H. Muehlstein & Co., Inc

National Labor Relations Board - Board Decisions

Jun 21, 1957

118 N.L.R.B. 268 (N.L.R.B. 1957)

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The Respondent has not engaged in unfair labor practices by according its
nonstriking employees and replacements during the period of the December 1 to 8,
1953, strike, superseniority over its employees who participated in the strike.
8. The Respondent has not engaged in unfair labor practices by instituting and
discriminatorily applying a system of aptitude tests.
[Recommendations omitted from publication.]
H. Muehlstein & Co., Inc. and Emmett A. Hunter and Rubber and
Plastic Workers Union , Local No. 82, affiliated with Distillery,
Rectifying Wine and Allied Workers' International Union of
America, AFL-CIO. Case No. 13-CA-9251. June 21,1957
DECISION AND ORDER
On December 11, 1956, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
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, Respondent filed ex-
ceptions to the Intermediate Report together with a supporting brief.
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 Bean and Jenkins].
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, Respondent's exceptions and brief,' and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendation of the Trial Examiner with certain modifications 2
1 These adequately present Respondent's position . Its request for oral argument is
therefore denied.
2 The Trial Examiner found that "in delegating to the Union final authority in the
determination of whether an employee is a member in good standing ,' and that the Union
could effectuate his dismissal when he ceased to maintain that status ," Respondent vio-
lated the Act. As no exceptions have been taken to this finding, we adopt it pro forma.
Similarly , no exceptions have been taken to the Trial Examiner's finding that , because the
parties did not attempt to enforce the unlawful security provisions in their contract,
Respondent did not violate Section 8 (a) (3) by the inclusion of such unlawful clauses
in its contract with the Union. We also adopt this finding pro forma without neces-
sarily adopting the Trial Examiner 's rationale . See Carty Heating Corporation, 117
NLRB 1417; County Electric Co., Inc., 116 NLRB 1080 , 1081-1082 ; and Port Chester
Electrical Products Corporation, 97 NLRB 354 , 355-356 , where we have held that dis-
criminatory contractual provisions are also violative of Section 8 (a) (3) of the Act
whether or not they are enforced , unless there is an actual agreement between the parties
not to enforce them.
Although not reflected in the Intermediate Report the contract accords employees. the
requisite 30-day grace period in which to join the Union.
118 NLRB No. 34.
H. MUEHLSTEIN & CO., INC. 269
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent H. Muehlstein & Co.,
Inc., Chicago, Illinois, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Rubber and Plastic Workers
Union, Local No. 82, affiliated with Distillery, Rectifying Wine and
Allied Workers' International Union of America, AFL-CIO, or in
any other labor organization of its employees by discharging or re-
fusing to reinstate any of its employees, or by discriminating in any
other manner in regard to their hire or tenure of employment or any
term or condition of employment.
(b) Agreeing to, continuing in force, or giving effect to, illegal
union-security provisions in any collective-bargaining agreement with
Rubber and Plastic Workers Union, Local No. 82, affiliated with Dis-
tillery, Rectifying Wine and Allied Workers' International Union of
America, AFL-CIO.
(c) In.any other manner, interfering with, restraining or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives of their- own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all of such activ-
ities except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section'8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Einniett A. Hunter immediate and full reinstatement
to his former or a substantially equivalent position, without prejudice
to the seniority or other rights and privileges previously enjoyed by
him.
(b) Make whole Emmett A. Hunter in the manner set forth in the
section of the Intermediate Report entitled "The Remedy" for any
loss of pay he may have suffered by reason of Respondent's
discrimination against him. .
(c) Upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social-security payment
records , timecards , personnel records and reports, and all other records
necessary to determine the :amount of back pay . due under the terms
of this order.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post in conspicuous places at its place of business in Chicago,
Illinois, in all locations where notices to employees are customarily
posted, copies of the notice attached hereto and marked "Appendix
A." 3 Copies of said notice, to be furnished by the Regional Director
for the Thirteenth Region, shall, after being duly signed by Respond-
ent's official representative, be posted immediately upon receipt there-
of, and be maintained by Respondent for a period of at least sixty (60)
consecutive days thereafter. Reasonable steps shall be taken by
Respondent to insure that said notice is not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order of the steps
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that by maintaining in effect the illegal
union-security provisions in its collective-bargaining agreement with
the Union Respondent violated Section 8 (a) (3) of the Act.
3In the event that this Order is enforced by a decree of the 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."
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, we hereby notify our employees that :
EVE WILL NOT discourage membership in Rubber and Plastic
Workers Union, Local 82, affiliated with Distillery, Rectifying
Wine and Allied Workers' International Union of America, AFL--
CIO, or any other labor organization of our employees by dis-
charging or refusing to reinstate any of our employees, or by dis-
criminating in any other manner in regard to their hire and tenure
of employment or any term or condition of employment.
WE WILL NOT agree to, continue in force, or give effect to illegal
union-security provisions in any collective-bargaining agreement
with Rubber and Plastic Workers Union, Local No. 82, affiliated
with Distillery, Rectifying Wine and Allied Workers' Interna-
tional Union of America, AFL-CIO.
. WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self- organiza-
tion, to form, join, or assist any labor organization, to bargain col-
lectively through representatives of their own choosing and to en-
gage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection and to refrain from
H. MUEHLSTEIN & CO., INC. 271
any or all of such activities 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.
WE WILL, offer to Emmett A. Hunter immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to any seniority or other rights and privileges pre-
viously elijoyed, and make him whole for any loss of pay suffered
as a result of the discrimination against him.
H. MUEHLSTEIN & CO., INC.,
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed and served the General Counsel of the National Labor
Relations Board, ' pursuant to Section 10 (b) of the Labor-Management Relations Act,
61 Stat. 136 (herein called the Act), issued a complaint dated August 16, 1956,
against H. Muehlstein & Co., Inc., herein called the Respondent or the Company and
Rubber and Plastic Workers Union, Local No. 82, affiliated with Distillery, Rectify-
ing Wine and Allied Workers' International Union of America, AFL-CIO, party to
the contract, herein called the Union. In substance the complaint alleges that
the Respondent by discharging an employee because he engaged in concerted activ-
ities and by reason of his union membership thereby violated Section 8 (a) (3)
and (1 ) of the Act. The complaint further alleges that the Respondent by executing
and maintaining in effect an agreement with the Union containing an invalid union-
security clause the Respondent thereby violated Section 8 (a) (1) and (3) of the
Act.2 The Respondent filed an answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice to all parties , a hearing was held before the Trial Examiner
in. Chicago, Illinois, on October 23, 1956. All the parties were represented at the
hearing and were afforded opportunity to be heard, to examine and cross -examine
witnesses , to introduce relevant evidence , to argue orally , and to file briefs. At the
conclusion of the case counsel for the Respondent moved to dismiss the complaint
for lack of proof, which motion was taken under advisement . For the reasons
appearing below, the motion is now denied . The General Counsel filed a brief
which has been considered by the Trial Examiner.
Upon the entire record in the case , and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE RESPONDENT 'S BUSINESS
The complaint alleges that the Respondent , a New York corporation , maintains
manufacturing plants in Chicago, New York, Akron , Ohio; Boston, Massachusetts,
Los Angeles , California , and Memphis , Tennessee , where it is engaged in the
manufacture of plastic articles and the reprocessing of thermoplastic materials.
'.The General Counsel and the staff attorneys appearing for him at the hearing are re-
ferred to as the General Counsel , and the National Labor Relations Board as the
Board:
2 The Trial Examiner, without objection , granted the General Counsel ' s motion to amend
his complaint to include a violation of Section 8 (a) (3) of the Act.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the year 1955 the Respondent's purchases of materials from outside the
State of Illinois amounted to more than $500,000, and sales of its products to out-of-
State customers were valued in excess of $50 ,000. In its answer, and at the hearing,
the Respondent did not contest the allegations concerning its operations generally
and conceded that it is engaged in commerce within the meaning of the Act. How-
ever , the Respondent pointed out that it maintained only offices , not manufacturing
plants, in cities other than Chicago and that while it does not manufacture finished
plastic articles it does reprocess plastic materials for other manufacturers . The Trial
Examiner finds that the Respondent is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Emmett A. Hunter
It is undisputed that Hunter was first employed by the Company on February 14,
1956, and was discharged on May 24, 1956. The parties also stipulated that the
Company and the Union executed a collective-bargaining agreement effective from
December 6, 1955, to December 5, 1957, which provides, inter alia, for grievance
and arbitration procedures, and that it is now, and at all times material has been,
in full force and effect.3
The issue concerning this phase of the case is whether Hunter was discharged for
filing a grievance under the contract, as asserted by the General Counsel, or whether
he was discharged for refusing to obey an order of his supervisor concerning work
assignments, as claimed by the Company.
Throughout the period in question, Alan Heath was, and is, plant manager; Ralph
Kruzic was Hunter's foreman, and Rufus Robinson the union steward.
Hunter stated he was first employed as a laborer or material handler on the dock
at $1.50 per hour. It is not clear how long Hunter remained on the dock, but in
any event, in line with company procedure, he bid upon and received a job as saw
operator in the grinding department, which paid $1.70 per hour. Hunter stayed on
this job only a few weeks when he was "bumped" by another man and returned to
the dock at the existing rate of $1.60 an hour. Hunter made no complaint to the
Company or the Union but reported for work on the dock. After being on the job
a few days Hunter met Heath in the plant and asked if he could not bump someone
or be placed in the sorting department and Heath promised to look into the matter
with Robinson. Hunter fixed the conversation as taking place from 2 to 4 weeks
prior to this discharge. As a result of this meeting Hunter was assigned to the
sorting department as material handler, at the same pay rate, and remained there
for about 2 weeks when he was terminated.
Robinson said that Hunter did not complain when he was bumped from the
saw operator job to the dock and that Hunter spoke to Heath and himself about
bumping a man or getting a job, at his present wage, in the sorting department.
Hunter worked in the sorting department under Kruzic and his duties consisted
of keeping the employees supplied with material and when the operation was com-
pleted to remove it to the scale and weigh it, and to keep the area clean. On the
afternoon of May 23, Kruzic told Hunter to work back and forth between the
grinding and sorting departments 4 (doing substantially the same type of work)
and Hunter complained that that was a two-man job and that Kruzic should have a
man in the grinding department and let him stay in the sorting department because
there was sufficient work for him to do. Kruzic told Hunter to do the work which
be did, as instructed, for the remainder of his shift. The same day, Hunter reported
to Robinson that he did not think he was being treated fairly and that he should
Look into the matter. Hunter could not recall Robinson's answer to.his complaint.
The following morning Hunter reported for work at 8 o'clock in the sorting depart-
ment and sometime before 10 o'clock Kruzic, told him to work between the depart-
ments , as he had previously, and Hunter said he did not believe that he was being
treated fairly and should not be required to work between the departments. Again,
8 The agreement also contains an automatic renewal clause for 1 year, subject to termi-
nation or modification by either party on 60-day written notice prior to its expiration.
s The departments are adjacent to each other and separated by a long machine. Kruzic
to foreman of both departments.
H. MUEHLSTEIN & CO., INC . 273
Kruzic told him to do the work, which he did. At the 10 o'clock coffee break,
Hunter explained the situation to Robinson and stated he wished to file a grievance
with him. Robinson then gave Hunter the grievance pad or form on which Hunter.
wrote out his grievance to the effect that he "has been repeated[ly] asked to handle
material in the Grinding Dept. while there was work to be done in his regular assigned
Dept." and, as reason for the foreman not adjusting the complaint he stated, "We
do not believe in a man being run from Dept. to Dept. unless his job is eliminated."
Hunter gave the grievance to Robinson and since he had failed to sign the form,
Robinson returned later to obtain his signature thereon. Hunter went to work after
the break and continued to work, in accordance with his instructions, until about
2:30 that afternoon when he left the plant to attend to personal business, having
previously been granted permission to leave by Kruzic.
Robinson testified that on the morning of May 24, Hunter complained that it was
not right to require him to work in two departments and Robinson told him to
do the work and if things got worse he would straighten it out. About half an hour
later, at the coffee break, Hunter again complained concerning his work assignment
and asked for the grievance pad, which Robinson gave to him. Hunter then wrote
out his grievance and presented the pad to Robinson, unsigned, after the coffee break.
Robinson, in turn, gave the grievance pad to Kruzic who, sometime later, signed the
grievance and returned the pad to him. Robinson was called to the office and on
his way there he met Heath and asked him if he had seen the grievance. Heath
replied that he had and declared: "Well, it looks like Hunter isn't satisfied. . . .
If he isn't satisfied the best thing for him to do is leave." Heath then left. Follow-
ing the conversation Robinson had Hunter sign the grievance and gave Kruzic a
copy thereof. Apparently, Robinson also gave a copy to Hunter. Robinson, who
had been steward for about 31/z years, stated this was the first written grievance that
had been filed with him.
The next morning, May 25, when Hunter reported for work his timecard was not
in the rack, so he went to the office to inquire about it and he was informed by
"Vince," personnel manager, that he had been discharged on the previous day, and
then handed him two paychecks. Hunter thereupon reported his discharge to
Robinson who stated he would call LeRoy Beth, the union representative, at his office.
While Hunter was waiting to hear from Robinson, at or near the scale, Heath
approached him and told him to leave the premises. When Hunter explained his
reason for being in the area Heath instructed him to wait in the washroom or
locker room, which he did. Later that morning Robinson, as Hunter recalled, told
him they were going to have a meeting and he would inform him of the outcome
thereof. Apparently, Hunter then left the plant. Hunter could not remember
whether Robinson instructed him to go to the union office, he conceded this was a
possibility, and he believed he did go to the office that day, Friday, or the following
Monday. He admitted that he did go to the Regional Office of the Board the same
day and file the instant charge. Hunter stated that at his first meeting with Beth,
and perhaps his assistant Edward O'Neal (the exact date is not stated), he was
told that if he would make an apology to the Company, the Union would try to
get him back to work. Hunter said he would apologize if he had caused any
disunity between the Union and the Company. Hunter stated there was some men-
tion of his having sworn at Heath, but he denied that he had ever done so. Heath
made several visits to the union office but has never been reinstated to his job.
Robinson said Hunter informed him his timecard was missing and, after going
to the office, he came back and stated he had been discharged. Robinson said he
would telephone Beth and for Hunter to wait until he had completed the call. About
an hour later, Robinson, after talking to Beth, told Hunter that Beth would call
Heath and have him put back to work. Hunter then"changed from street to working
clothes and went into his department. About that time Heath asked Robinson if
he had talked to Beth and when he answered he had, Heath told Robinson to call
him again. Robinson thereupon called Beth who informed him that Heath said
Hunter had cursed him and he refused his (Beth's) request to put him back to work.
Robinson reported this conversation to Hunter and suggested that he see Beth. At
Hunter's request Robinson got Beth on the telephone and then left. He did not
see Hunter again that day.
Heath testified that he directed the discharge of Hunter for the sole reason that he
refused to obey the orders of Foreman Kruzic on two occasions. This matter was
initially brought to Heath's attention on May 23, when Kruzic advised him that
Hunter had failed to perform the job assigned him in that he refused to clean up
after the woman sorter. Heath told Kruzic that Hunter had to do the work or be
discharged. About 11 o'clock the next morning Kruzic told Heath that Hunter
45055.1-58--vol. 118-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"was filing a grievance with the steward " and inquired as to "what to do with
the grievance that he was supposed to sign ." Heath asked the nature of the grievance
and Kruzic replied-that Hunter had again refused to work "in the department behind
the woman ." Heath did not state what , if any, instructions or suggestions he gave
to Kruzic upon receiving the foregoing information . About 10 minutes after this
conversation Kruzic returned and showed Heath the above -mentioned written griev-
ance. Around 3 o 'clock that day Heath decided to inform Hunter he had been
discharged but he was unable to do so because Kruzic had granted Hunter per-
mission to leave the plant at 2:30 that afternoon . Heath directed that Hunter's
timecard be removed from the rack in order to prevent his starting work the next day.
The following morning Heath met Hunter on the dock near the scale and told him
he had been discharged because of his refusal to perform work assignments on two
occasions . Heath said Hunter called him an s. o. b. and. Heath replied that the use
of such language would be cause for dismissal , in addition to the reasons already
stated . Heath called Beth and asked if he was coming to the plant to see Hunter
and Beth said to have Hunter come to the union office. Heath gave the message to
Hunter who then left the plant . Heath claimed that Benjamin Kelly was present,
about 3 or 4 feet distant , while he and Hunter were talking.
Kruzic, who quit his job in September 1956, said that Hunter was working in
the sorting department and on May 23 he told him to work in the grinding depart-
ment. Hunter said something to the effect that the grinding department was a higher
paying department and he believed he should be paid more money for working there.
Kruzic could not recall what, if any , reply he made to Hunter , but he admitted that
Hunter performed the duties assigned to him that day. On May 24 Kruzic again
instructed Hunter to work in the grinding department on what he believed was a
cleanup job , but he could not remember whether the assignment was given in the
morning, nor could he remember what he told Hunter, or if Hunter said anything at all
to him. When asked by the General Counsel if Hunter did the work he was directed
to do on this occasion Kruzic answered , "As far as I can remember , yes, but I
couldn't say for sure."
The General Counsel then produced a written statement which Kruzic stated was
prepared by a field examiner of the Board on the basis of an interview with him within
1 or 2 weeks after the occurrence of above events and that he signed the statement,
which the Trial Examiner received in evidence . After reading his statement at the
hearing, Kruzic testified that he still could not remember whether Hunter performed
his work assignment on May 24. In this respect the statement reads:
I assigned him again to work in the grinding department , and again he com-
plained that he didn't want to do it; but nevertheless he did do the work I assigned
to him.
Again, when questioned if he reported to Heath that Hunter did not do the work
assigned on the above dates Kruzic responded , "I don't believe I can recall offhand.
I don't know if it was-I can't recall. I can't recall for sure." When further ques-
tioned as to whether Heath told him that Hunter was to be fired if he refused to per-
form the work on the second day Kruzic said , "No, I don't remember that." Kruzic
admitted that on May 24, he could not recall whether in the morning or afternoon,
Hunter or Robinson presented a written grievance to him ( the first he had ever re-
ceived ) which he gave to Heath , who read it and instructed him to sign it. Kruzic
then returned at least one copy to Robinson.
In performing the duties assigned to Hunter on the dates in question , Kruzic could
not state whether he was working exclusively in the grinding department or the sort-
ing department, in fact "its hard to say exactly where he was working." He con-
cluded by stating Hunter was assigned "into the grinding department area to do work
actually connected with the sorting department ." Kruzic was not certain when he
first learned of Hunter 's discharge , it was either the afternoon of May 24 or the
following morning, and he did not know when Hunter's timecard was removed from
the rack.
Kelly, employed as scale operator , observed Heath and Hunter talking on the
morning of May 25, but he did not overhear their conversation. He further stated
that on the following Tuesday, Heath, Kruzic, Beth, Hunter, employee Charles
Guise, and himself held a meeting at the plant office for the purpose of discussing
Hunter's discharge . In the course of the meeting Guise asked Heath the reason for
Hunter's dismissal and he replied that Hunter used abusive language and was
complaining.
Counsel stipulated that if Guise was called as a witness he would testify to the
same effect as Kelly concerning his conversation with Heath at the above meeting.
H. MUEHLSTEIN & CO., INC. 275
Concluding Findings
It is undisputed , and the Trial Examiner finds, that on May 23 Hunter was instructed
by Kruzic to perform certain tasks in the grinding department . It is also clear that
although Hunter complained to Kruzic regarding the fairness of the assignment, be-
cause it required him to work in two departments , nevertheless he carried out his
work instructions and these facts are substantiated by Kruzic's testimony. The trial
Examiner further finds that on May 24, sometime prior to 10 o'clock, Kruzic directed
Hunter to work in the same manner as the day previous and, again , he complained but
performed the tasks as directed . Kruzic did not challenge Hunter's assertion con-
cerning job performance and, indeed , his best recollection , although not with absolute
certainty , was that Hunter did do the work as directed . Moreover , in his signed state-
ment given to a representative of the Board shortly after the act occurred, which
statement was neither questioned nor repudiated at the hearing, Kruzic unqualifiedly
declared that Hunter performed the work assigned to him on that date. The Trial
Examiner so finds.
The Respondent concedes that the sole reason for Hunter's discharge was his re-
fusal to carry out his work assignments on the above dates. In support of this
contention Heath testified that Kruzic reported such conduct on the part of Hunter on
May 23 and he thereupon instructed Kruzic that Hunter must do the work or be dis-
charged. Accordingly, the following morning when Kruzic advised Heath that
Hunter was filing a grievance on his job assignment , and that he had refused to per-
form the work, Heath, apparently decided to discharge him. However, Heath took
no steps whatever toward having Hunter dismissed at that time and it was not until
later in the afternoon, after the grievance had been filed, that he attempted to locate
Hunter in order to advise him of his dismissal. As Hunter was on authorized leave
that afternoon the discharge was effectuated the next morning.
Heath, of course, had no personal knowledge as to whether or not Hunter per-
formed his work and specifically stated that he relied upon reports from Kruzic,
Hunter's immediate supervisor . Kruzic's testimony not only fails to corroborate
Heath's assertion, but, on the contrary, squarely contradicts and repudiates his
testimony that Kruzic advised him Hunter had refused to perform the work as-
signed to him. It is simply inconceivable that Kruzic, knowing Hunter had carried
out his orders, would deliberately and falsely inform Heath that he had done other-
wise. Although Kruzic's testimony may be vague in certain respects, such as the
time of the filing of the grievance, it is unmistakably clear on the foregoing crucial
points or phases. The Trial Examiner from close observation of Kruzic is con-
vinced that he would not resort to such tactics and, therefore, rejects Heath's version
of the occurrences, so, on the basis of the credible testimony of Kruzic and Hunter,
finds that Hunter fully carried out his work assignments and that Kruzic did not
advise Heath to the contrary.
It is undisputed that Hunter filed a grievance with Robinson shortly after the 10
o'clock coffee break on May 24. The Trial Examiner further finds , on the basis of
the credible and undenied testimony of Robinson , that Robinson presented the
grievance to Kruzic and shortly thereafter while on his way to the office , pursuant
to Heath's call, he met Heath , who remarked : "Well, it looks like Hunter isn't satis-
fied. . . . If he isn 't satisfied the best thing for him to do is leave." In view of
the foregoing findings the Trial Examiner has no difficulty in reaching the conclusion
that Hunter was dismissed because he filed the above-mentioned grievance and the
Respondent's contention that its action was prompted by refusals to obey instruc-
tions is nothing more than a pretext to eliminate Hunter from its employ because
he protested the manner in which he was being treated . The privilege of an em-
ployee to present a grievance to his employer is an inherent right guaranteed him
under Section 7 of the Act and in exercising that privilege Hunter was plainly engag-
ing in a form of protected activities within the meaning thereof . By discharging
Hunter for filing a grievance , and certainly there was merit to his grievance, the
Trial Examiner concludes and finds that the Respondent thereby violated Section a
(a) (3) and (1) of the Act. (N. L. R. B. v. Hymie Schwartz, 146 F. 2d 773 (C. A.
5); N. L. R. B. v. Smith Victory Corporation, 190 F. 2d 56 (C. A. 2); N. L. R. B. v.
Pacific Mills, 207 F. 2d 905 (C. A. 4); Salt River Valley Water Users' Association v.
'N. L. R. B., 206 F. 2d 325, 328 (C. A. 9); N. L. R. B. v. East Texas Steel Castings
Co., Inc., 211 F. 2d 813, 819-820 (C. A. 5); Nu-Car Carriers, Inc., 88 NLRB 75,
enforced 189 F. 2d 756 (C. A. 3).)
Heath related that on the morning of May 25 , he advised Hunter of his discharge,
whereupon Hunter cursed him. Hunter denied the accusation , The alleged cursing
is not advanced as a reason for Hunter 's discharge, for he had already been ter-
minated when the remark is supposed to have been made. Seemingly , Heath sought
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to create the impression that Kelly was present when the remark was uttered, but
Kelly merely stated that he saw the two men talking and did not hear any of their
conversation. Having found Heath to be unreliable and untruthful in other im-
portant and closely related matters concerning Hunter's discharge, the Trial Examiner,
in the absence of any corroboration, likewise rejects his testimony in this instance
and accepts and credits Hunter's denial that he cursed Heath. The Trial Examiner
entertains no doubt that when Beth called Heath in regard to the discharge, he,
Heath, complained Hunter had cursed him and, according to Robinson, the Union
seemingly did not question his accusation, although Hunter denied the cursing to
Beth, and for that reason did not seriously urge his reinstatement or complete the
processing of his grievance. The Trial Examiner attaches no significance to Heath's
complaint to Beth and considers this accusation in the same category as his claim
that Kruzic reported Hunter had refused to obey work instructions.
B. The legality of the union-shop clause in the agreement
As appears above the parties stipulated that the Company and the Union executed
a collective-bargaining agreement effective from December 6, 1955, to December 5,
1957, which was in force as of the date of the hearing. The agreement provides:
Article II
Membership
2. All employees subject to the terms and provisions of this agreement shall
be required to pay the initiation fee, periodic dues and assessments established
by the Union as a condition of good standing membership.
3. The Union shall be the sole judge of the good standing of its members and
any employee covered by this agreement who shall hereafter cease to be a
member in good standing shall be immediately discharged upon written notice
from the Union to the Employer.
The General Counsel contends that the foregoing provisions are violative of Section
8 (a) (1) and (3) of the Act.
It is well established that an agreement providing for the payment of union assess-
ments, in addition to initiation fees and dues, goes beyond the permissive scope of
Section 8 (a) (3) and is therefore invalid. (Convair, a Division of General Dynamics
Corp., 111 NLRB 1055, 1057.) Again, in delegating to the Union final authority
in the determination of whether an employee is a member in "good standing," and
that the Union could effectuate his dismissal when he ceased to maintain that status
is, likewise, in violation of the Act. (Jandel Furs, 100 NLRB 1390; Pacific Inter-
mountain Express Company, 107 NLRB 837, 844.) By retaining the provisions in
the contract the Company thereby violated Section 8 (a) (1) of the Act. However,
as the parties stipulated that neither the Union nor the Company ever attempted to
enforce the unlawful provisions, the Trial Examiner finds that under the circum-
stances the Company did not engage in conduct in violation of Section 8 (a) (3)
of the Act. (Jandel and Convair cases, supra.)
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, occurring in connection with
the operations of the Respondent 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
Having found that the Respondent engaged in certain unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take the
following affirmative action designed to effectuate the policies of the Act:' (1) Offer
to Emmett A. Hunter immediate and full reinstatement to his former or substantially
equivalent position,5 without prejudice to his seniority or other rights and privileges;
(2) make whole Emmett A. Hunter for any loss of pay he may have suffered by
reason of the Respondent's unlawful discharge, by payment to him of a sum of
money equal to the amount he would normally have earned as wages, from the
date of discharge to the date of the Respondent's offer of reinstatement, less his net
The Chase National Sank of the City of New York, San Juan, Puerto Rico, Branch,
65) NLRB G27.
SEARS ROEBUCK AND CO. 277
earnings during said period; 6 (3) the Respondent shall, upon request, make
available to the Board payroll and other records to facilitate the checking of the
amount of back pay, which shall be computed in accordance with the Board's
customary formula; 7 and (4) that the Respondent be ordered to cease and desist
from in any manner interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed by the Act.
Having found that the Respondent violated the Act by maintaining in existence
illegal union-security provisions, it will be recommended that the Respondent cease
and desist from agreeing to, continuing in force, or giving effect to union-security
provisions not authorized by Section 8 (a) (3) of the Act.
On 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. The Respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
2. The Union is a labor organization as defined in Section 2 (5) of the Act.
3. By discharging Emmett A. Hunter the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1)
of the Act.
4. By maintaining in existence an agreement containing illegal union-security
provisions the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
7. The Respondent by maintaining in existence the above-mentioned union-
security provisions did not thereby violate Section 8 (a) (3) of the Act, as alleged
in the amended complaint.
[Recommendations omitted from publication.]
9 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation V. N. L. R. B.,
311 U. S. 7.
4 F. TV. Woolworth Company, 90 NLRB 289.
Sears Roebuck and Co. and Teamsters, Chauffeurs , Warehouse-
men & Helpers Local Union 390, affiliate of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America , AFL-CIO, Petitioner. Case No. 12-RC-36.
June 21, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Herbert N. Watterson, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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 a three-member panel [Chairman Leedom and Members
Murdock and Rodgers].
118 NLRB No. 31.