above-named employers thus to discriminate, thereby restraining em-
ployees in the exercise of rights guaranteed by the Act. Since it appears that
each of the three employees were reinstated to their respective positions, it
will not be recommended that reinstatement now be offered to them.
Having found that the Respondents were jointly responsible for the discrimi-
nation in hire and tenure of employment, the Trial Examiner will recommend
that: (1) The Respondents Carpenter and the Union jointly and'severally make
George McDonald whole; (2) the Respondents Stimm and the Union jointly and
severally make Harold Odell whole; and (3) that the Respondent Union make
Robert H. Francisco whole ; for any loss of pay they may have suffered by reason
of the discrimination against them by payment to each of them of a sum of money
equal to the amount he would normally have earned as wages during the period
of discrimination against him, less his net earnings during this period.'
4 Pacific Maritime Association , 89 NLRB 894 , Clara-Val Packing Company, 87 NLRB 703.
5 Nothing in these recommendations shall be deemed to require the Respondents to
vary or abandon any substantive provision of such agreement , or to prejudice the assertion
by employees of any rights they may have acquired thereunder.
Pacific Maritime Association, 89 NLRB 894.
As noted above, in the case of Francisco , it appears that the employer has, by terms of
a settlement agreement , made the employee whole for its proportionate share of back pay.
PURITY STORES, LTD. 199,
Upon the basis of the foregoing findings of fact and upon the entire record in
the case the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Hod Carriers', Building & Common Laborers' Union of America,
Local 210, AFL, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By executing and enforcing the contract of April 30, 1948, the Respondents,
General Contracting Employers Association, Carpenter & Skaer, Inc., and H F.
Stimm,' Incorporated, have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (3)'of the Act.
3. By discriminating in regard to the hire and tenure of employment, thereby
encouraging membership in the Respondent Union, of George McDonald and
Harold Odell, respectively, the Respondents Carpenter and Stimm have engaged
in and are engaging in unfair labor practices within the meaning of Section &
(a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondents Association, Carpenter
and Stimm, have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
5. By causing the Respondents, Carpenter and Stimm, and employer Seitz to
discriminate against employees in violation of Section 8 (a) (3) of the Act, the
Respondent Union has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Respondent Union has engaged in and is engaging
in unfair labor practices within the meaning of Section (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
PURITY STORES, LTD. and WAREHOUSE UNION, LOCAL No. 12, AFL,
PETITIONER
R. C. PELL, AN INDIVIDUAL D/B/A PELICAN PAPER COMPANY and WARE-
HOUSE UNION, LOCAL No. 12, AFL, PETITIONER
FRANK A. SMITH, RICHARD E. LOVE, AND ELLEN J. SMITH , A PARTNER-
SHIP , D/B/A SMITH , LYNDEN AND COMPANY and WAREHOUSE UNION,
LOCAL No. 12, AFL , PETITIONER . Cases Nos. 20-RC-965, 20-RC-
1011, and 20-RC-1012. February 12, 1951
Decision and Order
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Benjamin B. Law, hearing officer. The hearing officer's rulings made
93 NLRB No. 23.