Childs Co.

National Labor Relations Board - Board Decisions

Feb 15, 1951

93 N.L.R.B. 281 (N.L.R.B. 1951)

CHILDS COMPANY 281
appear to have been for the purpose of starting some employee's
training for pressman's work or of placing a former press operator
on different work. There is no evidence of such interchange of work-
men between pressmen and other categories as to indicate similarity
of work between the pressmen group and other departments.
We find, therefore, that the pressmen and pressmen trainees, with-
out the other employees in the printing department, may, if they so
desire, constitute a separate unit, or may continue to be represented as
part of the existing production and maintenance unit. Accordingly,
we shall direct an election in the following voting group :
All pressmen and pressmen trainees employed by the Employer in
the printing department of its plant at Dallas, Texas, excluding the
press washer, reserve seat ticket verifier, bindery girls, assistant bind-
ery girls, and cutters in the printing department, all other plant em
ployees, guards and watchmen, professional employees, and super-
visors as defined in the Act.
However, we shall make no final unit determination at this time, but
shall be guided in part by the desires of these employees as expressed
in the election. If a majority vote for the Petitioner, they will be
taken to have indicated their desire to constitute a separate unit.
[Text of Direction of Election omitted from publication in this
volume.]
CHILDS COMPANY and RUSSELL R. POTTER and CHAIN SERVICE RESTAU-
RANT EMPLOYEES UNION, LOCAL 42, AFFILIATED WITH HOTEL AND
RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION,
A. F. OF L., PARTY TO THE CONTRACT
CHAIN SERVICE RESTAURANT EMPLOYEES UNION, LOCAL 42, AFFILIATED
WITH HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTER-
NATIONAL UNION, A. F. of L. and RUSSELL R. POTTER and CHILDS
COMPANY, PARTY TO THE CONTRACT. Cases 20bs. 2-CA-420 and
2-CB-130.-February 15, 1951
Decision and Order
On November 18, 1949, Trial Examiner Sidney Lindner orally
granted the motion of the Respondent Union to dismiss the complaint
herein on the ground that it would not effectuate the policies of the
Act for the Board to assert jurisdiction in this case. Upon request by
the General Counsel, the Board reviewed this ruling of the Trial
Examiner and, on February 15, 1950, reversed it and ordered the case
remanded with instructions to hear the case on its merits and to
prepare and issue an Intermediate Report thereon. Pursuant to this
93 NLRB No. 35.
282 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
order, Trial Examiner Lindner issued his Intermediate Report on
June 28, 1950, 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.
The Trial Examiner also found that the Respondents had not engaged
in certain other unfair labor practices alleged in the complaint, and
recommended dismissal as to them. Thereafter, the Respondent
Union and the General Counsel filed exceptions and supporting
briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs filed by the Respondent
Union and the General Counsel, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner to the extent that they are consistent with the
Decision and Order herein.
A. The discrimination against Potter
The Trial Examiner found that neither the Respondent Union nor
the Respondent Company had discriminated against Potter in viola-
tion of Section 8 (a) (3) or 8 (b) (2) of the Act. We do not agree.
Since December 3, 1947, the Company and the Union have been parties
to a series of contracts containing an unauthorized union-security
clause and a "hiring hall" provision, as set forth in the Intermediate
Report. On January 19, 1948, the Union expelled Potter. - A day or
two later, the Company, at the Union's request, discharged Potter,
who had been employed by the Company, as a waiter for about 30
years. On June 24, 1948, Potter wrote to Frank, chairman of the
Company's board of directors, complaining about the treatment he
had received and stating that he would attempt to- interest Congress-
man Hartley in his case. On September 28, 1948, Potter filed charges
with the Board against both Respondents alleging that on January 23,
1948, he had been discharged in violation of the Act. On October 23,
1948, Potter again wrote to Frank and, after referring to the previous
correspondence, stated :
In which [letter of June 24] I voiced to you as New Company
Leader, my loss of job with the Company at the demand of Local
42 officials. Especially the fact that the Company's personnel
director flouted the Taft-Hartley Act in complying with such
demands.
Any way, since no further disposition of , same was received,
I decided to take such complaints to the.National Labor Relations
CHILDS COMPANY 1 283
Board for airing. Which you may or may not know about.
And since I had contacted you on the matter I felt I might be
sure you are made aware of same. [Sic.]
On October 28, 1948, Ecklund, director of industrial relations of the
Company, wrote to Potter that the October 23 letter had been referred
to him, and that :
... Pursuant to the terms of a contract between the Company
and . . . Local 42, the Company was required to terminate your
employment with it. Under these circumstances, the Company
cannot restore you to your former position.
On October 29, 1948, Potter filed amended charges against both
Respondents, reiterating his earlier allegation of illegal discharge,
and adding an allegation of illegal refusal to reinstate him on October
28, 1948.
On April 10, 1949, Potter wrote Ecklund, characterizing his
letter as:
Another request to be reestablished in the employment of the
Company with former rights. As well as compensatory losses I
have so suffered as a result which you perhaps are aware are
claims I have pending with the National Labor Relations Board.
[Sic.]
The Respondents claim that neither the June nor the October 1948
letter constituted a request for employment, but that they were merely
complaints by Potter about his treatment by the Company. Examina-
tion of these letters reveals, however, that while they are inartistically
drawn, the writer was seeking concrete relief in the form of employ-
ment. Any doubt the Company might have had about Potter's wish
to be hired following its receipt of his June 1948 letter must have been
dispelled by his October 23 letter, which was written after the filing
of the initial charge, and which referred to the charge and to the
Company's failure to make a disposition of the matters discussed in
the June 1948 letter. The Company's reply of October 28; 1948,
clearly shows that it considered Potter's October letter to be a request
for employment as a waiter for in it the Company refused to restore
him to his former position, although it was at that time hiring waiters.
Accordingly, we find that on October 23, 1948, Potter requested em-
ployment by the Company.
On the basis of the correspondence between Potter and the Company,
the Trial Examiner found that Potter's request for employment was
coupled with a demand that the Company restore his seniority rights
and accord him back pay, which rights the Trial Examiner found
Potter forfeited by failing to file timely charges following his dis-
charge. However, Potter's letters of June and October'1948, on which
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his charge was based, made no mention of either back pay or seniority
rights. These rights were mentioned in the April 10, 1949, letter
which Potter wrote after, he had filed charges and had presumably
discussed his rights with Board agents. Moreover, the Company
wrote its reply of October 1948 to Potter's June and October 1948
letters half a year before it received Potter's April 1949 letter. Under
these circumstances, we disagree with the finding of the Trial Ex-
aminer that all Potter's letters sought reinstatement coupled with
back pay and restoration of seniority rights, which finding was
apparently based upon the Trial Examiner's retroactive interpreta-
tion of Potter's 1948 letters in the light of his April 1949 letter.
Accordingly, we find that on October 23, 1948, a time when the Com-
pany was hiring waiters, Potter requested employment of the Com-
pany without conditioning his request upon the receipt of back pay
and the restoration of seniority rights.
Having made such a request for work, Potter clearly was in at least
as good a position as a new applicant for work, and the Company was
under an obligation toward him, as toward any other applicant, to
consider him without regard to the illegal requirement of its contract
with the Union. Instead, it took the position that Potter had been
discharged because of that contract and could not be restored to his
position because of that contract. Such a discriminatory refusal to
hire has been consistently found to be a violation of the Act.' Fur-
thermore, even if the Company had believed that Potter was condi-
tioning his return to work upon his receipt of back pay and restoration
of his seniority rights, it was violative of the Act for the Company to
couch its reply to him in terms which, because of his nonmembership
in the Union, precluded any possibility of Potter's being employed
by the Company. Accordingly, under all the circumstances of this
case, we find that the Company, on October 28, 1948, discriminatorily
refused employment to Potter in violation of Section 8 (a) (3) of the
Act.
B. The Union's liability
The Union argues that it did not "cause or attempt to cause" the
Company to discriminate against Potter in violation of Section 8 (b)
(2) of the Act. The testimony is in conflict as to whether or not the'
Union had ever specifically opposed the Company's reinstatement of
Potter. In view of his disposition of the case, the Trial Examiner
did not resolve this issue. The Company admitted that it did not
consult the Union before writing the October 28 letter, and also that it
had never requested the Union's permission to reinstate Potter. How-
ever, the contract of December 3, 1947, between the Company and
'Phelps Dodge Corporation v. N L R. B, 313 U S. 177; Daniel Hamm Drayage Com-
pany, 84 NLRB 485; Patent & Salant, Incorporated, 92 NLRB 343
CHILDS COMPANY 285
the Union, and its extension of October 6, 1948, expressly limit the
Company to hiring only union members; 2 knowing that Potter was
not a member of the Union, the Company was required under the
terms of the contract, to refuse employment to Potter. The Union
by becoming a party to such a contract, became jointly responsible with
the Company for establishing the company policy of refusing to hire
nonmembers of the Union. Under the Board's ruling in Acme Mat-
tress Company,' the Union thereby, in violation of Section 8 (b) (2)
of the Act, attempted to cause the Company to discriminate against
Potter. It is clear corollary to this- ruling that once such a contract
has resulted in actual discrimination, the Union must be deemed to
have caused such discrimination. Accordingly, we find that by en-
forcing the contract of December 3, 1947, and by extending it on Octo-
ber 6, 1948, the Union, in violation of Section 8 (b) (2) of the Act,
caused the Company to discriminate against Potter.
C. The legality of the contract
The Trial Examiner found that the continuation in force and effect
of an illegal union-security clause after April 30, 1948, and the exten-
sion of the contract on October 6, 1948, constituted violations of Sec-
tion 8 (a) (1) and 8 (a) (3) by the Company and of Section 8 (b) (2),
by the Union. He found no violation of Section 8 (b) (1) (A) by
the Union. The Union contends that the legality of the contract was
not properly before the Trial Examiner. The complaint alleges the
continuation and extension of the illegal union-security contract as
violations of Section 8 (a) (1), 8 (a) (3), 8 (b) (1) (A), and 8 (b)
(2). Copies of the contract and of the extension were put in evidence
by the General Counsel. The General Counsel requested, both in his
oral argument at the close of the hearing and in his brief to the Trial
Examiner , that because of the illegal union-security clauses the Trial
Examiner should require not only that the Respondents cease giving
effect to their contract and refrain from renewing it, but. also that the
Company cease recognizing the Union. Under these circumstances,
we find that the question of the legality of the contract was properly
before the Trial Examiner. Accordingly, we find, as did the Trial
Examiner, that by continuing in effect since April 30, 1948, the un-
lawful union-security contract, and by executing and continuing in
effect an extension of that contract on October 6, 1948, the Company
violated Section 8 (a) (1) and (3) and the Union violated Section 8
(b) (2) .4 Furthermore, as the Union executed an unlawful union-
2 It is further provided that when no union members are available , the Company may
employ nonunion workers , who are required by the contract to obtain working permits"
from the Union and to join the Union within 2 weeks of their employment.
3 91 NLRB 1010
4 Clara-Val Packing Company , 87 NLRB 703.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security contract and caused the refusal to employ Potter pursuant to
that contract, we find that by each of these actions the Union restrained
Potter in the exercise of his rights guaranteed under Section 7 of the
Act, and thereby violated Section 8 (b) (1) (A) of the Act.5
D. The remedy
We have found that the Company, on October 28, 1948, discrimi-
natorily refused' to hire Russell R. Potter in violation of Section 8
(a) (1) and 8 (a) (3) of the Act, and that the Union caused the
Company to do so in violation of Section 8 (b) (2) and 8 (b) (1) (A)
of the Act. We shall therefore order the Company to offer Potter
immediate employment as a waiter or in a substantially equivalent
position, with the seniority and other privileges that he would have
accrued from October 28, 1948, absent any discrimination against him.
We shall further order the Respondents, jointly and severally, to
make Potter whole for any loss of pay he may have suffered by pay-
ment to him of a sum of money equal to that which he normally
would have earned as wages from the date of the discriminatory
refusal to employ him to the date of the Company's offer of employ-
ment, less his net earnings during said period. Loss of pay shall be
determined by deducting from a sum equal to that which Potter
would normally have earned for each quarter or portion thereof, his
net earnings, if any, in other employment during that period. Earn-
ings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter e The quarterly periods described
herein shall begin with the first day of January, April, July, and
October. We shall also order the Company to make available to
the Board, upon request, payroll and other records in order to facili-
tate the checking of the amount of back pay due .7 Because of the
Trial Examiner's failure to find that Respondents discriminated
against Potter, the period from the date of the Intermediate Report
to the date of the Order herein, is, in accordance with our usual
practice, excluded in computing the amount of back pay awarded
to Potter.
It would, however, be inequitable to the Union to permit the amount
of its liability for back pay to increase despite the possibility of its
willingness to cease its past discrimination, in the event that the
Company should fail promptly to offer employment to Potter. We
,shall therefore provide that the Union may terminate its liability
for further accrual of back pay to Potter, by notifying the Company
5 New York State Employers' Association, Inc, and Red Star Express Lines of Auburn,
Inc , 93 NLRB No. 127 ; Clara-Val Packing Company, supra.
s F W. Woolworth Company, 90 NLRB 289.
' Ibtid.
CHILDS COMPANY 287
in writing that it has no objection to Potter's employment. The
Union shall not thereafter be liable for any back pay accruing after
5 days from the giving of such notice. Absent such notification,
the Union shall remain jointly and, severally liable with the Com-
pany for all back pay to Potter that may accrue until the Company
complies with our order to offer him employment.
Having found that the contract of October 26, 1948, between the
Union and the Company, violated Section 8 (a) (1), 8 (a) (3), and
8 (b) (2) of the Act, the Trial Examiner ordered that the parties
cease giving effect to the entire contract and refrain from entering
into a new contract containing unlawful union-security provisions.
However, as no violation of Section 8 (a) (2) of the Act has been
alleged nor found, we shall limit our order in this respect to requir-
ing the parties to cease giving effect to those provisions of their
collective bargaining agreement which require membership in the
Union as a condition of employment, except in accordance with the
proviso to Section 8 (a) (3),$ and to refrain from executing agree-
ments in the future containing union-security provisions except as
authorized by the Act.
The Trial Examiner recommended that the Respondents cease and
desist from the unfair labor practices which he found to have been
committed. However, the Respondents' illegal activities, including
the discriminatory refusal to hire Potter, go to the very heart of the
Act and indicate a purpose to defeat the Company's employees in the
exercise of their rights under the Act. We are convinced that the
unfair labor practices which we found to have been committed by the
Respondents are potentially related to other unfair labor practices
proscribed by the Act, and that danger of their commission in the
future is to be anticipated from the Respondents' conduct in the past.
The preventive purpose of the Act will be thwarted unless our order
is coextensive with the threat. In order, therefore, to make effective
the interdependent guarantees of Section 7 and thus effectuate the
policies of the Act, we shall order the Respondents to cease and desist
from in any manner infringing upon the rights of employees guaran-
teed by the Act.9
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 :
I. Childs Company, New York, New York, its officers, agents, suc-
cessors, and assigns, shall : - - -
8 Acme Mattress Company, 91 NLRB 1010.
9 May Department Stores v N. L. R. B , 326 U. S. 376 ; N. L. R. B. v. Entwistle Manu-
facturing Co., 120 F. 2d 532.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Cease and desist from :
(1) Refusing to hire any qualified person or discriminating in any
other manner in regard to the hire of any qualified person or discrimi-
nating in any other manner in regard to the tenure of employment or
any terms and conditions of employment of its employees for failure to
belong to Chain Service Restaurant Employees Union, Local 42, affili-
ated with Hotel and Restaurant Employees and Bartenders Inter-
national Union, A. F. of L., or to any other labor organization except
as authorized by Section 8 (a) (3) of the Act;
(2) Giving effect to the unlawful union-security provisions of its
collective bargaining agreement with Chain Service Restaurant Em-
ployees Union, Local 42, affiliated with Hotel and Restaurant Em-
ployees and Bartenders International Union, A. F. of L., and from
entering into and enforcing any extension, renewal, modification, or
supplement thereof, or any superseding agreement, which requires
membership in the latter organization as a condition of employment,
except in accordance with the proviso to Section 8 (a) (3) of the
Act.
(3) In any other manner interfering with, restraining, and coerc-
ing its employees in their 'exercise or failure to exercise the rights
guaranteed to them by Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership
in a labor organization as authorized by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(1) Offer to Russell R. Potter immediate employment as a waiter
or in a substantially equivalent position with all the rights of seniority
and other privileges that would have accrued from the discrimina-
tory refusal to hire him on October 28, 1948;
(2) Upon request, make available to the Board or its agents for
examination and copying all payroll and other records necessary to
analyze the amount of pay due under the terms of this Order;
(3) Post at all its restaurants and stands located in New York,
New York, copies of the notice attached hereto and narked Appendix
A.10 Copies of the notice, to be furnished by the Regional Director for
the Second Region, shall, after being duly signed by the Respondent
Company, be posted by it immediately upon receipt thereof, and main-
tained by it for at least sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
30 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words . "A Decision and Order ," the words,
"A Decree of the United States Court of Appeals Enforcing."
CHILDS COMPANY 289-
(4) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
II. Chain Service Restaurant Employees Union, Local 42, affiliated
with Hotel and Restaurant Employees and Bartenders International
Union, A. F. of L., its officers, representatives, and agents, shall:
(a) Cease and desist from:
(1) Causing Childs Company, its officers, agents, successors, and
assigns, to refuse to hire any qualified person or to discriminate in any
other manner in regard to the hire of any qualified person or to dis-
criminate in any other manner in regard to the tenure of employment
or any terms and conditions of employment of its employees for
failure to belong to Chain Service and Restaurant Employees Union,
Local 42, affiliated with Hotel and Restaurant Employees and Bar-
tenders International Union, A. F. of L., or to any. other labor organi-
zation except as authorized by Section 8 (a) (3) of the Act.
(2) Giving effect to the unlawful union-security provisions of its
collective bargaining agreement with Childs Company, its successors
or assigns, New York, New York, and from entering into or enforcing
any extension, renewal, modification, or supplement thereto, or any
superseding agreement which requires membership in Chain Service
Restaurant Employees Union, Local 42, affiliated with Hotel and
Restaurant Employees and Bartenders International Union, A. F. of
L., as a condition of employment, except in accordance with Section
S (a) (3) of the Act.
(3) In any other manner restraining and coercing employees of
Childs Company, New York, New York, its successors or assigns, in
their exercise or failure to exercise the rights guaranteed to them by
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization
as authorized by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Post at its offices in New York, New York, and wherever
notices to its members are customarily posted, copies of the notice
attached hereto and narked Appendix B 11 Copies of the notice, to
be furnished by the Regional Director for the Second Region, shall,
after being duly signed by an official representative of the Respond-
ent Union, be posted by it immediately upon receipt thereof, and
maintained by it for at least sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken to insure
a In the event this Order is enforced by a decree of a United States Court of , Appeals,
there shall be inserted in the notice , before the words, "A Decision and Order," the words,
"A Decree of the United States Court of Appeals Enforcing."
943732-51-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that said notices are not altered, defaced, or covered by any other
material.
(2) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto, marked Appendix B, for posting,
the Respondent Company willing, at the Childs Company's restau-
rants and stands located in New York, New York, in places, where
notices to its employees are customarily posted. Copies of said notice,
to be furnished by the Regional Director, shall, after being signed
as provided by paragraph 2 (b) (1) of this Order, be forthwith
returned to said Regional Director for said posting.
(3) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
III. Childs Company, New York, New York, its officers, agents,
successors, and assigns, and Chain Service and Restaurant Employees
Union, Local 42, affiliated with Restaurant and Hotel Employees and
Bartenders International Union, A. F. of L., its officers, representa-
tives, and agents shall jointly and severally made whole Russell R.
Potter in the manner set forth in the section entitled "The Remedy"
for any loss of pay he may have suffered by the Respondents' dis-
crimination against him.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to hire any qualified person or discriminate
in any other manner in regard to the hire of any qualified person
or discriminate in any other manner in regard to tenure of
employment or any terms and conditions of employment of our
employees for failure to belong to CHAIN SERVICE RESTAURANT
EMPLOYEES UNION, LOCAL 42, AFFILIATED WITH HOTEL AND RES-
TAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION, A.
F. OF L., or to any other labor organization except as authorized
by Section 8 (a) (3) of the Act.
WE WILL cease to give effect to the unlawful union-security pro-
visions of our collective bargaining agreement with CHAIN SERV-
ICE RESTAURANT EMPLOYEES UNION, LOCAL 42, AFFILIATED WITH
HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNA-
TIONAL UNION, A. F. OF L.
CHILDS COMPANY 291
WE WILL NOT enter into or enforce any extension , renewal, mod-
ification, or supplement of that agreement, or any superseding
agreement, which requires membership in the above-named or-
ganization as a condition of employment, except in accordance
with the proviso to Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, and
coerce our employees in their exercise or failure to exercise the
rights guaranteed to them by Section 7 of the Act, except to the
extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as authorized by Section
8 (a) (3) of the Act.
WE WILL offer to Russell R. Potter immediate employment as
a waiter or in a substantially equivalent position, with all the
rights of seniority and other privileges that would have accrued
since the discriminatory refusal to hire him on October 28, 1948.
WE WILL jointly and severally with CHAIN SERVICE RESTAURANT
EMPLOYEES UNION, LOCAL 42, AFFILIATED WITH HOTEL RESTAU-
RANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION9 A. F.
OF L., make Russell R. Potter whole for any loss of pay he may
have suffered by reason of our discrimination against him.
CHILDS COMPANY,
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 B
NOTICE TO ALL MEMBERS OF CHAIN SERVICE RESTAURANT EMPLOYEES
UNION, LOCAL 42, AFFILIATED WITH HOTEL AND RESTAURANT EM-
PLOYEES AND BARTENDERS INTERNATIONAL UNION, A. F. OF L. AND
TO ALL EMPLOYEES OF CHILDS COMPANY
Pursuant to a 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 NOT cause CHILDS COMPANY, its officers, agents, suc-
cessors, and assigns, to refuse to hire any qualified person or to
discriminate in any other manner in regard to the hire of any
qualified person or to discriminate in any other mariner in regard
to tenure of employment or any terms and conditions of employ-
ment of its employees for failure to belong to Chain Service Res-
taurant Employees Union, Local 42, affiliated With Hotel and
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Restaurant Employees and Bartenders International Union,,
A. F. of L., or to any other labor organization except as authorized
by Section 8 (a) (3) of the Act.
WE WILL NOT give effect to the unlawful union-security provi-
sions of our collective bargaining agreement with CHILDS
COMPANY.
WWE WILL NOT enter or enforce any extension, renewal, modifica-
tion, or supplement of that agreement, or any superseding agree-
ment, with CHIL Ds COMPANY, which requires membership in Chain
Service Restaurant Employees Union, Local 42, affiliated with
Hotel and Restaurant Employees and Bartenders International
Union, A. F. of L., as a condition of employment, except in
accordance with Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain and coerce em-
ployees of CHILDS COMPANY, in their exercise or failure to exer-
cise the rights guaranteed to them by Section 7 of the Act, except
to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as authorized by
Section 8 (a) (3) of the Act.
WE WILL jointly and severally with CHILDS COMPANY make
Russell R. Potter whole for any loss of pay he may have suffered
by reason of our discrimination against him.
CHAIN SERVICE RESTAURANT EMPLOYEES UNION,
LOCAL 42, AFFILIATED WITH HOTEL AND RESTAU-
RANT EMPLOYEES INTERNATIONAL UNION, A. F.
of L.,
Labor Organization.
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 and Recommended Order
D. J. Sullivan, Esq, for the General Counsel.
Root, Ballantine, Harlan, Busby & Palmer, by William J. Krudel, Esq., and
Gerald Bouvier, Esq., of New York, N. Y., for the Respondent Childs Company.
Boudin, Cohn & Gliclcstein, by Sidney E. Cohn, Esq., of New York, N. Y., for
the Respondent Union.
STATEMENT OF THE CASE
Upon a first amended charge filed on October 29, 1948,' by Russell R. Potter,
an individual, herein called Potter, the General Counsel of the National Labor
Relations Board, herein called, respectively, the General Counsel and the Board,
' The original charge was filed on September 28, 1948. 1
CHILDS COMPANY 293
by the Regional Director for the Second Region (New York, New York), issued
his complaint dated August 26, 1949, against Childs Company, and Chain Service
Restaurant Employees Union, Local 42, affiliated with Hotel and Restaurant
Employees and Bartenders International Union, A. F of L, Respondents, herein
called respectively Childs and Local 42, alleging that Respondent Childs had -en-
gaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act,
and that Respondent Local 42 had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (b) (1) (A) and
(2) and Section 2 (6) and (7) of the Act.
Copies of the complaint, charge and amended charge, order consolidating
cases, together with notice of hearing, were duly served upon Potter and the
Respondents.
With respect to the unfair labor practices the complaint alleged in substance
that (a) Childs and Local 42, have since April 30, 1948, continued in effect and
on October 6, 1948, renewed an October 14, 1947, agreement which provided
,inter alva that Childs would retain in its employ only members of Local 42 in
good standing and upon demand of Local 52 would discharge any employee not
in good standing; (b) Local 42 after April 30, 1948, required Childs to refuse
to reinstate Potter, an employee whose membership in Local 42 had been ter-
ininated and whose discharge had been demanded and required about January
19, 1948, by Local 42; and (c) by each of these acts Childs violated Section 8 (a)
(1) and (3) and Local 42 violated Section 8 (b) (1) (A) and (2) of the Act.
Childs' answer duly filed denied the commission of any unfair labor practices
and affirmatively alleged that its business activities were local in character and
do not affect commerce within the meaning of Section 2 (6) and (7) of the Act.
Further, that the unfair labor practices alleged in the complaint occurred more
than 6 months prior to the filing of a charge with the-Board and the service of
a copy thereof upon it as required by Section 10 (b) of the Act.
The answer of Local 42 duly filed denied that it committed any unfair labor
practices and as separate and complete defenses to the allegations of the com-
plaint set forth (1) that the Board does not have jurisdiction herein in that
the matters set forth in the complaint do not relate to or affect interstate com-
merce; (2) that the State of New York, its political subdivisions, their boards
and agencies have jurisdiction of the matter involved in this proceeding and
have asserted and exercised said jurisdiction for many years past with the ac-
quiescence , consent, and knowledge of the Board; (3) that the unfair labor
practices alleged in the complaint occurred more than 6 months prior to the
filing of a charge with the Board and the service of a copy thereof upon it as
required by Section 10 (b) of the Act.
Pursuant to notice a hearing was held in New York City on October 18 and
November 16, 17, and 18, 1949, before Sidney Lindner, the undersigned Trial
Examiner duly appointed by the Chief Trial Examiner. The General Counsel
and the Respondents were represented by counsel and participated in the hear-
ing. For the most part the testimony heard on the above-noted dates had to
do with the question of commerce, and upon the completion thereof the under-
signed orally granted Local 42's motion to dismiss the complaint herein on the
ground "that it would not effectuate the policies of the Act to assert jurisdiction
in this case." At the same time Childs' motion to dismiss the complaint as a
matter of law, because as it contended its business was wholly unrelated to
commerce , was denied.
In its decision dated February 15, 1950, 88 NLRB 720, the Board, finding
that Childs is engaged in commerce within the meaning of Section 2 (6) and (7)
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, reversed the Trial Examiner's order dismissing the complaint and
issued an order remanding the case to him with instructions to hear the same
on its merits and to prepare and issue an Intermediate Report thereon.
A further hearing was held in New York City on March 22, 23, and 24, 1950.
The General Counsel and the Respondents were represented by counsel and
participated in the hearing. Full opportunity to examine and cross-examine
witnesses and to introduce evidence bearing on the issues was afforded all
parties. At the conclusion of the General Counsel's case, Local 42 moved to
dismiss the complaint as to it upon the grounds that the General Counsel had
failed to prove that Potter suffered any damages based upon Local 42's activi-
ties or its contract with Childs. The motion was denied. At the conclusion
of the hearing Local 42 again moved to dismiss the complaint on jurisdictional
grounds. The motions were denied. The undersigned also denied Local 42's
motion to dismiss the complaint because of the statute of limitations. Ruling was
reserved on its motion to dismiss the complaint on the grounds of failure of
proof and is disposed of by the recommendations hereinafter made. The mo-
tions of counsel for Childs to dismiss the complaint on jurisdictional grounds
were denied as was his motion to dismiss because of the statute of limitations.
Ruling was reserved on Childs' motion to dismiss the complaint on the ground
that the General Counsel had not sustained his burden of proof and is disposed
of by the recommendations hereinafter made. The General Counsel's motion
to conform the pleadings to the proof as to minor matters was granted over
the objection of counsel for Childs. The General Counsel and counsel for
Childs availed themselves of the opportunity to argue orally. Briefs have been
received from the General Counsel and counsel for Local 42 and have been
considered.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
L THE BUSINESS OF RESPONDENT CHILDS
In accordance with the Board's decision in 88 NLRB 720 referred to above,
it is found that Respondent Childs is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Chain Service Restaurant Employees Union. Local 42, affiliated with Hotel
and Restaurant Employees and Bartenders International Union, A. F. of L.,
is a labor organization admitting to membership employees of Respondent
Childs.
M. THE UNFAIR LABOR PRACTICES
The facts
On December 3, 1947, Local 42 and Childs entered into a collective bargaining
agreement retroactive to October 14, 1947, to be in effect until September 30,
1948. By the terms of said agreement Local 42 was recognized as the exclusive
representative of all Childs' employees in its New York City restaurants and
stands excluding hostesses, managers, assistant managers, cashiers, assistant
cashiers, clerical workers, special officers, and persons regularly employed in
checking hats and coats. The agreement also contained, inter alia, union-secu-
rity provisions as follows :
CHILDS COMPANY 295
Two : The Employer agrees to employ and to maintain in its employ,
in all of the categories covered by this agreement , only persons who are
members of the Union in good standing.
The Union shall give the Employer written notice of any employee not
in good standing and the Employer shall have three ( 3) days to remove
such employee.
Three: The Employer agrees that when it requires employees in any of
the categories covered by this agreement , it will hire such employees only
through the Union.
(a) The Employer agrees that it will refuse to accept any employees
without a working card from the Union . The working card shall be given
to the Shop Steward or delegate and a duplicate shall be presented to the
Manager.
On October 6, 1948, Childs and Local 42 agreed to extend their collective bar-
gaining agreement until May 1, 1950, with certain changes not material here.
The new agreement contained the identical union -security provisions as set
forth hereinabove.
Russell R. Potter commenced his employment with Childs in 1917. From
1933 until the date of his discharge on January 2, 1948, Potter worked as a.
waiter. In 1947 when the Hotel and Restaurant Organizing Committee, the
predecessor union to Local 42, and Childs entered into a collective bargaining
contract , Potter became a member of the Union and maintained his membership
until expelled in 1948.
On January 19, 1948, Local 42 advised Potter by registered mail of his
expulsion from the Union as a result of charges brought against him by the
Strike Trial Committee s and a vote of the membership at a regularly conducted
meeting. That same day Local 42 communicated the fact of Potter 's expulsion
from the Union to Childs , requesting " that he be removed from his job imme-
diately." Within a day or two Potter was discharged by Childs.
Under date of June 24 , 1948, Potter in a letter to Everett Frank , chairman of
Childs' board of directors , introduced himself "as a stockholder and a former
employee . . . for more than 30 years ." Among other things the letter stated
that union officials had demanded his discharge because of a trumped -up con-
viction in the Union of strike breaking and that his discharge came about with-
out objection on the part of Childs ' management . In fact, claimed Potter, it was
condoned by them. The letter then related the fact that Potter was going to
make an effort to interest Representative Hartley to investigate his "case" and
asked for the cooperation of Frank as well as all new members of the Childs'
board of directors.
By letter dated July 8, Frank advised Potter that the matters contained in
his June 24 letter were receiving consideration.
On September 28, 1948, Potter filed with the Board charges against Childs
and Local 42 alleging "On January 23, 1948 I was discharged from Childs Res-
taurant at 109 West 42d Street, New York City, at the insistence of Local 42 of
the Chain Service Restaurant Employees Union of 950 Eighth Avenue, upon the
premises that a closed shop agreement gave the Union power to demand my
discharge though my dues were paid up to date. I believe such closed shop
contract was illegal since no election was held among the employees pursuant
to Section 9 (e) (3) of the Taft-Hartley Act."
2 There was a strike in effect at all Childs' New York City restaurants from October 1,
1947, until on or about October 13. 1947.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 23, Potter in another letter to Frank again brought to the latter's
attention the fact that he lost his job with Childs upon the demand of Local 42,
and that he had decided to take his complaints to the Board for "airing."
By letter dated October 28 Arthur L. Ecklund, Childs' industrial relations
director, replied to Potter's October 23 letter, advising that he had reviewed the
situation and found "that pursuant to the terms of a contract between the Com-
pany and-Local 42, the Company was required to terminate [Potter's] em-
ployment. Under these circumstances, the Company cannot restore you to your
former position "
On October 29, 1948, Potter filed an amended charge with the Board alleging
in addition to the January 23, 1948, discharge set forth in detail hereinabove,
the fact that Childs had refused to reinstate him to his former position because
of "the terms of the existing labor contract."
Under date of April 10, 1949, Potter sent the following letter to Ecklund :
This is an inquiry to ascertain whether you have by this time become
familiar with the Taft-Hartley Act, to recognize (sic) that you errored in
submitting to the Union's demand to terminate my employment with Childs
Company at 109 West 42nd Street. As you officially stated in letter of October
28, 1948, "Pursuant to union contract you was required to do."
In the event you may have detected same was made, in error, Please
except (sic) this as another request to be reestablished in the employment
of the company with former rights. As well as compensary losses I have so
suffered as a result. Which you perhaps are aware is claims I have pend-
ing with the National Labor Relations Board.
Potter did not receive an answer to his April 10, 1949, inquiry, nor has he
received any further communications from Childs. Ecklund testified that Childs
has hired waiters in its New York City stores since April 30, 1945, as they were
needed. Potter has never been reemployed.
Conclusions
There is no dispute in the record that the Respondents have from April 30,
1948 (6 months prior to the service of the amended charge) to and including
October 6, 1948, continued in effect the agreement containing the union-security
provisions set out in detail hereinabove Since such union-security clauses pro-
vide for a closed shop and hiring hall, the undersigned finds them to be illegal.
On October 6, 1948, the Respondents renewed their agreement containing the
illegal union-security provisions and continued it in force and effect thereafter
up to and including the time of the hearing. It is settled that the execution
of an illegal union-security contract restrains employees in the exercise of the
rights guaranteed in Section 7 of,the Act 3 Furthermore the Board has held
that even where a contract containing such illegal union-security clauses has
not been enforced, its "mere existence" acts as a restraint upon those em-
ployees who might not wish to join the contracting union 3 Accordingly, it is
found that by the continuation in force and effect of the illegal union-security
contract after April 30, 1948, and its subsequent renewal, Respondent Childs
interfered with, restrained, and coerced its eifiployees in the exercise of the
rights guaranteed in Section 7 of the Act. It has also been established by the
Board that the execution of an illegal union-security contract discriminates
3 Hazel-Atlas Glass Company , at al , 85 NLRB 1305 ; Julius Resnick, Inc, 86 NLRB 38;
Clara-Val Packing Company, 87 NLRB 703.
'Julius Resnick, Inc, supra , C Hager & Sons Hinge Manufacturing Company, 80
NLRB 163
CHILDS COMPANY 297
against employees in regard to their hire and tenure of employments Accord-
ingly, it is found that by the continuation, in force and effect of the illegal union-
security contract after April 30, 1948, Respondent Childs discriminated against
its employees in regard to their hire and tenure of employment It is also-
found that the Respondent Local 42, by its continuation in force and effect of
the illegal union-security contract after April 30, 1948, and the subsequent
renewal thereof, violated Section 8 (b) (2) of the Act,6 but not Section 8
(b) (1) (A)
It is the contention of the General Counsel that Potter's letters of June 24
and October 23, 1948, and April 10, 1949, must be construed as a request for
reinstatement to the job from which he had been illegally discharged in January
1948 and that the refusal of reinstatement to Potter by Childs at the request
of Local 42 during the 6-month period prior to the filing of the amended
charge herein constituted violations of Section 8 (a) (3) and (1) by Childs
and 8 (b) (2) and (1) (a) by Local 42. The Respondents contended at the
hearing that the statute of limitations set forth in Section 10 (b) is applicable
to the situation herein. In addition Local 42 urged in its brief that the entire
theory upon which the General Counsel's case is founded is that a dead cause
of action, the illegal discharge in January 1948, which was barred by the
statute, could be revived and rights predicated thereon, by the mere request for
reinstatement after the cause of action on the ,wrong on which such rights were
founded, was itself outlawed.
In order to arrive at a determination of this issue, it becomes necessary to
ascertain exactly what Potter requested of Respondent Childs. A careful
analysis of Potter's letters to Childs' board of directors, as well as the charges
filed with the Board, leads unmistakably to the conclusion and the undersigned
finds that Potter was requesting reinstatement to the job from which he had
been discharged together with all of the rights which he would have had but
for such discharge as well as compensation for the loss of wages suffered by
him 8 The General Counsel conceded that Potter's illegal discharge was barred
by Section 10 (b) for the reason that Potter "sat on his rights" from January
until September 1948 when the original charge in this case was filed. He insists
however that the amended charge filed by Potter, alleging a refusal to rein-
state, upon which the complaint herein is based, created a new cause of action.
The undersigned is of the opinion and finds that although Potter was osten-
sibly asking Childs for reinstatement, he was actually insisting upon restoration
to the status quo which in essence was a remedy to his illegal discharge in
January 1948. Any and all rights whatsoever flowing from the illegal discharge
were extinguished by reason of Potter's failure to file his charge based thereon
with the Board within the 6-month period required by Section 10 (b) of the
Act. Therefore all remedial rights to which he would have been entitled
are also barred.
The undersigned in arriving at this conclusion has applied the rule that where
a statute sets forth conditions or limitations abridging the remedy for the viola-
tion of a right or obligation created or imposed by that statute, not only is the
remedy affected, but the right or duty itself is correspondingly circumscribed.
"Amalgamated Meat Cutters, et al. (The Great Atlantic and Pacific Tea Co ), 81 NLRB
1052.
"Amalgamated Meat Cutters, et al (The Great Atlantic and Pacific Tea Co.), supra;
National Maritime Union, 78 NLRB 971.
G International Typographical Union, 86 NLRB 951, International Union, United Mine
Workers of America, 83 NLRB 916.
1 See particularly Potter's letter of April 10, 1949
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Harrisburg, 119 U. S. 199, 214; Davis v. Mills, 194 U. S. 451, 454; Atlantic
Coast Line R. R. v Burnette , 239 U. S..199, 201; Midstate Horticultural Co., Inc.
v. Penna. R. R. Co., 320 U. S. 356. The Court of Appeals for the Tenth Circuit
-in a case involving a 1-year limitation on actions accruing under the Emergency
Price Control Act, Matheny v. Porter, 158 F. 2d 478, 479, stated :
. . . Section 205 (e) creates a new liability, one unknown to the common
law and not finding its source elsewhere. It creates the right of action and
fixes the time within which a suit for the enforcement of the right must be
commenced. It is a statute of creation, and when the period fixed by its
terms has run, the substantive right and the corresponding liability end.
Not only is the remedy no longer available, but the right of action itself is
extinguished. The commencement of the action within the term is an
indispensable condition of liability.
Accordingly, the undersigned will recommend that the allegations of the com-
plaint that Respondent Local 42 required Respondent Childs after April 30,
1948, to refuse to reinstate Potter to his former or substantially equivalent posi-
,tion, in violation of Section 8 (a) (1), 8 (a) (3), 8 (b) (1) (A), and 8 (b) (2)
of the Act, be dismissed.
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 Respondent Childs have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor prac-
tices, it will be recommended that they cease and desist therefrom and that
they take certain affirmative action designed to effectuate the policies of the
Act.
Having found that the contract of October 14, 1947, between the Respondents
which was continued in force and effect subsequent to April 30, 1948, and ex-
tended on October 6, 1048, contains illegal union-security provisions, it will be
recommended that the Respondents cease and desist from giving effect to the
entire contract, and from entering into, renewing, or enforcing any agreement
which requires membership in Local 42 as a condition of employment, or which
grants preference in hiring to members of Local 42, unless such agreement is
authorized as provided in the Act. Nothing in this recommendation, however,
shall be deemed to require Respondent Childs to vary or abandon those wages,
hours, seniority , or other substantive features of its relations with its employees
established in performance of such contract, or to prejudice the assertion by the
employees of any rights they may have under such agreement . Since there is no
allegation that the illegal union-security provisions of the contract constituted
support to Local 42 in violation of Section 8 (a) (2) it will not be recommended
that Childs withhold recognition from Local 42 unless and until Local 42 is certi-
fied by the Board.°
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
° Pacific Maritime Association, 89 NLRB 894.
GAYNOR NEWS COMPANY, INC. 299
CONOLUSIONS OF LAw
1. The operations of Childs Company constitute trade, traffic, and commerce
among the several States within the meaning of Section 2 (6) and (7) of the Act.
2. Chain Service Restaurant Employees Union, Local 42, affiliated with Hotel
and Restaurant Employees and Bartenders International Union, A. F. of L., is a
labor organization % ithin the meaning of Section 2 (5) of the Act.
3. By continuing in force and effect after April 30, 1948, and on October 6,
1948, extending a contract containing illegal union-security provisions, Re-
spondent Childs Company has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, and
discriminated in regard to the hire and tenure of employment of employees and
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act.
4. By continuing in force and effect after April 30, 1948, and on October 6,
1943, extending a contract containing illegal union-security provisions, Re-
spondent Local 42 has attempted to cause Childs Company to discriminate against
employees in violation of Section 8 (a) (3) of the Act and has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (b) (2) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent Local 42 has not engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act by continuing in force and effect
after April 30, 1948, and on October 6, 1948, extending its contract with Childs
Company containing illegal union-security provisions.
7. Respondent Childs Company has not engaged in unfair labor practices
within the meaning,of Section 8 (a) (1) and (3) of the Act by its refusal to
reinstate Russell R: Potter to his former job.
8. Respondent Local 42 has not engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and (2) of the Act for requiring Respondent
Childs as alleged in the complaint to refuse to reinstate Russell R. Potter to his
former job.
[Recommended Order omitted from publication in this volume.]
GAYNOR NEWS COMPANY, INC. and SHELDON A. LONER and NEWSPAPER
& MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY, PARTY TO
THE CONTRACT. Case No. -CA-605. February 16, 1951
Decision and Order
On October 19, 1950, Trial Examiner Sydney S. Asher 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and supporting brief.
93 NLRB No. 36.