Oertel Brewing Co.

National Labor Relations Board - Board Decisions

Mar 1, 1951

93 N.L.R.B. 530 (N.L.R.B. 1951)

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
OERTEL BREWING COMPANY AND LOUISVILLE BREWERS ASSOCIATION and
DISTRICT No. 27, INTERNATIONAL ASSOCIATION OF MACHINISTS
LOUISVILLE BUILDING & CONSTRUCTION TRADES COUNCIL and DISTRICT
No. 27 , INTERNATIONAL ASSOCIATION OF MACHINISTS
FALLS CITIES CARPENTERS DISTRICT COUNCIL OF THE UNITED BROTHER-
HOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL and DISTRICT
No. 27, INTERNATIONAL ASSOCIATION OF MACHINISTS. Cases Nos .
9-CA-168,9-CB-41, and .9-CB-42. March 1,1951.
Decision and Order
On September 29, 1950, Trial Examiner Reeves R. Hilton issued
his Intermediate Report in the above-entitled proceeding, finding that
Respondents Oertel and Carpenters had engaged in and were engag-
ing in certain unfair labor practices and recommending that they cease
and desist therefrom and take certain affirmative action as set forth in
the copy of the Intermediate Report attached hereto. The Trial
Examiner also found that Respondents Association and Council had
not engaged in certain other alleged unfair labor practices and rec-
ommended dismissal of the complaint as to these Respondents. There-
after, the General Counsel and Respondents Oertel and Carpenters
filed exceptions to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the recommendations of the Trial Examiner, with the addi-
tions set forth below :
1. The General Counsel has excepted to the Trial Examiner's failure
to find that Respondent Council, as well as Respondent Carpenters,
caused Respondent Oertel discriminatorily to discharge the four
machinists involved herein. The Respondent Council is comprised
of various local building trades unions. The General Counsel con-
tends that the Respondent Council became liable for causing the dis-
charges as a result of certain statements made by Hudson, who at the
time was president of the Council as well as business representative
of Local 369, Electrical Workers, Union, which was a council member,
and represented the electricians employed by Respondent Oertel.
Hudson had participated in discussions with Respondent Oertel rela-
tive to the dispute about whether certain equipment installation work
' Pursuant to the provisions of Section 3 (b) of the Act , the National Labor Relations
Board has delegated its powers in connection with this case to a three-member panel
[Members Houston, Murdock, and Styles].
93 NLRB No. 78.
OERTEL BREWING COMPANY 531
should be performed by machinists 2 or by members of the Respondent
Carpenters, and the statements in question were made during these
discussions. Hudson at no time during these discussions represented
himself as speaking on behalf of the Respondent Council, and repre-
sentatives of Respondent Oertel apparently understood that Hudson
was speaking for the Electrical Workers, and not for the Respondent
Council. We have considered the entire record in this case and,
although the matter is not entirely free from doubt, we are of the
opinion that Hudson participated in the discussions as a representa-
tive of the Electrical Workers, and that his statements were not made
for and cannot be attributed to the Respondent Council. We find
therefore, that the Respondent Council did not violate Section 8 (b)
(2) of the Act, and accordingly we shall, as did the Trial Examiner,
dismiss this allegation of the complaint.
Order
Upon the basis of the entire record in the case, and pursuant to Sec-
tion 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that :
1. Oertel Brewing Company, a corporation, its officers, agents,
successors, and assigns, shall :
(a) Cease and desist from:
(1) Discouraging membership in District No. 27, International
Association of Machinists, or in any other labor organization of its
employees, or encouraging membership in Falls Cities Carpenters
District Council of the United Brotherhood of Carpenters and Joiners
of America, AFL, or in any other labor organization of its employees,
by discharging any of its employees or discriminating in any other
manner in regard to their hire or tenure of employment or any terms
or conditions of employment.
(2) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist District No. 27, International
Association of Machinists, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
' The Machinists claimed this work on the basis of its contract with Oertel. On June 17,
1948, after an election conducted pursuant to Section 9 (e) (1) of the Act, the Board issued
its certification of results authorizing the Machinists to make an agreement requiring mem-
bership in the Machinists as a condition of employment . ( Louisville Brewers Association,
Case No 9-UA-520.) Section 2 of the agreement , set forth in the Intermediate Report,
provides that certain work shall be performed "by qualified employees who are in accord
with the articles of this agreement and a part of the" Machinists . However, this clause is
concerned with the matter of work jurisdiction and not with the question of union member-
ship. The latter subject is set forth in section 3 of the agreement and provides only that
upon request the Machinists will furnish competent help, if possible, and that any person so
employed shall within 30' days ' become and remain a member in good standing of the
Machinists.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all
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, authorized in Section 8 (a) (3) of the Act.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Post at its plant in Louisville, Kentucky, copies of the notice
attached hereto as Appendix A.3 Copies of said notice, to be fur-
nished by the Regional Director for the Ninth Region, shall, after
being duly, signed by Respondent Oertel's representative, be posted
by it immediately upon receipt thereof and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent Oertel to insure that said notices
are not altered, defaced, or covered by any other material.
(2) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
2. Falls Cities Carpenters District Council of the United Brother-
hood of Carpenters and Joiners of America, AFL, its officers, repre-
sentatives, and agents, shall :
(a) Cease and desist from:
(1) Causing or attempting to cause, by picketing or threatening
to picket, Oertel Brewing Company, its officers, agents, successors,
or assigns, to discharge or otherwise discriminate against its em-
ployees because they are not members of Falls Cities Carpenters
District Council of the United Brotherhood of Carpenters and Joiners'
of America, AFL, except in accordance with Section 8 (a) (3) of
the Act.
(2) In any other manner causing or attempting to cause Oertel
Brewing Company, its officers, agents, successors, or assigns, to dis-
criminate against its employees in violation of Section 8 (a) (3) of
the Act.
(b) Take the following affirmative action which the undersigned
finds will effectuate the policies of the Act :
(1) Post at its offices, if any, at Louisville, Kentucky, and wherever
notices to its members are customarily posted, copies of the notice
attached hereto as Appendix B 4 Copies of said notice, to be fur-
' In the event this Order is enforced by a United States Court of Appeals , there shall be
inserted before the words "A Decision anal Order ," the words , "A Decree of the United
States Court of Appeals Enforcing "
4In the event this Order is enforced by 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."
OERTEL BREWING COMPANY 533
nished by the Regional Director for the Ninth Region, shall, after
being duly signed by said Union's representatives, be posted by it
immediately upon receipt thereof, and be maintained by it for -a
period of at least sixty (60) consecutive days thereafter, in con-
spicuous places, including places where notices are customarily posted.
Reasonable steps shall be taken by said Union to insure that such
notices are not altered, defaced, or covered by any other material.
(2) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
3. Oertel Brewing Company, its officers, agents, successors, and as-
signs, and Falls Cities Carpenters District Council of the United
Brotherhood of Carpenters and Joiners of America, AFL, its officers,
representatives, and agents, shall jointly and severally make whole
Robert L. Crutcher, James W. Douglas, Ralph W. Ohlman, and R. G.
Thompson for any loss of pay each may have suffered because of the
discrimination against him, by payment to him of a sum of money
equal to the amount he normally would have earned as wages from
July 6, 1949, the date he was discriminatorily discharged, to the date
of the completion of the installation of the machinery at Respondent
Oertel's project in Louisville, Kentucky, less his net earnings during
said period.5
AND IT Is FURTHER ORDERED that the complaint be, and it hereby is,
dismissed as to Louisville Brewers Association and Louisville Build-
ing & Construction Trades Council.
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 discourage membership in DISTRICT No. 27, INTER-
NATIONAL ASSOCIATION OF MACHINISTS, or in any other labor
organization, or encourage membership in FALLS CITIES CAR-
PENTERS DISTRICT COUNCIL OF THE UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL, or in any other labor
organization, by discriminatorily discharging any of our em-
ployees or discriminating in any other manner in regard to their
hire or tenure of employment, or any terms or conditions of
employment.
" As Respondent Oertel's construction project was completed in less than a 3-month
period; the Board finds it unnecessary to apply the back-pay formula set forth In F. W.
Woolworth Company, 90 NLRB 289.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-organi-
zation, to join or assist DISTRICT No. 27, INTERNATIONAL ASSO-
CIATION OF MACHINISTS, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from
any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as authorized in Section 8 (a) (3) of the National
Labor Relations Act.
WE WILL MAKE Robert L. Crutcher, James W. Douglas, Ralph
W. Ohlman, and R. G. Thompson whole for any loss of pay suf-
fered as a result of the discrimination against them.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing of the above-
named union or any other labor organization, except to the extent that
this right may be affected by agreements in conformity with Section
8 (a) (3) of the Act.
OERTEL BREWING COMPANY,
Employer.
Dated --------------------
By ---------------------------------
.(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF FALLS CITIES CARPENTERS DISTRICT COUN-
CIL OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL, AND TO ALL EMPLOYEES OF OERTEL BREWING
COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause, or attempt to cause, by picketing, or by
threatening picket action, OERTEL BREWING COMPANY, its officers,
agents, successors, and assigns, to discharge or otherwise dis-
criminate against employees because they are not members of
Falls Cities Carpenters District Council of the United Brother-
hood of Carpenters and Joiners of America, AFL, except in
accordance with Section 8 (a) (3) of the Act.
OERTEL BREWING COMPANY 535
WE WILL NOT in any other manner cause or attempt to cause
OERTEL BREWING COMPANY, its officers, agents, successors, or as-
signs, to discriminate against employees in violation of Section
8 (a) (3) of the Act.
WE WILL MAKE Robert L. Crutcher, James W. Douglas, Ralph
W. Ohl"man, and R. G. Thompson whole for any loss of pay they
may have suffered because of the discrimination against them.
FALLS CITiiis DISTRICT CARPENTERS COUNCIL
OF THE UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, 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 and Recommended Order
Mr. William A. McGowan, for the General Counsel.
Mr. Herman Cohen, of Louisville, Ky., for Respondent Council and Carpenters.
Mr. Grover Sales, of Louisville, Ky., for Respondent Oertel Brewing Company.
Mr. James W. Stites, of Louisville, Ky., for Respondent Association.
Mr. D. J. Omer, of Cleveland, Ohio, for District 27, IAM.
STATEMENT OF THE CASE
Upon charges duly filed by District No. 27, International Association of Ma-
chinists, herein called the Machinists, the General Counsel of the National Labor
Relations Board,' by the Regional Director for the Ninth Region (Cincinnati,
Ohio), entered an order consolidating the cases and issued a consolidated com-
plaint dated May 16, 1950, against Oertel Brewing, a corporation, and Louisville
Brewers Association, an unincorporated association, herein called Oertel and
the Association, respectively, and against Louisville Building & Construction
Trades Council and Falls Cities Carpenters District Council of the United
Brotherhood of Carpenters and Joiners of America, AFL, labor organizations,
herein called the Council and Carpenters, respectively, alleging that Respondents
Oertel and Association had engaged in and were engaging in unfair labor prac-
tices 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 the Respondents Council and Carpenters had en-
gaged in and were engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (b) (2) and Section 2 (6) and (7) of the Act. Copies
of the complaint, the charges, the order of consolidation, and notice of hearing
were duly served upon each of the parties.
With respect to the unfair labor practices, the complaint alleged in substance
that : On or about July 6, 1949, Oertel and the Association discharged four
named employees, and thereafter refused to reinstate these employees, because
of their nonmembership in and for the purpose of encouraging membership in
the Carpenters and discouraging membership in the Machinists; on or about
' The General Counsel and his representative at the hearing are referred to as the
General Counsel ; the National Labor Relations Board is referred to as the Board.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 23, 1949, and thereafter, the Respondents Council and Carpenters attempted
to cause and did cause Oertel and the Association to discharge the four named
employees because they were members of the Machinists and were not members
of the Carpenters. Thereby, Respondents Oertel and the Associatibn.violated
Section 8 (a) (1) and (3) of the Act, and Respondents Council and Carpenters
violated 8 (b) (2) of the Act.
On or about May 19, 1950, Respondent Oertel filed an answer denying that
it had engaged in the commission of unfair labor practices as alleged in the
complaint.
On or about May 24, 1950, Respondent Association filed its answer denying:
(1) That it has executed collective bargaining agreements on behalf of or as
agent for Respondent Oertel; (2) that it is engaged in any business affecting
commerce; (3) that it is an employer as defined in the Act; and (4) that it has
engaged in the commission of any unfair labor practices ; affirmatively, the
answer alleges that the Association maintains an office in Louisville, Kentucky,
where representatives of its members, Oertel, Falls Cities Brewing Company,
herein called Falls Cities and Frank Fehr Brewing Company, herein called Fehr
and representatives of various unions as well as the Association meet and
negotiate collective bargaining agreements but that the Association is not a party
to any such agreements and exercises no authority over members of the Asso-
ciation or their employees and that the Association had nothing to do with the
discharge of the four employees of Oertel.
Respondents Council and Carpenters duly filed a joint answer, undated, denying
the commission of unfair labor practices.
Pursuant to notice, a hearing was held at Louisville, Kentucky, on June 20
and 21, 1950, before the undersigned Trial Examiner duly designated by the
Chief Trial Examiner. The General Counsel and all Respondents were repre-
sented by counsel and the Machinists were represented by an international
representative. All parties participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues. At the close of the General Counsel's
case-in-chief, each of the Respondents moved to dismiss the complaint for lack
of proof, which motions were taken under advisement by the undersigned. For
the reasons stated below, the motions of Respondents Oertel and Carpenters are.
now denied and the motions of Respondents Association and Council are hereby
granted.. After the taking of evidence the undersigned granted, without objection,
the General Counsel's motion to conform the pleadings to the proof in respect to
matters of form. The parties waived oral argument at the conclusion of the
hearing. Thereafter, the General Counsel and Respondents Association and
Oertel filed briefs with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Respondent Association of Louisville, Kentucky, is an unincorporated associa-
tion comprised of three companies, Respondent Oertel, Falls Cities, and Fehr,
each of which is engaged in the brewing of beer in Louisville, Kentucky. The
Association has no formal constitution or bylaws and is not registered with
the secretary of state of Kentucky. For a number of years Respondent Associa-
tion has assisted its members in the handling of various trade and industrial
problems, including labor relations. Respondent Association functions through
OERTEL BREWING COMPANY 537
its board of directors composed of a chairman and one representative designated
by each of its members , and employs an executive secretary and a stenographer.
Respondent Association conducts negotiations with various labor organizations
and when an agreement is reached with a particular labor organization a single
contract is executed by the members with that organization. Although Re-
spondent Association is not a party to any collective bargaining contracts, it is
authorized to agree to "minor demands " presented by labor organizations in
the course of negotiations , but important matters requiring decision by the
members or a particular member are, accordingly, presented to representatives
of such members or member for decision. After the execution of an agreement,
the enforcement or application of its terms is the responsibility of each member
and the labor organization. Admittedly, Respondent Association is not engaged
in the purchase of any raw materials or supplies used in the brewing of beer
nor does it brew or distribute beer.
Respondent Oertel Brewing Company is incorporated under the laws of the
State of Kentucky and maintains its office and brewery in Louisville , Kentucky,
where it is engaged in the brewing, bottling, and distribution of beer. In the
conduct of its business operations , Oertel, during the year 1949 , purchased raw
materials , supplies , and equipment valued in excess of $500,000, of which in excess
of 50 percent was shipped to it from places outside the State of Kentucky. In
the same period, Oertel brewed , bottled, and distributed beer valued in excess
of $2,000,000, of which in excess of 18 percent was shipped in interstate com-
merce from its brewery to places outside the State of Kentucky . Respondent
Oertel raises no question concerning the jurisdiction of the Board over its
operations.
Falls Cities Brewing Company and Frank Fehr Brewing Company are Ken-
tucky corporations and maintain separate plants in Louisville, Kentucky, where
they are engaged in the brewing, bottling, and distribution of beer. During the
year 1949, each purchased raw materials, supplies, and equipment valued in
excess of $2,000 ,000, of which a great percentage was shipped to their plants
from places outside the State of Kentucky . During the same period each
company brewed, bottled, and distributed beer valued in excess of $2,000,000,
of which a large percentage was shipped in interstate commerce from their plants
to places outside the State of Kentucky.
Respondent Association denies that it is engaged in commerce as defined in
Section 2 (6) and (7) of the Act, or that it is an employer within the meaning
of Section 2 (2) of the Act. Consistent with Board policy,' the undersigned
finds that in passing upon the jurisdictional issue herein , Respondent Associa-
tion and its members must be regarded as a single enterprise . That the totality
of the operations in volume and character of all members of the Association has
a substantial effect on interstate commerce is apparent. It is also clear that
Respondent Association , although it may be a loosely knit organization , possesses
sufficient authority to engage in collective bargaining on behalf of its members
to be deemed an employer within the meaning of that term as defined in the
Act.' Accordingly, the undersigned finds, for the purposes of this proceeding,
that Respondents Association and Oertel are engaged in commerce within the
meaning of the Act.
2 Indianapolis Cleaners and Launderers Club, 87 NLRB 472 , reversing 85 NLRB 1198;
Wirts Distributing Company , et al, 82 NLRB 669 ; Air Conditioning Company of Southern
California, et al, 81 NLRB 946.
' Retail Merchants Association of Terra Dante , Indiana, 83 NLRB 112 The fact that
the Association is not authorized to sign agreements is not determinative of whether
it is an employer as defined in the Act. The Everett Automotive Jobbers Association, 81
NLRB 304, 307.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
District No. 27, International Association of Machinists,' unaffiliated, Louis-
ville Building & Construction Trades Council, AFL, and Falls Cities Carpenters
District Council of the United Brotherhood of Carpenters and Joiners of
America, AFL, are each labor organizations within the meaning of Section 2 (5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
In April 1949, Respondent Oertel had a collective bargaining agreement with
the United Brewery Workers (CIO), covering its production employees, and
separate agreements with the Electricians, Steamfitters, and Plumbers, AFL
and the Machinists, covering its maintenance employees, in their respective
classifications. Oertel had no agreements with Respondents Council or Car-
penters.
The Machinists' agreement was effective from April 6, 1948, to April 6, 1949,
with an automatic renewal clause for 1 year, subject to termination or modifica-
tion by either party upon 60 days' written notice prior to its expiration date. The
Machinists served timely written notice of its intention to modify the agree-
ment and thereafter the parties engaged in negotiations which ultimately re-
sulted in the execution of a new agreement on August 8, 1949. In the course of
these negotiations the parties in writing, extended the terms of the 1948 agree-
ment for a total of 90 days, or until July 6, 1949.
About April 1949,` Oertel, as well as Falls Cities and Fehr, determined to install
a new bottle line which included the installation of a pasteurizer, bottle washer,
bottle filler, labelers, and other equipment necessary to complete the line "from
the time the empty bottles go into the washer until they came out the other end."
Part of this equipment, the pasteurizer and bottle washer, was purchased by
Oertel, and Falls Cities and Fehr, from the Barry Wehmiller Company of St.
Louis, Missouri. On April 15, Robert Weinhardt,° business representative of
the Machinists, advised Paul Morton, executive secretary of Respondent Asso-
ciation, that the Machinists had been notified by its sister local at Barry
Wehmiller, that the company had shipped certain equipment to Oertel and the
other members of the Association and, in accordance with the terms of its cur-
rent agreement with association members, the Machinists would furnish a suf-
ficient number of skilled machinists to complete the installation. Weinliatdt
enclosed with the letter a copy of the Machinists' working rules and rates appli-
cable to construction and erection work. The 1948 agreement, under which the
Machinists claimed the right to perform this work, provides :
Section 2. Jurisdiction-The erection, making, repairing, assembling and
dismantling of all machinery, automobiles and trucks, including lubrication
of such equipment, shall be performed by qualified employees who are in
accord with the articles of this agreement and a part of the Union.
This agreement further provides that the Machinists, upon request of the com-
panies, will furnish competent help, if possible to do so. Any person so employed
by the companies shall, after 30 calendar days, as a condition of continued
employment become a member of and remain a member in good standing in
the Machinists. Although all members of the Association executed a single
4 At the hearing the Trial Examiner , without objection , granted the General Counsel's
motion for leave to amend paragraph 4 of the complaint to allege that the Machinists
is a labor organization within the meaning of the Act.
All references are to 1949 , unless otherwise indicated.
e Weinhardt 's name also appears in the transcript as Windhart and Winehardt.
OERTEL BREWING COMPANY 539
agreement containing the above terms, apparently the Machinists did not insist
upon performance of the installation work at Falls Cities and Fehr and the in-
stallation at those plants was made by an independent contractor employing
members of the AFL, including members of Respondent Carpenters. In any
event Falls Cities and Fehr are not named as respondents in the present case.
Upon receipt of the Machinists' letter in April, Morton immediately forwarded
the same to Oertel. Morton also contacted the business representatives of the
various unions with which Oertel had agreements and inquired as to what action
each would take if a picket was placed at Oertel's plant. The "net result" of
these inquiries, according to Morton, was that "if a picket line was put up they
would not honor it." Sometime in May Oertel began preparations for the in-
stallation of its equipment. Before Oertel hired any employees for this work,
Morton notified the business representatives of the Electricians, Plumbers, Steam-
fitters, and Respondent Carpenters that Oertel contemplated employing members
of the Machinists rather than members of the Carpenters because of its agree-
ment with the Machinists. On May 23, L. E. Hornbeck and T. A. Pitts,' repre-
sentatives of Respondent Carpenters, conferred with Morton and stated that the
Carpenters would place a picket at Oertel's if members of the Machinists were
employed. The following day Morton telephoned Pitts and asked if he would
be willing to arbitrate the dispute which request was refused by Pitts. While
the record is not clear concerning any meetings between representatives of the
Machinists and Morton, obviously such meetings were held, for Morton in re-
porting the dispute to Oertel, by letter dated May 23, stated that after con-
ferring separately with representatives of the Machinists and Carpenters each
Union was still insistent that it be given the work, that one (Carpenters) re-
fused to, meet jointly with the other, that arbitration of the dispute was not
feasible, and that the Union not employed would picket the brewery when work
commenced. Morton concluded his report by suggesting (1) that the work be
given to an independent contractor or (2) by the institution of court proceed-
ings, if appropriate, to determine in advance the question of jurisdiction. Grover
G. Sales testified that he acted as counsel for Oertel in this dispute and conferred
frequently with Pitts and Hornbeck as well as Weinhardt in regard to their
demands. Sales stated that the Carpenters and Machinists would not agree to
arbitrate the matter nor could any agreement be reached in regard to division
of the work. In view of this statement, as well as Morton's report of May 23,
and considering the matter from a "moral and legal standpoint," Sales declared,
"I decided that under the contract of April 1948, extended until July 6, 1949,
that under the terms and the spirit of that contract that I would be doing the
Machinists an injustice if I did not grant them jurisdiction on that work."
Accordingly, Sales advised Weinhardt that "we would give him the work and
hoped he could finish by July 6," but when the contract expired on that day the
Machinists would not be asked to continue to work beyond that date. When
Sales informed Pitts and Hornbeck of his decision to award the work to the
Machinists they stated his decision was wrong and insisted that Oertel engage
an independent contractor, who would employ only members of the Carpenters,
to perform the work. This request was refused by Sales. Thereafter, Sales
urged Oertel "to try to complete the job by July 6, so that there would be no
further issue involved after" that date. Although Sales did not state the date
on which Oertel granted the work to the Machinists, it seems clear from his
testimony that it was sometime between the date of Morton's letter of May 23
and June 3, the date on which the Machinists and Oertel agreed to extend the
1948 agreement until July 6.
I Neither Hornbeck nor Pitts testified at the hearing.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 8, Oertel commenced work on the installation of its equipment.
Following its decision to hire members of the Machinists rather than members
of Respondent Carpenters, Oertel employed four machinists : Three were hired
on June 8 and one on June 21, all of whom were referred to Oertel by the
Machinists. In addition to the machinists, ironworkers, plumbers and pipe
fitters, and electricians were employed on the job.' The plumbers and pipe
fitters and electricians were employed by Schardeim and Link Electric Com-
pany, respectively, independent contractors engaged by Oertel to perform certain
phases of its installation work, while the ironworkers were hired by Oertel.
All of the employees in the above categories were members of their respective
craft unions affiliated with the AFL.
On June 10 Respondent Carpenters, in protest against the hiring of machinists,
placed a picket in front of Oertel's plant, the picket carrying a placard which
stated :
Oertel Brewing Company is unfair to Falls Cities Carpenters District
Council.
Respondent Carpenters continuously maintained a picket at Oertel's until July 7
when, for the reasons stated below, picketing ceased. However, the picket line
was not honored by any of the employees of Oertel, or its independent con-
tractors, and there was no interruption to Oertel's operations, either the brewing
of beer or the installation of its equipment.
As the expiration date of the Machinists' agreement, as extended, drew near,
Attorney Sales kept in "constant touch" with Respondent Oertel concerning
the progress of the work. Sales was also "in daily touch with Mr. Pitts trying
to get him to withdraw the picket line, urging him to withdraw, and assuring
him that on July 6 that I would-Oertel would give any additional work to
complete the job to the Carpenters, or to an independent contractor." Sales
further informed Weinhardt that he could not "protect" the Machinists after
July 6 unless he, Sales, could get the "consent of the AFL Carpenters Union" and
absent such consent he would "instruct Oertels to discontinue the work to the
Machinists." Finally, on July 6 Sales "urged Mr. Pitts for hours, pointing out
there was only a few days left, and asked him not to put me in the position
of calling these men off when they had only a few more days to complete the
work." Pitts, in refusing to accede to Sales' request, declared that Sales "had
been wrong from the beginning" in granting this work to the Machinists even
though Oertel did have an agreement with the Machinists, but after July 6
there was no agreement whatever and therefore the Carpenters were entitled
to perform the work. Although Sales promised Pitts that Oertel would not
negotiate a new agreement with the Machinists providing for the erection of
new machinery and that Oertel would never again "be faced with this issue
and controversy," nevertheless, Pitts remained adamant and refused to permit
the Machinists to complete the job. On the morning of July 6, H. A. Hooe,
representative of the steam fitters or pipe fitters, and H. Hudson, president of
Respondent Council, met with Morton, arrangements for the meeting having been
made by Hooe. Hooe and Hudson, according to Morton, stated that Respondent
Council had held a meeting on the night of July 5, and "had voted to back up"
Respondent Carpenters in its dispute with the Machinists and that they would
not "be responsible for the men [AFL craftsmen] and they would call them
out if something was not done to take the Machinists off" the job. Hudson said
the dispute was discussed with Morton but the meeting was inconclusive
8 The exact number employed in these crafts is not sfated , except that Oertel hired two
ironworkers.
OERTEL BREWING COMPANY 541
since the dispute was a matter for Oertel to decide, not the Association. Appar-
ently, there was no further discussion at this meeting and at the conclusion
thereof Morton immediately called Oertel and reported the substance of the
meeting Later the same day the Association held a regular meeting attended
by representatives of all its members and Morton informed the representatives
of his conversation with Hooe and Hudson that morning. However, the asso-
ciation members did not discuss the subject nor take any action in this respect
because it was a matter to be determined by Oertel. After the meeting Morton
discussed the dispute with J. M. Culp, secretary of Oertel, and its association
representative. Morton then telephoned Hudson and told him that he, Morton,
wanted to confirm the position taken by Hudson and Hooe that morning, to
avoid any misunderstanding, and Morton also informed Hudson that Culp was
listening in on their conversation. The testimony of Morton and Culp concern-
ing this conversation is, in certain respects, conflicting. Thus, Morton stated
that he told Hudson he had to report to Oertel the conversation he had had
that morning with Hudson and Hooe, and Morton reiterated that Respondent
Council had voted to respect the picket line since the Machinists' contract had
expired and that "they [Hudson and Hooe] would not be responsible for their
men that worked at the Oertel Brewery, electricians, steamfitters and plumbers."
Morton declared that Hudson "confirmed" his previous position. Culp testified
that Morton requested Hudson to repeat the conversation they had had that
morning and Culp summarized Hudson's response to be, "that unless that work
was closed down and the machinists laid off that all AFL workers-they wouldn't
be responsible, let's put it that way, for the conduct of the rest of the AFL
workers that were working on the various projects around the brewery." Hudson
could not recall having such a conversation with Morton and Culp. Following
this conversation Culp decided to shut down the installation job and imme-
diately advised Finger, brewmaster at Oertel's, by telephone of his decision.
Finger thereupon told three of the machinists that he had to "close down the
job" and lay them off. One machinist, Douglas, was not working that day and
was informed of his layoff the same evening by a representative of the Machinists.
None of the machinists was reemployed on the installation job and Culp con-
ceded that the quality of the work performed by the machinists had nothing
to do with their layoff. Culp admitted that when the job was shut down
the electricians, pipe fitters, and steam fitters were probably transferred to other
work at the plant, but that the ironworkers were laid off. Despite the action
thus taken by Respondent Oertel with respect to the Machinists, the Carpenters'
picket appeared at the plant the following day, July 7. The same day Culp was
discussing the presence of the picket with another official of Oertel when he
observed Hudson making a purchase of beer at the plant. Culp then approached
Hudson and attempted to discuss the matter with him but Hudson refused to
do so in the absence of representatives of the Carpenters. Hudson thereupon
telephoned Pitts and Hornbeck, and requested them to come to Oertel's for a
meeting, which they did. However, the evidence is hazy concerning the discussion
had at this meeting. Although it is obvious that Culp approached Hudson and
thereafter Pitts and Hornbeck, for the purpose of having the picket removed,
yet Culp, in response to a question as to whether he directed such a request
to the union representatives, testified, "I don't think so, particularly, no. That
might have been in the conversation because ever3body was trying to be a
lawyer that morning. .. ." Again, Culp, when questioned as to whether he
made any inquiry as to why the picket was still present at the plant, replied,
"I suppose that inquiry was made in a general way." Hudson described the
meeting as a "long discussion" and that Pitts, Hornbeck, and officials of Oertel,
11
v
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"thought something could be arranged." In respect to picketing, the parties
stipulated at the hearing that Respondent Carpenters placed a picket at Oertel's
on June 10, because Oertel employed members of the Machinists on' the job
and that a picket remained at the plant until July 7, when he was removed by
Respondent Carpenters. Thereafter, on July 11, Oertel engaged the contracting
firm of Sullivan and Cozart, which employed members of the AFL, to complete
the installation job. Sullivan and Cozart employed the "same crew," i. e., elec-
tricians, ironworkers, steam fitters, and pipe fitters, as had previously worked
on the job, with the exception of the four machinists who were replaced by four
members of Respondent Carpenters. Sullivan and Cozart completed the installa-
tion of the equipment in 6 days.
On July 6 Morton, in writing, informed the Machinists that its contract ex-
pired that day. Morton further advised the Machinists, concerning the nego-
tiations for a new agreement, that the "breweries will definitely not commit
themselves to give your Union exclusive jurisdiction over erection work." There-
after, representatives of the parties met and on August 8, Oertel and the Ma-
chinists executed an agreement which eliminated erection and installation work
from the jurisdiction of the Machinists. The agreement is effective for the period
April 6, 1949, to April 6, 1950, with an automatic renewal clause for 1 year,
and subject to termination or modification by either party upon 60 days' notice
in writing prior to its expiration.
A. The contentions of the parties
The contentions of the respective parties may be summarized as follows :
Respondent Oertel asserts that it granted the installation work to the Ma-
chinists pursuant to the terms of its then existing agreement with the Machinists,
but upon the expiration of the agreement Respondent Oertel, being unable to
secure the consent of Respondent Carpenters to permit the machinists to com-
plete the work, shut down the job and engaged an independent contractor, who
replaced the machinists with members of Respondent Carpenters.
Respondent Association contends that all decisions with respect to the as-
signment of work, the shutdown of the job, and the engagement of an inde-
pendent contractor were made exclusively by Respondent Oertel, not the
Association.
Respondent Council states that it took no part in the dispute and that it
neither authorized nor ratified the purported actions of its president in any
attempts on his part to effectuate a settlement of the matter.
Respondent Carpenters takes the position that traditionally its members were
entitled to perform the insetallation work irrespective of the Machinists' agree-
ment since Respondent Oertel had no qualified Machinists' employees to do this
work and on and after July 6, Respondent Oertel had the right to engage an
independent contractor, who employed its members, to complete the job.
B. Conclusions
The facts substantially are undisputed. As set forth above Respondent Oertel
during April 1949, decided to install new bottling equipment at its plant. The
Machinists demanded that work thereon be given to its members in accordance
with the terms of its existing agreement with Oertel. About the same time Re-
spondent Carpenters, although it had no agreement with Oertel, demanded that
the work be assigned to its members or in the alternative, that Oertel engage
an independent contractor, who would employ members of the Carpenters, to
perform the installation work. Efforts on the part of Oertel to resolve the dis-
OERTEL BREWING COMPANY 543
pute thus arising from the demands through arbitration or division of work
proved futile and each Union made it clear that unless it was awarded the work
it would picket the plant when the installation job commenced. While Re-
spondent Oertel was certainly in an unenviable position in the dispute between
the Machinists and the Carpenters, nevertheless, the attendant circumstances
did not render too difficult its decision as to which of the .Unions should be as-
signed the work. Thus, in April, Oertel had a valid agreement with the Ma-
chinists under which it unquestionably had the right, if not the obligation, to
grant the installation work to members of the Machinists. It is true that this
agreement expired April 6, but this is immaterial since the parties duly ex-
tended the terms thereof until July 6. Further, when the Machinists on April
15, requested Oertel, through the Association, to assign the work to its members,
Morton in the course of his investigation of the dispute was plainly advised
by representatives of the various AFL craft unions that they would not honor
any picket line established at the plant. Accordingly, Respondent Oertel as-
signed the work to the Machinists and thereafter hired four of its members and
commenced the installation of its equipment on June S.
Following its threats to picket the job if its members were not employed
thereon, Respondent Carpenters placed a picket at Oertel's on June 10 and
continuously maintained picketing until July 7. The AFL craft unions in
accordance with the assurances previously made through their representatives
to Morton, as well as all other employees of Oertel, did not respect the picket
line established by the Carpenters and Oertel suffered no interruptions whatso-
ever to its operations. Attorney Sales urged Oertel to make every effort to
complete the job prior to July 6, but when it became evident that this could
not be accomplished, Sales was in daily contact with Pitts attempting to secure
permission from the Carpenters to let the Machinists finish the job. Pitts,
however, refused to grant such permission even though the work was nearly
completed.
1. The activities of Respondent Council
Throughout the period April 15 to July 6, all efforts on the part of the Associa-
tion and Oertel to settle the dispute were made with representatives of the Car-
penters, the Machinists, and the various AFL craft unions. Morton had had con-
siderable experience in negotiating and dealing with these various unions in the
past and undoubtedly was thoroughly familiar with the organizational setup and
function of the particular craft unions as well as the Respondent Council. In the
light of this background, Morton, after stating that he discussed the dispute with
Hudson, whom he called the "head electrician," unequivocally declared that,
up to July 6, he "had no connection or dealings with the Building Trades Council
as such" [Emphasis supplied.] Hudson testified that during June and July
he was president of the Council and also business manager for Local 369,
Electrical Workers Union. Local 369 had one member regularly employed as a
maintenance electrician at Oertel's and when Oertel commenced its installation
job, Link Electric Company, the electrical contractor thereon, employed members
(the number not stated) of Local 369. Plainly, Hudson had knowledge of the
dispute between the Carpenters and the Machinists at an early date and,
admittedly, Hudson knew that the Carpenters maintained a picket at the plant
in June and early July. Hudson further testified neither the members of Local
369 nor any of the other crafts respected the Carpenters' picket line. Indeed
there is no evidence to show that the dispute was even brought to the attention
of the Council until July 5. On the evening of that date Respondent Council
held its regular meeting and the subject of the dispute was brought to the
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attention of the Council by Pitts. The minutes of this meeting were produced
by Hudson and disclose that :
Brother Pitts reported that Falls Cities Carpenters District Council has
placed a picket on the Oertel Brewing Company because the Machinists
are setting up new machinery in the brewery. He stated that the Electrical
workers, Iron workers and others had failed to observe this picket line,
and were working on the job.
According to Hudson, Pitts "wanted support" on behalf of the Carpenters'
picket line and simply made a "statement" to that effect. None of the Council
delegates replied to the request of Pitts because, as Hudson stated, "we do not
recognize a picket line where there is a jurisdictional squabble involved" a and
Pitts "knew it." The Council minutes do not show any motion introduced by
Pitts requesting support of the Carpenters' picket line nor any discussion or
vote by the Council upon the "statement" of Pitts. As appears above , Hudson
and Hooe met with Morton the following morning, July 6, and informed Morton
that the Council had voted to back up the Carpenters and that they would not
be responsible for members of the AFL craft unions crossing the picket line.
Later that day Morton called Hudson, and with Culp listening in, discussed the
position taken by Hudson at the meeting of the same morning. While Morton
stated that Hudson "confirmed" his position that the Council had voted to
support the Carpenters and would not be responsible for members of other crafts
continuing to work, Culp made no mention of any vote or action taken by the
Council in respect to the Carpenters' picket line but testified in substance that
"they wouldn't be responsible . . . for the conduct of other craftsmen" at the
plant. Again, Attorney Sales stated that Hudson called him, at some date
prior to the expiration of the agreement, July 6, and advised him that if the
Carpenters insisted upon being assigned the work he, Hudson, "would respect
the picket line and call out any workers, AFL construction workers under his
jurisdiction." When asked if Hudson mentioned the Council in the course of
this conversation, Sales replied, "I just knew who he was. He didn't have to
mention anything." Further, when the General Counsel propounded the direct
question to Sales if the conversation with Hudson was a "prime factor" in his
final determination to shut down the job, Sales failed to categorically answer
the question although he did review the dispute at some length. Hudson ad-
mitted that he and Hooe generally discussed the dispute with Morton on July
6, but he could not recall the telephone conversation with Morton and Culp
lafe'r the same day. Admittedly, Respondent Council refrained from any par-
ticipation in the dispute from its inception in April until July 5. In this period
all negotiations and efforts to resolve the matter were conducted by representa-
tives of the Carpenters, the Machinists, and Respondents Association and OerteL
There is not only a complete absence of the usual indicia of Council participa-
tion in such matters (see, Los Angeles Building and Construction Trades Council,
AFL, 83 NLRB 477; United Brotherhood of Carpenters and Joiners of America,
Millwright Local No. 1102, et al., 88 NLRB 844; Lloyd A. Fry Roofing Company,
et at. 89 NLRB 854) but affirmatively it is undisputed that the Council never
authorized any of its officers or delegates to take any part therein. Again, the
placard displayed by the Carpenters' picket clearly disclosed that the dispute
was between the Carpenters and Oertel and certainly there was no indication
that the Council in any manner authorized or participated in the picketing. In-
deed, the contrary is true for all members of the AFL craft unions affiliated with
9 Hudson considered this a jurisdictional dispute even though the Machinists is and
was not then affiliated with the AFL.
OERTEL BREWING COMPANY 545
the Council refused to honor the Carpenters ' picket line throughout the entire
time it was established at the plant from June 10 to July 7, and Hudson stated
that it would not have been respected even if maintained subsequent to that
date. In view of these facts it seems unlikely that Hudson would have informed
Morton on July 6 that the Council had voted to support the Carpenters in its
dispute and in the light of the testimony of Morton and Culp bearing upon their
conversation with Hudson , the undersigned is not convinced that Hudson made
such a declaration. This conclusion is further supported by the conduct of
Hudson the following day when he met Culp at the plant while making a pur-
chase of beer. On this occasion when Culp sought to discuss the presence of
the Carpenters ' picket with Hudson, the latter refused to do so in the absence
of representatives of the Carpenters and thereupon immediately telephoned
Pitts and Hornbeck to come to Oertel's, which they did. While Culp's testimony
is hazy and inconclusive as to just what transpired at this meeting , the fact
that Hudson declined to even discuss the continued presence of the picket with
Culp unless Pitts and Hornbeck were present, demonstrates to the undersigned
that Hudson was well aware that he had no authority to act on behalf of the
Council concerning the removal of the picket and refused to become involved in
the matter . The mere fact that Hudson was present during this conversation
is, in the opinion of the undersigned , of no particular significance . This evidence
is plainly insufficient to warrant even an inference that Respondent Council
authorized or ratified the action of the Carpenters in placing a picket at Oertel's
or that the Council took any steps whatsoever to have the picket withdrawn.
Further, the parties stipulated that on June 10, Respondent Carpenters placed
a picket at Oertel's because it employed members of the Machinists on the job
and maintained such picket until July 7, when he was removed by Respondent
Carpenters . The only other evidence adduced by the General Counsel relating
to council participation in the dispute is the statement attributed to Hudson
on July 6 by Morton and Culp that "they" would not be responsible for mem-
bers of the AFL craft union continuing to work at the plant while the Carpenters
maintained its picket line. The undersigned entertains no doubts that Hudson
made a statement to that effect to Morton and Culp on July 6. However , it must
be remembered that Hudson and Hooe met with Morton on the morning of that
day and informed Morton they could not be responsible for the continued em-
ployment of "our members" on the job . Morton admitted that he knew and
understood the statement by Hudson did not mean that "Council members would
be pulled out of the brewery," but that the phrase "our men" was limited and
restricted to members of the crafts represented by Hudson and Hooe, the elec-
tricians , and plumbers and steam fitters, respectively . Nor does the testimony of
Sales indicate that Hudson was acting on behalf of the Council . Indeed, Sales
in response to the direct question propounded by the General Counsel , whether
Hudson mentioned the Council to him about July 6, stated, "I just knew who he
was. He didn 't have to mention anything ." Obviously , this assumption on the
part of Sales carries no weight and is entitled to no consideration . Certainly,
under these circumstances it cannot be said that Respondent Council "attempted
to cause and thereafter caused" Respondents Oertel and Association to discharge
the machinists as alleged in the complaint . For the reasons set forth above,
it is the finding and conclusion of the undersigned that the Council did not
authorize or ratify the action of Respondent Carpenters in picketing Respondent
Oertel's plant, nor did the Council support the Carpenters in its dispute with
Oertel or secure the removal of Respondent Carpenters' picket at the plant.
Therefore , the evidence adduced by the General Counsel fails to sustain the al-
legation of the complaint that Respondent Council engaged in unfair labor
943732-51-36
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices in the manner described therein. The motion to dismiss the complaint
made by Respondent Council is, accordingly, granted.
2. The activities of Respondent Association
The evidence reveals that the Association has in the past conducted collective
bargaining negotiations on behalf of its members with labor organizations but
when agreement was reached between its members and the particular union, a
single agreement was signed by each of its members and enforcement of the
terms of the contract was left to the individual member. Respondent Associa-
tion was injected into the present dispute at an early date and Morton, its secre-
tary, actively participated in negotiations and conferences with representatives
of both Oei tel and various unions in an attempt to amicably resolve the matter.
In accordance with association policy, Morton had no authority to settle the
dispute since decision relating to such matters was vested exclusively in its re-
spective members, in this case Oertel. Morton, of course, kept Oertel advised
concerning his meetings with representatives of the Unions. In the opinion of the
undersigned, Respondent Association, through Morton, did act for and on behalf
of Respondent Oertel in this matter. However, the undersigned is of the opinion
that the Association has not engaged in any unfair labor practices. The com-
plaint alleges on or about July 6, Oertel "and the Association, by their officers
and agents, discharged the employees .. . [named therein] and thereafter
failed and refused to reinstate said employees," in violation of Section 8 (a) (3)
and (1) of the Act. The undisputed evidence shows that the decision to shut
down the installation job and discharge the machinists was made exclusively by
representatives of Respondent Oertel, namely, Sales and Culp. Further, there
is no evidence indicating that the Association advised or counseled Respondent
Oertel in reaching its decision to discharge the machinists or that it recommended
the discharge of these employees. Since the General Counsel failed to adduce
any evidence to support the allegations of the complaint that the Association
had engaged in and was engaging in any unfair labor practices, the motion to
dismiss the complaint made by Respondent Association is granted.
3. The activities of Respondents Oertel and Carpenters
As previously stated, Sales testified that Oertel decided to award the work
to the Machinists under the terms of its then existing agreement and refused to
accede to the demands of the Carpenters that its members perform the work
or that the job be given to an independent contractor who, in turn, would employ
members of the Carpenters. Accordingly, Oertel employed four machinists tor
the installation job. The Carpenters thereafter continuously picketed the plant
from June 10 to July 7, and removed its pickets only when Respondent Oertel
closed down the entire installation job and discharged the machinists. Oertel
thereupon engaged an independent contractor, Sullivan and Cozart, to complete
the installation work. Sullivan and Cozart did complete the job using the "same
crew" that worked thereon prior to July 6, with the exception of the four ma-
chinists, who were replaced by four members of the Carpenters. The Respondent
Oertel seeks to justify its discharge of the machinists on the grounds that its
contract with the Machinists expired on July 6 and, therefore, it was under no
obligation to continue to employ any members thereof. The testimony of
Sales and Culp plainly refutes this contention. Sales stated that prior to
July 6 he "attempted to persuade the Carpenters to let them [the Machinists]
finish the work. The Carpenters were entitled to the work and told them to
let the work to an independent contractor." Culp explained that Oertel was
OERTEL BREWING COMPANY 547
desirous of having the Machinists complete the work and "we were hoping that
the machinists were so far along with the job that two or three days grace
would have been given by all concerned and the job would have finished... ."
Moreover , the Respondent Oertel "was very much upset" by the Carpenters ' picket
line and was constantly attempting to have it removed because it constituted
a threat to its building construction projects then in progress at the plant, the
work thereon being performed by members of various AFL craft unions. The
Respondent Oertel also feared that members of the Bartenders Union, AFL,
might support the Carpenters in this dispute and refuse to purchase its beer.
The above evidence conclusively shows and the undersigned finds, that the
Respondent Oertel did not discharge its machinist employees by reason of the
expiration of its agreement with the Machinists , but yielded to the demands
of the Carpenters , enforced by its picket line, that the machinist employees,
who were members of the Machinists , be discharged for that reason and be
replaced by members of the Carpenters or that Oertel , after discharging the
machinists , engage an independent contractor who would employ members of
the Carpenters . Section 8 ( a) (3) of the Act declares it an unfair labor
practice for an employer to encourage or discourage membership in any labor
organization by discrimination in regard to the hire or tenure of employment,
or any term or condition of employment :
Provided , That nothing in this Act . . . shall preclude an employer from
making an agreement with a labor organization ( not established, main-
tained or assisted by any action defined in section 8 (a) of this Act as an
unfair labor practice) to require as a condition of employment membership
therein on or after the thirtieth day following the beginning of such
employment or the effective date of such agreement , whichever is the later ;
(i) if such labor organization is the representative of the employees as
provided in section 9 (a), in the appropriate collective bargaining unit
covered by such agreement when made ; and (ii ) if, following the most
recent election held as provided in section 9 (e) the Board shall,have
certified that at least a majority of the employees eligible to vote in such
election have voted to authorize such labor organization to make such
an agreement : .. .
Thus, it is plain that the Respondent Oertel having employed four members
of the Machinists for its installation job could not thereafter discharge these
employees at the insistence of the Respondent Carpenters because of their
nonmembership therein, irrespective of whether the Machinists ' agreement was
still effective or had expired , in the absence - of a contract with the Carpenters
made in conformity with the provisions of Section 8 (a) (3) of the Act. It is
undisputed , and the undersigned finds, that there was no contract in existence
between Respondent Oertel and Respondent Carpenters which protected the
discharges , and that by discharging the machinists , Robert L. Crutcher, James
W. Douglas , Ralph W. Ohlman, and R. G. Thompson , on July 6, 1949 , Respondent
Oertel violated Section 8 ( a) (3) of the Act . ( Lloyd A. Pry Roofing Company,
et al., 89 NLRB 854.)
It is further found that by the discharge of Robert L. Crutcher , James W.
Douglas, Ralph W. Ohlman, and It. G. Thompson , on July 6, 1949, the Respondent
Oertel has interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act , thereby violating Section 8 (a)
(1) of the Act.
Section 8 (b) (2) of the Act provides that it shall be an unfair labor practice
for a labor organization or its agents , "to cause or attempt to cause an employer
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to discriminate against an employee in violation of Section 8 (a) (3). . .."
The evidence clearly shows, and the undersigned finds, that Respondent Car-
penters demanded that Oertel employ its members on the installation job rather
than members of the Machinists and threatened to picket the plant if Oertel
refused to accede to this dbmand. Thereafter, when Oertel employed members
of the Machinists to perform this work Respondent Carpenters immediately
placed a picket line at the plant and continuously maintained the same until
Respondent Oertel discharged the machinists and replaced them with members
of the Carpenters. By thus attempting to cause and causing Respondent
Oertel to discharge Robert L. Crutcher, James W. Douglas, Ralph W. Ohlman,
and R. G. Thompson, on July 6, 1949, by reason of their membership in the
Machinists and because of their nonmembership in the Carpenters in violation
of Section 8 (a) (3), the Respondent Carpenters had violated Section 8 (b)
(2) of the Act. (Lloyd A. Fry Roofing Company, et at., supra.)
Having found that by causing the Respondent Oertel to discriminatorily dis-
charge the machinists, it would ordinarily follow that Respondent Carpenters
restrained and coerced the machinists in the exercise of the rights guaranteed
in Section 7, thereby violating Section 8 (b) (1) (A) of the Act. (Union
Starch and Refining Company, 87 NLRB No. 137.) However, the complaint does
not allege a violation of Section 8 (b) (1) (A), so accordingly, the undersigned
makes no finding or recommendations in this respect.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Oertel, set forth in Section III, above, occurring
in connection with the business operations of Respondent Oertel, set forth in
Section I, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents Oertel and Carpenters have engaged in unfair
labor practices, the undersigned will recommend that they, and each of them,
cease and desist therefrom and take the affirmative action set forth below
which the undersigned finds will effectuate the policies of the Act.
Since it has been found that Respondent Carpenters attempted to cause and
caused Respondent Oertel to discriminatorily discharge Robert L. Crutcher,
James W. Douglas, Ralph W. Ohlman, and R G. Thompson on July 6, 1949, for
the reason that said employees were members of the Machinists and were not
members of the Carpenters, the undersigned will recommend that Respondent
Oertel make said employees, and each of them, whole for any loss of pay each
may have suffered by reason of such discrimination by payment to him of a
sum of money equal to that he normally would have earned as wages from the
date of such discriminatory discharge to the date which the employment of
each of said employees would have been terminated, absent discrimination.
Since it has been found that by such discrimination the Respondent Oertel has
violated Section 8 (a) (3) and Section 8 (a) (1) of the Act and the Respondent
Carpenters has violated Section 8 (b) (2) of the Act, the undersigned will rec-
ommend that Respondents Oertel and Carpenters, jointly and severally make the
above-named employees whole in the manner above described, less their net earn-
ings 10 during the period of such discrimination.
10 See Crossett Lumber Company , 8 NLRB 440; Republic Steel Corp. V. N. L. R. B.,
311 U. S. 7.
DEENA PRODUCTS COMPANY 549
Upon the basis of the foregoing findings of-fact and upon the entire record in
the case, the undersigned makes the following:
CONCLU13ION13 OF LAW
1. District No. 27, International Association of Machinists, Louisville Build-
ing & Construction Trades Council, and Falls Cities Carpenters District Council
of the United Brotherhood of Carpenters and Joiners of America, AFL, are
labor organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire or tenure of employment or any
term or condition of employment to encourage or discourage membership in any
labor organization of Robert L. Crutcher, James W. Douglas, Ralph W. Ohlman,
and R. G. Thompson, thereby encouraging membership in Falls Cities Carpenters
District Council of the United Brotherhood of Carpenters and Joiners of
America, AFL, Respondent Oertel Brewing Company has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
3. By said conduct Respondent Oertel Brewing Company interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
4. By causing Respondent Oertel Brewing Company to discriminate against
Robert L. Crutcher, James W. Douglas, Ralph W. Ohlman, and R. G. Thompson
in violation of Section 8 (a) (3) of the Act, Respondent Falls Cities Carpenters
District Council of the United Brotherhood of Carpenters and Joiners of
America, AFL, has violated Section 8 (b) (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
DEENA PRODUCTS COMPANY and UNITED SERVICE EMPLOYEES UNION,
LOCAL 329, OF THE BUILDING SERVICE EMPLOYEES INTERNATIONAL
UNION, AFFILIATED WITH TILE A. F. L. Case No. 13-CA-241.
March 1, 1951
Decision and Order
On October 31, 1950, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto.- The Trial Examiner also found
'The Respondent contends that the Trial Examiner is without authority to find a
violation of Section 8 (a) (3) of the Act as to certain employees named in the complaint
because they are not named in the original or amended charge. For the reasons stated
in Catlaey Lumber Company, 86 NLRB 157, enfd. 185 F. 2d 1021 (C. A. 5, Jan. 22, 1951),
we find this contention to be without merit.
93 NLRB No. 77.
1