International Hod Carriers, Building & Common Laborers Union of America

National Labor Relations Board - Board Decisions

May 18, 1951

94 N.L.R.B. 698 (N.L.R.B. 1951)

-698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period.18 Loss of pay shall be computed on the basis of each separate calendar
quarter or portion thereof during the period from the Respondent's discrimi-
natory action to the date of a proper offer of reinstatement. The quarterly
periods, herein called quarters, shall begin with the first day of January, April,
July, and October. Loss of pay shall be determined by deducting from a sum
equal to that which each employee would normally have earned for each such
quarter or portion thereof, her net earnings, if any, in any other employment
during that period. Earnings in one particular quarter shall have no effect upon
the back-pay liability for any other quarter.19 It will also be recommended that
the Respondent, upon reasonable request, make available to the Board and its
agents all payroll and other records pertinent to an analysis of the amounts due
as back pay.
The unfair labor practices found above reveal on the part of the Respondent
such a fundamental antipathy to the objectives of the Act as to justify an in-
ference that the commission of other unfair labor practices may be anticipated in
the future, and it will be recommended, therefore, 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.
Upon the basis of the foregoing findings of fact and upon the' entire record in
the ease, the undersigned makes the following :
CONCLUSIONS OF LAW
1. The American Federation of Labor is a labor organization admitting to
membership employees of the Respondent.
2. By discriminating in regard to the hire and tenure of employment of Stella
Thomas and Macel Sutherlin, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination and 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.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
is Crossett Lumber Company , S NLRB 440.
19 F. W. Woolworth Company, 90 NLRB 289.
GEORGE W. REED and ERNEST SYDNEY CHARLTON
INTERNATIONAL HOD CARRIERS , BUILDING & COMMON LABORERS UNION
OF AMERICA , LOCAL No. 36, AFL and ERNEST SYDNEY CHARLTON.
Cases Nos. 20-CA-268 and 0O-CB-80. May 18, 1951
Decision and Order
On January 29, 1951, Trial Examiner Peter F. Ward issued his
Intermediate Report in the above-entitled proceedings, finding that
Respondent Reed, herein referred to as the Employer, and Respondent
94 NLRB No. 109.
GEORGE W. REED 699
Local No. 36, herein referred to as the Union, had engaged in and
were engaging in certain unfair labor practices, and recommending
that they cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the Employer and the Union filed exceptions to
the Intermediate Report and supporting briefs.
The Board 1 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, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, recom-
mendations, and conclusions, to the extent that they are consistent
with our conclusions and order, hereinafter set forth.
1. We agree with the Trial Examiner that the Employer's opera-
tions are subject to the Board's jurisdiction. In so doing, however, we
rely entirely upon the jurisdictional facts, fully set forth in the Inter-
mediate Report, showing that the Employer, in 1948 and 1949, fur-
nished services valued at more than $50,000 per annum necessary to
the operation of (1) a public utility, (2) an instrumentality of com-
merce, and (3) an enterprise engaged in producing or handling goods,
destined for out-of-State shipment, valued at more than $25,000 per
annum,
Upon the basis of these facts we find, in accordance with the recently
adopted jurisdictional policy of the Board,2 that the Employer is
engaged in commerce within the meaning of the Act and also that it
will effectuate the policies of the Act to assert jurisdiction here.3
2. With respect to the termination of Charlton's employment, it is
clear from the record that Charlton was discharged by the Employer
at the insistence of the Union because he did not have "clearance" from
the Union. There was no union-security agreement in existence which
might have afforded the Employer and the Union a valid basis for
the discharge. We find, therefore, that the Employer, by discharg-
ing Charlton, has engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) of the Act; 4 and we find further that the
Union, by causing the Employer to discharge Charlton, has engaged
1 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 Herzog and Members Reynolds and Murdock].
s Hollow Tree Lumber Company, 91 NLRB 635.
i See Edward Besch & Sons, 92 NLRB 520; William W. Kimmins & Sons, 92 NLRB 98;
and White Construction and Engineering Company, Inc., 92 NLRB 53.
4 The Employer contends that, as Charlton still retained his membership in the Union,
his discharge did not encourage or discourage membership in the Union, and that, therefore,
there could be no violation of Section 8 (a) (3) of the Act. We reject this argument for
reasons fully set forth in American Pipe and Steel Corporation, 93 NLRB 54. Although
dissenting in that case, Member Murdock deems himself bound by the majority decision
therein.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in unfair labor practices within the meaning of Section 8 (b) (1) (A)
and Section 8 (b) (2) of the Act.'
The Remedy
We have found that the Employer discriminated against Charlton
in violation of Section 8 (a) (1) and (3) of the Act, and that the
Union caused the Employer to discriminate against Charlton in viola-
tion of Section 8 (b) (1) . (A) ' and Section 8 (b) (2) of the Act.
'Therefore, as the Trial Examiner recommended, we shall order the
Employer to offer Charlton immediate reinstatement to his former or
substantially equivalent position without prejudice to his seniority or
other rights and privileges.
As we have found that both Respondents are responsible for the
discrimination suffered by Charlton, we shall order them jointly and
severally to make Charlton whole for the loss of pay that he may have
suffered by reason of the -discrimination against him. It would, how-
ever, 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 Employer should
fail promptly to offer reinstatement to Charlton. We shall therefore
provide that the Union may terminate its liability for further ac-
crual of back pay to Charlton by notifying the Employer, in writing,
that the Union has no objection to his reinstatement. 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 Employer for all
back pay to Charlton that may accrue until the Employer complies
with our order to offer him reinstatement.
In all other respects we adopt the recommendations made by the
Trial Examiner in-the section of the Intermediate Report entitled
"The remedy."
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
1. The Respondent George W. Reeds his agents, successors, and
assigns, shall:
a. Cease and desist from:
5 American Pepe and Steel Corporation , supra; Peerless Quarries, Inc, 92 NLRB 1194;
and Clara-Val Packing Company, 87 NLRB 703 . See also Sterling Furniture Company,
et al , 94 NLRB 32
'Hereinafter referred to as the Employer.
GEORGE W. REED 701
(1) Encouraging membership in International Hod Carriers,
Building & Common Laborers Union, Local No. 36, AFL,7 or in any
other labor organization of his employees, by discharging and re-'
fusing to reinstate any of his employees for failing to obtain clearance
from the Union or by discriminating in any manner in regard to their
hire or tenure of employment or any term or condition of their em-
ployment, 'except to the extent permitted by an agreement executed
in accordance with Section 8 (a) (3) of the Act.
(2) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights may be affected by an
agreement executed in accordance with Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Offer to Ernest Sydney Charlton immediate and full reinstate-
ment to his former or a substantially equivalent position without prej-
udice to his seniority or other rights and privileges, and jointly and
severally with the Union make him whole in the manner set forth in
the section entitled "The Remedy," for any loss of pay suffered by
reason of the discrimination against him.
(2) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary for a determination of the
amount of back pay due and the right of reinstatement under the
terms of this Order.
(3) Post in conspicuous places at his main office in San Francisco,.
California, and at the Stonestown project, and at all other places
where notices to employees are customarily posted, copies of the notice
attached hereto and marked "Appendix A." 8 Copies of said notice, to
be furnished by the Regional Director for the Twentieth Region, shall,
after being duly signed by the Employer or his representative, be
posted by him immediately upon receipt thereof and be maintained
by him for at least sixty (60) consecutive days thereafter. Reasonable
steps shall be taken by the Employer to insure that such notices are
not altered, defaced, or covered by any other material.
(4) Notify the Regional Director for the Twentieth Region, in
writing, within ten (10) days from the date of this Order, what steps
he has taken to comply herewith.
2. The Respondent International Hod Carriers, Building & Com-
mon Laborers Union, Local No. 36, AFL, its officers, representatives,
agents, successors, and assigns, shall :
7 Hereinafter referred to as the Union
8 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order ," the words "A Decree of
the United States Court of Appeals Enforcing "
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. Cease and desist from :
(1) Causing or attempting to cause the Employer, his agents, suc-
cessors, and assigns, to discharge or otherwise discriminate against
any of its employees because they failed to obtain clearance from the
Union, except to the extent permitted by an agreement executed in
accordance with Section 8 (a) (3) of the Act.
(2) In any other manner causing or attempting to cause the Em-
ployer, his agents, successors, and assigns, to discriminate against his
employees in violation of Section 8 (a) (3) of the Act.
(3) Restraining or coercing employees of the Employer, his :,uc-
cessors or assigns, in the exercise of the rights guaranteed in Section
7 of the Act.
(4) Causing or attempting to cause any other employer engaged in
commerce within the meaning of the Act to discriminate against
Ernest Sydney Charlton for failing to obtain clearance from the
Union, except to the extent permitted by an agreement executed in
accordance with Section 8 (a) (3) of the Act.
(5) In any other manner restraining or coercing Ernest Sydney
Charlton, as an employee or prospective employee of any other em-
ployer engaged in commerce within the meaning of the Act, in the
exercise of his right to refrain from any or all concerted activities
within the meaning of Section 7 of the Act, except to the extent that
such right may°be affected by an agreement executed in accordance
with Section 8 (a) (3) of the Act.
b. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Jointly and severally with the Employer make Ernest Sydney
Charlton whole, in the manner set forth in the section entitled "The
Remedy," for any loss of pay he may have suffered by reason of the
discrimination against him.
(2) Post immediately in conspicuous places at its business office,
and at all other places where notices to its members are customarily.
posted, copies of the notice attached hereto and marked "Appendix
B." 9 Copies of said notice, to be furnished by the Regional Director
for the Twentieth Region, shall, after being duly signed by an official
representative of the Union, be posted by it immediately upon receipt
thereof and be maintained for a period of at least sixty (60) consecu-
tive days thereafter. Reasonable steps shall be taken by the Union
to insure that such notices are not altered, defaced, or covered by any
other material.
s In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order ," the words "A Decree of
the United States Court of Appeals Enforcing."
GEORGE W. REED 703
(3) Notify the Employer, in writing, and furnish a copy to Ernest
Sydney Charlton, that the Union has no objection to Charlton's em-
ployment by the Employer.
(4) Notify the Regional Director for the Twentieth Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
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 encourage membership in INTERNATIONAL HOD
CARRIERS, BUILDING & COMMON LABORERS UNION OF AMERICA,
LOCAL No. 36, AFL, or in any other labor organization of our
employees, by discharging and refusing to reinstate any of our
employees for failing to obtain clearance from LOCAL No. 36,
or by discriminating against our employees in any other manner
in regard to their hire or tenure of employment or any term or
condition of their employment, except to the extent permitted
by an agreement executed in accordance with Section 8 (a) (3)
of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed
them by Section 7 of the Act, except to the extent that such rights
may be affected by an agreement executed in accordance with
Section 8 (a) (3) of the Act.
WE WILL offer to Ernest Sydney Charlton immediate and full
reinstatement to his former or substantially equivalent position
without prejudice to, any seniority, or other rights and privileges
previously enjoyed, and make him Whole for any loss of pay
suffered as a result of the discrimination against him.
All of our employees are free to become, remain, or to refrain from
becoming or remaining, members of LOCAL No. 36 or any other
,labor organization, except to the extent that this right may be affected
by an agreement executed in accordance with Section 8 (a) (3) of
the Act.
GEORGE W. REED,
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.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS, BUILDING
AND COMMON LABORERS UNION OF AMERICA, LOCAL No. 36, AFL,
AND TO ALL EMPLOYEES OF GEORGE W. REED
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 or attempt to cause GEORGE W. REED, his
agents, successors, and assigns, to discharge or otherwise discrim-
inate against any of his employees because they failed to obtain
clearance from this union, except to the extent permitted by an
agreement executed in accordance with Section 8 (a) (3) of the
Act.
WE WILL NOT in any other manner cause or attempt to cause
GEORGE W. REED, his agents, successors, and assigns, to discrimi-
nate against his employees in violation of Section 8 (a) (3) of
the Act.
WE WILL NOT restrain or coerce employees of GEORGE W. REED,
his agents, successors, and assigns, in the exercise of the rights
guaranteed them in Section 7 of the Act.
WE WILL make Ernest Sydney Charlton whole for any loss of
pay he may have suffered because of the discrimination against,
him.
INTERNATIONAL HOD CARRIERS, BUILDING AND
COMMON LABORERS UNION OF AMERICA, Lo-
CAL No. 36, AFL,
Union.
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
Benjaniin B. Law, Esq, for the General Counsel.
Thomas E Stanton, Jr, Esq., of San Francisco, Calif., for Respondent Reed.
Waston A. Garoni, Esq, of San Francisco, Calif., for Respondent Union.
Gordon W Mallati att, Esq , of San Francisco, Calif., for Ernest Sydney Charl-
ton, an individual.
STATEMENT OF THE CASE
Upon separate charges duly filed on July 6, 1949, by Ernest Sydney Charlton,
herein called Charlton or the Claimant, the General Counsel' by the Regional
' The General Counsel and his representative at the hearing are herein called General
Counsel; the National Labor Relations Board is herein called the Board
GEORGE W. REED 705
Director for the Twentieth Region (San Francisco, California), issued a com-
plaint dated May 12, 1950,3 against George W. Reed, herein called Respondent
Reed, or Reed, and against International Hod Carriers, Building & Common
Laborers Union of America, Local No 36, AFL, herein called Respondent Union,
the Union, or Local No 36, alleging that Respondent Reed had engaged 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 the
Respondent Union had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (b) (.1) (A) and 8 (b) (2),
and Section 2 (6) and (7) of the Act
On July 7, 1949, the Regional Director caused a copy of the original charge to
be served on both Respondents ; and on May •12, 1950, caused the order con-
solidating cases, notice of consolidated hearing, complaint, and charges to be
served on both Respondents and the charging party, Charlton
With respect to the unfair labor practices, the complaint alleged in substance
that-(1) During May 1949 Respondent Reed employed Charlton to work for him
as a hod carrier on an apartment housing project known as Stonestown, on
which project Respondent Reed was a subcontractor responsible for certain
masonry work ; (2) on or about June 14, 1949, Respondent Union, by its officers,
agents, and 'employees demanded that Respondent Reed discharge said Charlton
because he was not in good standing as a member of Respondent Union in that
said Charlton had failed to obtain clearance from Respondent Union before
reporting to work for Reed ; (3) on or about June 14, 1949, Respondent Reed,
by his agents, otheers, and employees, discharged the aforesaid Charlton pur-
suant to the request and demand of Respondent Union for the reason that
Respondent Reed had been advised that said Charlton was not in good standing
as a member of Respondent Union in that he failed to obtain clearance from
Respondent Union before reporting to work for Reed ; and (4) that by the acts
described above Respondent Reed and Respondent Union, and each of said
Respondents, restrained and coerced Charlton in the exercise of the rights guaran-
teed in Section 7 of the Act.
On June 28, 1950, Respondent Union filed its answer to the complaint wherein
it denied any knowledge that Reed was engaged in interstate commerce; and
generally denied all allegations of the complaint.
On July 3, 1950, Respondent Reed filed his answer to the complaint in which he
admitted that in the course and conduct of his business at all times material
herein he performed work as a masonry contractor in construction of projects
in the State of California to which material was sold, shipped, delivered, and
transported in interstate commerce from points outside the State of California.
He alleged, however, that he was without knowledge as to the "amounts" so
sold, shipped, delivered, and transported to such projects, and does not know
wbether said amounts "are to be deemed 'substantial'" with relation to the total
amounts of materials sold, shipped, delivered, and transported to said projects, 3
and that, in any event, it would not effectuate the policies of the Act for the
Board to assert jurisdiction herein.
Pursuant to due notice, a hearing was held at San Francisco, California, on
July 5, 6, and 7, 1950, before the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. The General Counsel, both Respondents, and
2 On this same day, the said Regional Director , pursuant to Section 203 33 of the Board's
Rifles and Regulations, issued an order consolidating the above-numbered cases for hearing
3 Reed ' s version of the reason for Charlton ' s termination as an employee, as set forth
in his answer , is quoted below
953841-52-i of 94 46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Claimant Charlton were represented by counsel. All' participated in the hear-
ing and were afforded full opportunity to be heard , to examine and cross -examine
witnesses, and to introduce evidence bearing upon the issues. At the close of
the hearing the parties were afforded an opportunity to and did argue orally,
upon the record, before the undersigned. The parties were further advised that
they might file briefs and/or proposed findings of fact and conclusions of law
with the undersigned. Briefs were filed by the General Counsel and by counsel
for both Respondents and have been duly considered by the undersigned.
After the taking of evidence, the undersigned granted the General Counsel's
motion to conform the pleadings to the proof in formal matters, and reserved
ruling on Respondents' motion to dismiss the complaint and to strike General
Counsel's Exhibit No. 3 i The motion to dismiss the complaint is disposed
of in accordance with the findings of fact, conclusions of law, and
recommendations made below.
Upon the entire record in the case and from his observation of witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. COMMERCE; THE BUSINESS OF RESPONDENT REED
Respondent Reed is and, for at least 9 years past, has been engaged in business
as a masonry contractor in the San Francisco Bay Area of northern California.
During the 9-year period above referred to Reed has been a member of Masons
and Builders Association of California, Inc., an association composed of some
40 employers engaged in masonry, contracting, and related construction activities
in northern California.
The association has, during several years past, had collective bargaining con-
tracts with Respondent Union, covering hod carriers employed by members of
such association, including Respondent Reed. The said contracts have been
on a multiple basis through the association.° Reed testified and the record
discloses that, with minor exceptions, all of his contracts for masonry work
are subcontracts made with general contractors. At the time of the hearing
herein Reed employed 15 bricklayers and 10 liod carriers, which members were,
according to Reed's testimony, below his general average The materials
ordinarily used by Reed consist mostly of brick, mortar (lime and cement), some
tile, terra cotta, glazed tile units, small tools, mortar mixers, and wheelbarrows.
At the time of the termination of Charlton on June 14, 1949, by Reed, the
latter was engaged in completing a subcontract valued at $110,239 for building
boiler room chimneys, garages, flower boxes, and trimmings at the Stonestown
project,' work on which contract had been started in 1948, when some 70 percent
of the work required to be done by Reed had been completed Since Reed's
performance of his subcontract on the Stonestown project began in 1948, the
undersigned deems it advisable to consider in some detail Reed's activities in
1948 as well as in 1949.
' Counsel for Charlton did not participate in the examination of witnesses, but at all
times counseled with the General Counsel
5 The undersigned makes no finding based upon this exhibit , but retains it in the record
merely as background material
'The above findings are based upon a stipulation of the parties The stipulation as
first agreed to recited that contracts included the period of June 14, 1949 (the date of
Charlton ' s termination ), but was later modified by striking the words "including the
period of June 14, 1949 ," from such stipulation
z This project is described and referred to in greater detail below
GEORGE W. REED
Reed's 1948 Activities
707
Reed did not recall the gross value of his operations for 1948 in terms of
dollars. He did, however, refer to certain building projects upon which he
had subcontracts for masonry work, as follows :
The Pacific Telephone and Telegraph Company,' San Francisco, California,
for masonry work on a telephone exchange building performed by Reed at the
agreed price of $148,000. The construction work done under Reed's contract took
approximately 6 months.
The Pacific Gas and Electric Company,' San Francisco, California, masonry
work performed on a substation, an operation lasting about 3 months. Contract
price $60,000.10
David Bohannon Company, Inc., owner and general contractor of a project
consisting of some 300 to 400 small 1-family dwellings at San Lorenzo, California.
Under 2 or 3 "small contracts" Reed erected "three or four hundred" fireplaces
and chimneys of "the aggregate value of" around twenty-five or' thirty thousand
dollars.
Reed testified that he had many jobs around $1,000 up to $5,000 during 1948,
but did not recall them, ass "taking (sic) back two years it's hard to put your
finger on them."
Reed's 1949 Activities
Reed's masonry subcontracts for 1949 for both commercial and residential
projects grossed $481,869.25.
One of the major projects was The Pacific Telephone and Telegraph Company,
for whom Reed had a subcontract for masonry work on a telephone exchange in
1948, let a further construction contract in 1949. Reed's subcontract for the
1949 job covered masonry and related work on a new 9- to 10-story building,
used in part as an office building and in part as a telephone exchange. The value
of Reed's 1949 contract was $150,000.11
- Standard Oil Company of California u about midyear 1948 began the construc-
tion of a 22-story office building adjacent to the "present home office building
at 225 Bush Street," in San Francisco, California ; the approximate cost of the
entire addition or building is $6,000,000; and was approximately 90 percent
complete in July 1950. The new building is basically a steel -structure with
concrete walls, floors, and with a terra cotta indented fairway on the outside.
Slightly under $900,000 worth of steel went into the structure, none of which
steel was fabricated in the State of California, but was fabricated in "the east,"
that is to say, "east of the Mississippi." 13
8 Heretofore found by the Board to be engaged in commerce within the meaning of the
Act. 74 NLRB 536
Heretofore found by the Board to be engaged in commerce under the Act. 87 NLRB 257.
to Reed testified the amount may have been as high as $63,000, "some place in there."
11 The parties stipulated that The Pacific Telephone and Telegraph Company and The
Pacific Gas and Electric Company are public utilities with their main offices in San Fran-
cisco, California
11 Heretofore found to be engaged in commerce within the meaning of the Act. 79
NLRB 1066
"The record discloses without dispute that six Otis elevators installed in this new
addition were manufactured in New York and New Jersey. The price or value of such
elevators was not disclosed on the record.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reed's contract with The Standard Oil Company of California covered masonry
and related work and provided for the payment to Reed of approximately
$200,000."
At the time Reed terminated Charlton, on June 14, 1949, the former was
completing a subcontract valued at $110,239, which covered the building brick
boiler room chimneys, garages, flower boxes, and trimming at the Stonestown
project "
The record discloses that J. H. Pomeroy and Co. sold approximately $300,000
worth of lumber to Stoneson ; that the lumber was shipped to San Francisco
from northern California and southern Oregon, that some of the timber cut in
California was processed in Oregon mills; and that 60 percent of the total lumber
so sold and delivered by Pomeroy Company came from Oregon and the balance,
or 40 percent, came from northern California. Thus $180,000 worth of the lumber
was shipped in interstate commerce"
The record further discloses that L. J. Kruse Company of Oakland, California,
contracted with Stoneson to furnish heating and plumbing equipment consisting
of sanitary facilities, boilers, heaters, and labor of installation of such equipment
for the sum of approximately $780,000. Edward H Kruse, trustee for said Kruse
Company, testified in substance that :
Total contract price was approximately $780,000:14
Labor costs 20 to 35 percent of total 35 percent of $780,000________ $273,000.
Bal-Cost of material__________________________________________ 507, 000
50 percent of material delivered by June 14, 1949_________________ 253, 500
60 to 70 percent of material came from without the State. 60
percent thereof amounts to___________________________________ 126, 750
From the foregoing compilation it appears and the undersigned finds that as
of June 14, 1949, the Kruse Company sold and delivered to Stonestown project in
interstate commerce goods valued at $126,750."
Alfred F. Levi, salesman with W. P. Fuller and Company, testified in sub-
stance: That his company sold and installed all glass in Stonestown apartments,
that approximately $48,000 worth of glass was purchased and shipped to Cali-
fornia from without the State of California ; that approximately $2,000 worth
of glass was purchased within the State of California : that he personally super-
14 The findings with reference to The Standard Oil Company of California ' s additional
office building (other than Reed's subcontract thereon) is based on the credited testimony
of E P. Wright , manager of the building design construction department for said Standard
Oil Company.
15 Stonestown project is an apartment and commercial development being erected by
Stoneson Development Corporation, as developer and general contractor When com-
pleted, the project will have 683 apartments of 1, 2, and 3 bedrooms and a commercial
area The apartments were over 90 percent completed in July 1950. Construction of
the commercial area was just beginning in July 1950. While W. Boyd Stewart, secretary
of Stoneson Development Corporation , testified that it was estimated that Stonestown
project , when completed , would cost $ 10,000 ,000, he conceded upon cross-examination
that contracts on the project completed to date of the hearing amounted to but $3,688,000.
The undersigned does not find that this latter figure denotes the value of improvements
actually made on Stonestown project, but is of the opinion that it represents the approxi-
mate value of contracts for certain improvements made or to be made on the project.
16 Donald Whittemore, office manager for Pomeroy, testified that practically all of the
lumber contracted for had been delivered , but could not say that it had all been so
delivered by June 14, 1950.
1T The exact figures are $779 ,341.47. The figuie $780 , 000 is used as a round number
in this instance.
18 The findings made in this section are based on the credited testimony of Edward H
Kruse, trustee.
GEORGE W. REED 709
vised the installation of all the glass in Stonestown apartments ; and that of the
$48,000 worth of glass so installed 50 percent or $24,000 worth was in the com-
pany warehouse at the time the contract to furnish and install it was made.
From the foregoing it appears that $48,000 worth of glass was actually trans-
ported in interstate commerce ; and that approximately $24,000 worth of glass
was sold, shipped, and transported in interstate commerce in 1949.19
From the foregoing findings it appears that in 1948 Reed performed services
-for The Pacific Telephone and Telegraph Company in the amount, of $148,000.
Since the sum so paid to Reed was for work done on a telephone exchange,
such services were necessary to the operations of said Telephone and Telegraph
Company As found above, the Board has heretofore asserted jurisdiction over
this company Also, as found above, Reed in 1948 performed services for The
Pacific Gas and Electric Company in an amount in excess of $60,000 for certain
work on a substation necessary to such Gas and Electric Company in its opera-
tions. Since such services aforesaid are and were valued at $50,000 per annum
,or more, the Board will exercise jurisdiction over enterprises such as Reed's
shown herein, by virtue of the fact that such services so furnished are necessary
.to the operations of other employers engaged in commerce.20 In 1949, as above
found, Reed performed, under the terms of a subcontract, $150,000 in construction
services for The Pacific Telephone and Telegraph Company of a 9- to 10-story
building to be used as an office building and telephone exchange necessary in the
operations of said company's business, both intrastate and interstate What
has been said above with reference to the 1948 contract covering Reed's sale of
services to said Telephone and Telegraph Company is equally applicable to the
1949 transactions.'
It has been found that Reed had a subcontract covering certain masonry work
performed in 1949 on the $6,000,000 addition to the Standard Oil Company of
California's home office building, in the amount of $200,000
In a recent Board decision in re Standard Oil Company of California and
,Oil Workers Union, CIO," the Board, with reference to commerce, found :
During 1948, the Respondent produced in the State of California over
70 million barrels of refined petroleum products of which more than 75 per-
cent was shipped to points located outside the State of California During
1949 substantial amounts of Respondent's product was shipped from its
,California refineries to points located outside the State of California.
It would appear from the record that the new or additional office building
,constructed in 1948 and 1949 for Standard Oil Company of California was and is
necessary to Standard Oil Company's operation, and it is so found. Inasmuch
as Reed's services under his subcontract were valued at $50,000 or more, the
Board, under its recently promulgated decisional standards having to do with
its exercise and assertion of jurisdiction or declining so to do, depending as to
whether the policies of the Act would be effectuated by the exercise of jurisdiction
in any given case, should assert and exercise jurisdiction on the basis of the
facts found above in connection with Standard Oil Company of California.23
19w Boyd Stewart, secretary for Stoneson Deielopment Corporation and other Stone-
son corporations, testifying as a witness herein, on July 5, 1950, stated that the apart-
ment buildings were practically 99 percent completed, from which the undersigned infers
that at least 50 percent of the glass panes were installed in 1949, inasmuch as it is a normal
practice to install glass as one of the final operations in enclosing such structures.
20 See Hollow Tree Lumber Company, 91 NLRB 635; Rock Asphalt, The., and General
,Contracting Employers' Association, 91 NLRB 1515
21 See footnote next above. -
23 91 NLRB 783
21 Hollow Tree Lumber Company; supra.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record indicates that while Stoneson Development Corporation's project,
when ocmpleted, will cost about $10,000,000, at the time of the hearing but
some $3,688,000 had been expended on the project.
Part of the material received in interstate commerce by Stoneson by the date
of hearing was approximately as follows :
Seller Material Total cost Amount incommerce
Pomeroy & Co------------------------ - Lumber------------------------------- $300, 000 $180,000I J Kruse Co-------------------------- Heating, plumbing-------------------- 780, 000 126, 000
Fuller & Co
Window glass------------------------- 50,000 24 48, 000
Total----------------------------- 354, 000
From the foregoing it appears that Stoneson Development Corporation is
engaged in commerce within the meaning of the Act ; and inasmuch as Reed's
services under his subcontract valued at $110,239, or more than $50,000, was and
is'necessary to Stonestown project's operations, such facts standing alone would
warrant the Board's assertion of jurisdiction herein. It is so found.
On the basis of the foregoing and upon the entire record, the undersigned
concludes and finds that Respondent Reed's operations have and tend to have
a direct and substantial effect upon interstate commerce as defined by the Act ;
and that the policies of the Act will be effectuated by the Board's asserting and
exercising jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Hod Carriers, Building & Common Laborers Union of America,
Local No. 36, AFL, is a labor organization within the meaning of Section 2 (5)
of the Act.
III. TIIE UNFAIR LABOR PRACTICES
A. The discriminatory discharge of Ernest Sydney Chariton; interference,
restraint, and coercion
1. The sequence of events; the facts
Claimant Charlton joined Local No. 36 in August 1906 He has been a member
of said Local continuously since that date, with the exception of one occasion
when he was injured in about 1915. He did not work for almost 12 months and
was reinstated in his membership in 1916, "at half the amount" of union dues
during the time he was unable to work.
On and prior to May 1949, Charlton was employed by Harry E. Drake, a
masonry contractor in San Francisco, California On or about May 11, 1949,25
Charlton was laid off. - Drake testified that Charlton worked until May 11, 1949,
when according to the latter he applied to Reed's superintendent, one John
Dikerman,26 for a job and "he signed me up." Charlton was employed at the
Stonestown project and worked until June 14, 1949.
" Other items of selser amounts could have been included in this compilation.
22 The record does not fix the exact date that Charlton was laid off by Drake and the
date he was employed by Reed. The parties stipulated that be was employed by Reed
and the latter's foreman, Patrick McDonaugh, estimated the time as 4 Cr 5 weeks.
11 Dikerman was not called as a witness.
GEORGE W. REED 711
At about 11 a in. Joseph A. Murphy appeared at the job site and talked to some
of Reed's bricklayers. Ray Green, a bricklayer then employed by Reed, informed
Charlton that "Murphy's going to have you put off the job, and if Pat [Patrick
McDonaugh, Reed's foreman] won't fire you he's going to pull the men off the job,
the other hod carriers, and tie the job up."
Foreman McDonaugh testified that when he came upon the scene he found one
Sweeney, a hod carrier, walking away with his duffel bag and asked, "What's the
matter?" Sweeney replied, "Well, . . . Joe [Murphy] blew the job." In con-
nection with his talk with Murphy, McDonaugh testified:
Q. Who is Joe?
A. Joe Murphy. So I says to Joe, "What's going on here?" "Well," he says,
"they can't work with this man on the job." So, I says, "Well, let it go until
noontime, Joe, and I'll take care of him." No, he had to be laid off right then.
[Emphasis added.]
Q. Excuse the interruption, did he say who was this man?
A. Well, he just said this man I don't think he mentioned the name or
anything like that. He just said they can't work with that man Mr. Charlton.
Murphy in part testified :
Q. Did you talk to the employer and ask him to lay Charlton off?
A. I told the foreman the hod carriers weren't going to work with this
individual until he did get a clearance 27
Murphy held no conversation with Charlton, but handed him a "citation" to
report on June 17, 1949, before Local No. 36's executive committee. According to
Charlton he went to the union hall and found no hod carriers in session.`8
In connection with Charlton's termination Reed's answer alleged as follows :
Answering the allegations contained in paragraph V of the complaint,
Respondent avers that on June 14, 1949, his foreman laid off Ernest Sydney
Charlton upon the request and demand of the business agent of Respondent
Union. He denies that such lay off was for the reason that he had been
advised that said Charlton was not in good standing as a member of the
Respondent Union,2D and in this connection, he alleges that the said lay off
was for the sole reason that said business agent threatened at said time and
place, that unless said Charlton left the project, said business agent would
cause all other hod carriers working on said project to leave the project
immediately.
Reed further justified his layoff of Charlton as follows :
. . . In this case there was a weak link and it had to be straightened out
and in this present case the man was told he could come back to work as soon
as he had straightened the weak link out; [complied with the Union' s rules]
straightened himself out.30 Otherwise my job would have been tied up and
the performance of my contract would have been imperiled.
27The Union contended that Charlton should not have gone to work for Reed without
a prior "clearance" from Local No 36 There is no contention or evidence that the Union
had a union-shop contract or any contract covering Reed's employees on June 14, 1949.
28 There is testimony of a second citation being served on Charlton by the Union and
testimony that he did not attend any session of the executive committee Since Local No.
36 had no contract with Reed covering the latter's employees, Charlton's affairs with
Local No. 36 can have no bearing on the issues herein. It is so found.
20 Reed's foreman, McDonaugh, testified that Business Agent Murphy had told the former
that Charlton could not work for Reed "on account of the man not being clear. He said
the man would have to have clearance "
°°It should be noted that Reed had or made no complaint that Charlton was not a
competent workman. The above testimony indicates a disposition on Reed's part to,
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing and the record it would appear that Charlton's
discharge, and means by which it was occasioned, were each in violation of the Act,
anless the contentions of the Respondent parties referred to below have merit.
2. Issues ; contentions ; conclusions
Respondent Reed contends in substance and effect that: (1) The Board should
decline to assert jurisdiction herein, as such assertion would not effectuate the
policies of the Act; (2) Charlton's layoff not a violation of Section 8 (a) (1)
and (3) of the Act, since it did not restrain or coerce Charlton from exercising
his rights to refrain from engaging in concerted activities for purposes of collec-
tive bargaining, nor did such layoff encourage or discourage Charlton to become
or remain a member of Respondent Union; and (3) assuming that the Board
asserts jurisdiction herein and assuming further that it determines that
Respondent Reed has violated provisions of the Act, the entry of a back-pay
order would not effectuate the policies of the Act.
As to contention (1), the undersigned has found above in Section I that the
Board not only has jurisdiction herein, but also finds that the policies of the Act
will be effectuated by the Board's asserting and exercising such jurisdiction.
Respondent Reed's contention (1) is without merit. It is so found.
As to contention (2), wherein Respondent Reed contends in effect that since
Charlton has been a lifetime member of Local No 36 and has not been expelled
from or resigned from the Union that his layoft by Reed has not restrained or
coerced him from (a) exercising his "right to refrain trom engaging in concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, (b) nor did it encourage or discourage the Charging Party [Charlton] to
become or remain a member of Respondent Union."
In this connection Respondent Reed's brief states as follows :
The Charging Party has been a member of the Respondent Union con-
tinuously since 1906, with the exception of a brief period in 1915 and 1916
when he was incapacitated by an injury. He has not been expelled from
the Union, nor has he voluntarily resigned his membership. Respondent
Union demanded that he be laid off solely because of his failure to comply
with a Union rule requiring that members report any change in their
employment to the Union.
In view of the Charging Party's long-continued membership in the Union
and his claim to Union membership up to the very date of the hearing, the
charge that his lay-off by Respondent Employer "restrained" or "coerced"
him from refraining from Union membership or activity within the meaning
of section 7 of the Act is wholly unreliable. It is not reasonable to conclude
that a man who has supported a union for more than forty years would
suddenly desire to withdraw from the union because of the threat of
disciplinary action for violation of a rule requiring that a change in em-
ployers be reported to the Union. We submit that Respondent Employer's
action in laying off the Charging Party until he straightened out his difficulty
with the Union Business Agent could not possibly have "coerced" or "en-
couraged" the Charging Party to remain a member of Respondent Union
for the simple reason that the Charging Party had no desire or intention to
relinquish his Union membership. For the same reason, such action cannot
be said to have "encouraged" the Charging Party to become or remain a
member of the Union. [Emphasis in original ]
concede to Local No 36 such rights as would be recognized under the Act only after
the proviso to Section 8 (a) (3) of the Act had been complied with by way of an election.
GEORGE W. REED 713
The foregoing quoted portion of Respondent's brief is anomalous to say the
least. However, it is significant for the admissions contained therein, namely :
We submit that Respondent Employer's action in laying off the Charging
Party until he straightened out his difficulty with the Union Business Agent
could not possibly have "coerced" or "encouraged" the Charging Party to
remain a member of Respondent Union. . . .
As to (2) (a), the record discloses that Charlton after his layoff by Reed sent
his union dues to Respondent Union and that such dues were returned by the
latter, thus on the surface and on the record, Charlton desires to retain his
union membership but further desires to refrain or absent himself from attending
trials by the Union's executive committee. Under the Act Charlton has the right
to refrain from such activities in part or in whole as he may see fit. The Union's
constitution and/or bylaws may and probably does permit Local No. 36 to expel is
member who refuses to submit to a trial or hearing before such executive com-
mittee upon service of a "citation," such as is referred to elsewhere in the record.
The fact that Charlton has not seen fit to voluntarily resign from the Union
does not imply that his discharge by Reed was not discriminatory" The facts
are that Charlton under Section 7 of the Act was at liberty to refrain from any
concerted activity with his fellow union members or others regardless of the
nature of the activity whether to join in the attendance of a social meeting or
submit to a trial or hearing before the Union's executive board; and in the
absence of a union-shop agreement between the Union and Reed, the latter was
without legal authority to discharge or lay off Charlton "until he straightened
out his difficulty with the Union Business Agent." Charlton's termination by
Reed under the circumstances was in violation of Section S (a) (1) and (3) of the
Act since it sought to force Charlton to engage in certain concerted activities
from which"he desired to refrain. It is so found.
As to (2) (b), it is clear from the foregoing and the record that Reed's dis-
charge of Charlton on June 14, 1949, would by reason of fact that Charlton had for
upwards of 40 years been a union member worker in the Building Trades where
closed-Shop conditions have generally existed, have impelled Charlton to retain
membership in Local No 36 or run the chance of being deprived of a continuing
opportunity to earn his livelihood at his trade. Moreover, it is clear that by Reed's
admitted action through his foreman, Patrick McDonaugh, on June 14, 1949, in
laying off Charlton until he complied with the demands of Business Agent
Murphy of Local No 36, Reed thereby granted to and served notice on all masonry
employees that he had granted to Local No. 36 the benefit of a closed-shop con-
tract, notwithstanding neither Reed nor Local No. 36 had complied with the
proviso of Section 8 (a) (1) and (3) of the Net. Contention (2) is without
merit. It is so found.
,As to contention (3), wherein Reed contends that in the event the Board
asserts jurisdiction and determines that Reed has violated provisions of the
Act, that it would not effectuate the policies of the Act to enter a back-pay
order against Reed. In his argument in support of this contention, Reed's
counsel argues that Charlton's difficulty with his Union was "over an essen-
tially trivial matter, that lie endangered the employment of the entire crew
of 10 men." If the foreman had not yielded to the demands of the Union's
ar It may well be that without membership in Local No 36 it would be impossible for
Charlton to follow his trade in the San Francisco Bay Area at all From the record it
may be inferred that all masonry contractors and subcontractors make wage agreements
with interested unions. Reed , in fact testified : ". . We also make and have a three
months' negotiated wage agreement which gives us our scale of wages to be paid to the
different trades."
'714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business agent, a work stoppage would have resulted which would have tied up
the job indefinitely.
Whether Chariton's difficulty with his Union was over a trivial matter or not,
it was of no concern to Reed since the latter had no union or closed-shop con-
tract requiring him to discharge his employees on demand of the Union ; and
while the Union might have caused the crew of 10 men to leave the job with a
loss to Respondent Reed, such fact would not justify or excuse Reed for vio-
lating the Act.' Contention (3) is without merit.- It is so found.
The Respondent Union in substance and effect contends that:
Reed's operations and purchases of materials being mostly intrastate and his
interstate purchases of materials being but a small percentage of his total, that
his operations pose questions, as follows:
(a) Fail to affect commerce within the meaning of the Act, so that the
"Board would lack jurisdiction to hear an alleged unfair labor practice
case ..." ; or
(b) If some remote effect on commerce could be found in' said contrac-
tor's business essentially local in its nature and character, so that it would
not effectuate the policies of the Act to assert jurisdiction in the alleged
unfair labor practice case.
On the whole, Respondent Union's brief, which incidentally discloses con-
siderable amount of research, contends and argues to the effect that the Board
does not have jurisdiction herein ; that if it should determine otherwise it
should refuse to assert jurisdiction since Respondent Reed's interstate business
affects commerce with the "de minimus doctrine" ; and that if it is found that
some remote effect upon commerce by Respondent Reed is found, despite that,
his business is essentially local in its nature and character and it would not
effectuate the policies of the Act to assert jurisdiction.
For the reasons set forth in connection with the consideration of Respondent
Reed's contention, the undersigned is of the opinion that the Board has and
should assert jurisdiction herein, which findings therefore answer Respondent
Union's posed questions (a) and (b) in finding that Reed's operations have a
-continuous and important effect upon the flow of commerce in both the building
industry as such and in other industries serving and engaged in commerce. It
is so found.
From the foregoing and upon the entire record it appears and the undersigned
finds that Respondent Reed discriminated in regard to the hire and tenure of
employment of Ernest Sydney Charlton by his discharge on June 14, 1949, caused
in part at least by Respondent Union's insistence and threats to the effect that all
'hod carriers would be removed from the job if Charlton was not removed
instantly; and by Respondent Reed's acquiescing in, demands for Charlton's
termination, and by granting, in effect, closed-shop rights to Respondent Union,
thereby encouraging membership in the Union, and enabling Respondent Union
to enforce obedience by its members to such rules as Respondent Union had or
may prescribe, all contrary to the Act, Respondent Reed has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
By the making of and enforcing of such demands, and by causing Respondent
Reed to so discriminate against Charlton, Respondent Union has engaged in
unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2)
,of the Act.
32 The Board and the courts have long and consistently held that economic exigency does
not excuse violations of the Act. Star Publishing Co , 97 F. 2d 465-467 (C. A. 9). Guy
iF'. Atkinson Co., et at ., 90 NLRB 143.
C
GEORGE W. REED 715
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in Section III, above , occurring in
connection with the operations of Respondent Reed described in Section I,
above, have a close, intimate , and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor
practices, it will be recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It will be recommended that Respondent Reed offer to Ernest Sydney Charlton
immediate and full reinstatement to his former or substantially equivalent posi-
tion 33 without prejudice to his seniority or other rights and privileges, jointly
and severally with Respondent Union, make him whole for any loss of pay he
may have suffered by reason of the Respondent's discrimination against him by
payment to him of a sum of money equal to that which he would normally have
earned as wages from the date of his discharge to the date of Respondent Reed's
offer of reinstatement, less his net earnings u during such period. The loss of
pay will be computed on a quarterly calendar basis, in accordance with the
formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289.
Earnings in one particular quarter will have no effect upon the back-pay liability
for any other quarter. The undersigned also recommends that Respondent Reed
make available to the Board, upon request, payroll and other records to facilitate
back-pay computations F. W. Woolworth Company, supra.
CONCLUSIONS OF LAW
1. International Hod Carriers, Building & Common Laborers Union of America,
Local No. 36, AFL, is a labor organization within the meaning of Section 2 (5)
of the Act.
2. By acquiescing in the demands for; by, in effect, granting closed-shop rights
to Respondent Union contrary to the proviso of Secton 8 (a) (3) of the Act,
all to the end that the Union could enforce obedience by its members to such
rules as the Union had or might prescribe; and to encourage membership in
the Union Respondent Reed thereby engaged in unfair labor practices within
the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act.
3. By the making of; enforcing of such demands ; and causing Respondent
Reed to so discriminate, Respondent Union has engaged in unfair labor practices
within the meaning of Section 8 (b) (2) of the Act.
4. By discriminating in regard to the hire and tenure of employment of
Ernest Sydney Charlton, thereby encouraging membership in the Union, and
n In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position " is intended to mean "former position wherever
possible and if such position is no longer in existence then to a substantially equivalent
position ." See The Chase National Bank of The City of New York, San Juan , Puerto
Rico, Branch, 65 NLRB 827.
94 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere, which would not have been incurred but for this unlawful discrimination and
the consequent necessity of his seeking employment elsewhere. Crossett Lumber Company,
8 NLRB 440 . Monies received for work performed upon Federal , State, county, municipal,
or other work-relief projects shall be considered earnings . Republic Steel Corporation v.
N. L. R. B.,311U S 7.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOAlil)
enabling the Union to enforce obedience by its navmhers to such rules as the
Union has or may prescribe , Respondent Reed has engaged in unfair labor
practices within the meaning of Section S (a) (:t) and (1 ) of the Act.
5. By causing Respondent Reed to discriminate against said Ernest Sydney
Charlton , as aforesaid , Respondent Union has engaged in unfair labor practices
within the meaning of Section S (b) (2) and S (h) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair Iahor practices affecting
commerce within the meaning of Section 2 (6 ) and (7) of the Act.
[Recommended Order omitted from publication in this voluiue.]
FISCHER STEEL CORPORATION and UNI'rEn S'i'sia.wouictats of,, ADII:RICA.
CIO, PETITIONER. Case ^1o. 31ay 18, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a bearing was held Before Aut.hony J. Sabella,
hearing 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 Act, the Board
has delegated its powers in connect ion wit Ii this case to a three-member
panel [Chairman Herzog and Members Houston and Reynolds].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commercv witliiii the me.allillg of the
Act.
2. The labor organizations involved cla iii to represent: certain
employees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaaiiug of Section 9 (c).
(1) and Section 2 (6) and (7) of the Act, for the following reasons:
The Employer and Sliopmen's Local Union No. 530 of the Interna-
tional Association of Bridge, Structural Hill Ornamental Iron
Workers, AFL, llereiu called the Intervenor, contend that, their cur-
rent contract constitutes a bar to this proceeding. The Petitioner
argues that the contract is but a premature extension of an earlier
agreement, and therefore cannot operate as a, bar beyond the term.
of the original contract.
On February 4, 1948, the Employer and the Intervenor entered into
a contract effective until April 3, 1949 and providing for annual auto-
matic renewal thereafter in the absence of (10 days' not=ice to terminate
the agreement. In 1949, pursuant to this renewal clause, the contract
was automatically extended to April 3, 1950. ()it or about January 27,
1950, 1 week before the Mill B date of the contract, t.lie Intervenor sent
-a letter, signed by its president, to the Employer, advising it of the
94 NLRB No. 114.