Sterling Furniture Co.

National Labor Relations Board - Board Decisions

Apr 27, 1951

94 N.L.R.B. 32 (N.L.R.B. 1951)

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Regional Director states that only after due consideration of
all the facts did he decide that the election should be conducted by
mail. Nothing has been offered to persuade the Board that the Re-
gional Director abused his discretion.
The Employer in its exceptions relied on substantially the same
grounds set forth in its objections. Having considered the entire
record in the case, we accept the Regional Director's findings. We
find, therefore, that the objections filed by the Employer raise no
substantial and material issues with respect to the conduct of the
election, and they are hereby overruled.
Certification of Representatives
IT Is HEREBY CERTIFIED that the Detroit Chapter, National Associa-
tion of Broadcast Engineers and Technicians (Independent) has been
designated and selected by a majority of the Employer's radio engi-
neers and technicians who operate those facilities of the engineering
department of Harold F. Gross d/b/a Southwestern Broadcasting
Company used in the transmission, conversion, and conduction of
audio, FMVI, and radio frequencies for use in broadcast, rebroadcast,
audition, rehearsal, recording, and "on the air playback" at its -radio
station WGFG, Kalamazoo, Michigan, excluding all clerical help,
announcers, all other employees, and all supervisors as defined m the
Act as their representative for the purposes of collective bargaining
and that pursuant to Section 9 (a) of the Act, the aforesaid labor
organization, is the exclusive representative of all such employees for
the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
MEMBERS HOUSTON and REYNOLDS took no part in the considera-
tion of the above Supplemental Decision and Certification of
Representatives.
STERLING FURNITURE COMPANY and CHARLES O. BARNES
CARPET, LINOLEUM & SOFT TILE WORKERS, LOCAL No. 1235 and CHARLES
0. BARNES. Cases Nos. 20-CA-350 and 20-CB-109. April 27,
1951
Decision and Order
On November 7, 1950, Trial Examiner Hamilton Gardner issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent Company and the Respondent Union had engaged in
and were engaging in certain unfair labor practices and recommend-
ing that they cease and desist therefrom and take certain affirmative
94 NLRB No. 20.
STERLING FURNITURE COMPANY 33
action as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondents and Retail Furniture Associa-
tion of California, San Francisco, Unit, hereinafter referred to as
the Association, which intervened in the proceeding,' filed excep-
tions to the Intermediate Report and the Respondents filed briefs in
support of their exceptions.
The Board 2 has considered the Intermediate Report, the exceptions
Rnd briefs, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the exceptions, modifications, and additions set forth below.
1. The Trial Examiner found, and we agree, that the Respondent
Company violated Section 8 (a) (1), (2), and (3) of the Act. It is
not clear, however, to what extent the Trial Examiner, in arriving at
this conclusion, relied on the execution by the Respondent Union and
the Association of a contract containing an unlawful union-security
provision. Although the Respondent Company was not a signatory
to this contract, the Association represented the Respondent Company,
among other employers, in the negotiation and execution of the con-
tract. However, the complaint alleged merely the maintenance and
enforcement of the contract, and not the execution of the contract, as
violative of the Act. Accordingly, we do not predicate our findings
upon-the execution of the contract, but find that by its maintenance
and enforcement of this contract, the Respondent Company restrained
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, in violation of Section 8 (a) (1) of the Act. Moreover, by
its maintenance of the contract, the Respondent Company lent its sup-
port to the Respondent Union in recruiting and maintaining mnem-
bership, in violation of Section 8 (a) (2) of the Act, as well as
Section 8 (a) (1) of the Act.' Furthermore, by discriminating in
regard to the hire and tenure of employment of Charles O. Barnes,
pursuant to the illegal provisions of the contract, the Respondent
Company violated Section 8 (a) (3) of the Act.'
The effect of the Respondent Company's violation of Section 8 (a)
(2) of the Act would not be eradicated merely by deleting the illegal
provisions from the contract and permitting the Respondent Union
to continue to enjoy a representative status strengthened by virtue of
the Respondent Company's illegal assistance. Accordingly, in order
i In addition to the reasons cited by the Trial Examiner , the intervention of the
Association , which was opposed by the Respondent Union , was proper under Section 10
(b) of the Act.
2 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
[Members Houston, Murdock, and Stiles]
3 Julius Resnick , Inc , 86 NLRB 38.
4 Clara -Val Packing Company, 87 NLRB 703, of. Pacific Maritime Association, 89
NLRB 894.
953841-52-vol 94-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to effectuate the purposes and policies of the Act, we shall order the
Respondent Company to withdraw recognition from the Respondent
Union, and to cease giving effect to the contract of October 15, 1949,
between the Respondent Union and the Association, or to any modifi-
cation, extension, supplement, or renewal thereof, unless and until the
Respondent Union has been certified by the Board in an appropriate
unit.-' Nothing in our Order, however, shall be deemed to require the
Respondent Company to abandon those wage, hour, seniority, or other
substantive features of its relations with its employees, established in
performance of said contract, or to prejudice the assertion by em-
ployees of any rights they may have under such agreements.
2. The Trial Examiner found, and we agree, that the Respondent
Union violated Section 8 (b) (2) of the Act. We base our finding
on the fact that the Union maintained and enforced its illegal con-
tract with the Association, with regard to the Respondent Company,
and that pursuant thereto it caused the Respondent Company to dis-
criminate against Charles O. Barnes in violation of Section 8 (a) (3)
of the Act 6 We do not, however, adopt the Trial Examiner's com-
ments regarding the effect of the tender or nontender of dues by Barnes
as a defense herein by the Respondent Union. The record is clear
that no union-authorization election pursuant to Section 9 (e) of the
Act has been conducted among the Respondent's employees. Barnes'
discharge could not, therefore, in any event, come within the provisos
of Section 8 (a) (3). In these circumstances, the question of Barnes'
willingness or refusal to tender dues to the Respondent Union is im-
material. For the foregoing reasons, among others, we also find it
unnecessary to consider the legality of the Respondent Union's grant-
ing or withdrawal of union membership or work permits,' and do not
adopt the Trial Examiner's conclusions or recommendations in this
regard.'
The Remedy
The General Counsel has excepted to the Trial Examiner's failure
to recommend that the Board's Order be directed against the Associa-
tion. However, no charge was filed herein against the Association or
the companies, other than Sterling, on whose behalf the Association
executed the contract herein. As noted by the Trial Examiner, the
5In its exceptions and brief , the Respondent Union alleges that as there was no rival
union in the plant, the Board should not require the Company to withdraw recognition
of the Union until certified by the Board. We find no merit in this contention as Section 7
of the Act guarantees to employees the right to refrain from any or all concerted activity,
except to the extent that such right may be affected by the provisos of Section 8 (a) (3).
8 The complaint did not allege the execution of the contract by the Respondent Union
as a violation of the Act.
Sub Grade Engineering Company, 93 NLRB 406.
The complaint did not alle°e that the execution or enforcement of the contract by
the Respondent Union violated Section 8 (b) (1) (A). Accordingly, we deem it unneces-
sary to pass upon that issue in this proceeding.
STERLING FURNITURE COMPANY 35
complaint was not amended to include the Association as a party re-
spondent. We shall therefore not adopt the Trial Examiner's con-
clusion that the Association violated Section 8 (a) (1), (2), and (3)
of the Act, or his finding that the Respondent Union violated Section
8 (b) (2) by causing or attempting to cause the Association to violate
Section 8 (a) (3) of the Act.
The General Counsel argues that by directing the Respondent Com-
pany to withdraw recognition from the Respondent Union until cer-
tified by the Board, without also so directing the Association, the
Board would, in effect, withdraw the Respondent Company from the
alleged appropriate multiemployer unit. We do not agree. We are
not, in this proceeding, concerned with the determination of unit
questions.
Order
Upon the basis of the entire record in these cases, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that :
1. The Respondent Sterling Furniture Company, San Francisco,
California, its officers, agents, successors, and assigns, shall :
a. Cease and desist from :
(1) Recognizing Carpet, Linoleum & Soft Tile Workers, Local
No. 1235, or any successor thereto, as the representative of any em-
ployees at its San Francisco store, for the purposes of dealing with
the Respondent Company concerning grievances, labor disputes,
wages, rates of pay, hours of work, or other conditions of employment,
unless and until said organization shall have been certified by the
National Labor Relations Board.
(2) Performing or giving effect to the contract of October 15, 1949,
between Retail Furniture Association of California, San Francisco
Unit, of which the Respondent Company is a constituent member, and
Carpet, Linoleum & Soft Tile Workers, Local No. 1235, covering the
employees of the Respondent Company's San Francisco store, or to
any extension, renewal, modification, supplement, or superseding
agreement; or to any other contract, agreement, or understanding
covering such employees and entered into with said Union relating
to grievances, labor disputes, wages, rates of pay, hours of work, or
other conditions of employment, unless and until said Union shall
have been certified by the National Labor Relations Board.
(3) Encouraging membership in the Respondent Union, or in any
other labor organization, by discriminatorily discharging, refusing to
reinstate, or hiring, or by discriminating in regard to the hire or tenure
of employment of, any employees of its San Francisco store because of
their union membership or nonmembership in Carpet, Linoleum &
Soft Tile Workers, Local No. 1235, or any other labor organization.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to fora i
labor organizations, to join or assist the Respondent Union or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which we find will effec-
tuate the policies of the Act :
(1) Withdraw and withhold all recognition from Carpet, Lino-
leum & Soft Tile Workers, Local No. 1235, as the representative of
any employees of the Respondent Company's store at San Francisco,
California, for the purposes of dealing with the Respondent Company
concerning grievances, labor disputes, wages, rates of pay, hours of
work, or other conditions of employment, unless and until said Union
shall have been certified by the National Labor Relations Board.
(2) Offer to Charles O. Barnes immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges.
(3) Post at its store at San Francisco, California, copies of the
notice attached hereto as Appendix A.9 Copies of said notice, to be
furnished by the Regional Director for the Twentieth Region, shall,
after being duly signed by the Respondent Company's representative,
be posted by the Respondent Company immediately upon receipt
thereof, and be maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall be taken
by the Respondent Company to insure that said notices are not altered,
defaced, or covered by any other material.
(4) Upon request make available to the Board or its. agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of back pay due and the right of
reinstatement under the terms of this Order.
(5) 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.
9 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."
STERLING FURNITURE COMPANY 37
2. The Respondent, Carpet, Linoleum & Soft Tile Workers, Local
No. 1235, its officers, representatives, agents, successors, and assigns,
shall:
a. Cease and desist from :
(1) Performing or giving effect to its contract of October 15, 1949,
with Retail Furniture Association of California, San Francisco Unit,
insofar as it affects employees of the Respondent Company, or to the
clauses of any agreement with the Respondent Company, or any other
employer, which requires employees to join, or maintain their mem-
bership in, the Respondent Union as a condition of employment, unless
such agreement has been authorized as provided in the Act.
(2) In any other manner causing or attempting to cause the Re-
spondent Company, its officers, agents, successors, or assigns, or any
other employer, to discriminate against any employee in violation of
Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Post at its offices and meeting hall in San Francisco, Cali-
fornia, and wherever notices to its members are customarily posted,
copies of the notice attached hereto and marked Appendix B.1°
Copies of said notice, to be furnished by the Regional Director for
the Twentieth Region, shall, after being duly signed by the Re-
spondent Union's official representative, be posted by it immediately
upon receipt thereof, and maintained by it for a period of sixty (60)
consecutive clays thereafter. Reasonable steps shall he taken by the
Respondent Union to insure that said notices are not altered, defaced,
or covered by any other material.
(2) Mail to the Regional Director for the Twentieth Region signed
copies of the notice attached hereto and marked Appendix B for
posting, the Respondent Company willing, at the Respondent Com-
pany's store, for sixty (60) consecutive clays, in places where notices
to employees are customarily posted. Copies of said notice, to be
furnished by the Regional Director for the Twentieth Region, shall,
after being duly signed by the Respondent Union's representatives,
be forthwith returned to said Regional Director for such posting.
(3) 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.
3. The Respondents Sterling Fuuniture Company, its officers, agents,
successors, and assigns, and Carpet, Linoleum & Soft Tile Workers,
Local No. 1235, its officers, representatives, agents, successors, and
assigns, shall jointly and severally make whole Charles O. Barnes
10 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 "
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any loss of pay he may have suffered because of the discrimination
against him , in the manner set forth in Section V of the Intermediate
Report entitled "The remedy."
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 recognize CARPET, LINOLEUM & SOFT TILE_WORK-
ERS, LOCAL No. 1235, or any successor thereto, as the representative
of any employee at our San Francisco store, for the purposes of
dealing with this Company concerning grievances , labor disputes,
wages, rates of pay, hours of work, or other conditions of em-
ployment, unless and until said union shall have been certified
by the National Labor Relations Board.
WE WILL NOT perform or give effect to the contract of October
15, 1949, between Retail Furniture Association of California, San
Francisco Unit, of which this company is a constituent member,
and CARPET, LINOLEUM & SOFT TILE WORKERS, LOCAL No. 1235,
covering the employees of our San Francisco store, or to any
modification, extension, supplement, or renewal thereof, or to
any other contract, agreement, or understanding covering such
employees and entered into with said union relating to grievances,
labor disputes, wages, rates of pay,'hours of work, or other con-
ditions of employment, unless and until said union shall have
been certified by the National Labor Relations Board.
WE WILL NOT encourage membership in the above-named union,
or in any other labor organization, by discriminatorily discharg-
ing, refusing to reinstate, or hiring, or by discriminating in regard
to the hire or tenure of employment of any employees of our San
Francisco store because of their union membership or nonmem-
bership in the above-named union, or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form labor organizations, to join or assist the above-
named union or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from
avy or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
STERLING FURNITURE COMPANY 39
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the National Labor Relations Act.
WE WILL withdraw and withhold, all recognition from CARPET,
LINOLEUM & SOFT TILE WORKERS, LOCAL No. 1235, as the repre-
sentative of any employees of our store at San Francisco, Cal-
ifornia, for the purposes of dealing with this company concern-
ing grievances, labor disputes, wages, rates of pay, hours of work,
or other conditions of employment, unless and until said union
shall have been certified by the National Labor Relations Board.
WE wuu,T. offer to Charles O. Barnes immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to his seniority or other rights and privileges, and
jointly and severally with CARPET, LINOLEUM & SOFT TILE
WORKERS, LOCAL No. 1235, make him whole for any loss of pay
suffered as a result of the discrimination against him.
All our employees are free to become or remain members of the
above-named union or any other labor organization, 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 National Labor Relations Act.
STERLING FURNITURE 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 CARPET, LINOLEUM & SOFT TILE WORKERS,
LOCAL No. 1235, AND TO STERLING FURNITURE COMPANY AND ITS
EMPLOYEES IN ITS SAN FRANCISCO, CALIFORNIA, STORE :
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 perform or give effect to our contract of October
15, 1949, with RETAIL FURNITURE ASSOCIATION OF CALIFORNIA, SAN
FRANCISCO UNIT, insofar as it affects employees of the STERLING
FURNITURE COMPANY, or to the clauses of any agreement with the
STERLING FURNITURE COMPANY, or any other employer, which
requires employees to join or maintain their membership in the
union as a condition of employment, unless such agreement has
been authorized as provided in the National Labor Relations Act.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner cause or attempt to cause.
STERLING FURNITURE COMPANY, its officers, agents, successors, or
assigns, or any other employer, to discriminate against any em-
ployee in violation of Section 8 (a) (3) of the National Labor
Relations Act.
IVE WILL, jointly and severally with STERLING FURNITURE COM-
PANY, make Charles 0. Barnes whole for any loss of pay suffered
because of the discrimination against him.
CARPET, LINOLEUM & SOFT TILE
WORKERS LOCAL No. 1235
(Labor Organization)
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
Nathan R. Berke , Esq., for the General Counsel.
J. Paul St. Sure , Esq., San Francisco , Calif, for the Respondent Company.
Watson A. Garoni , Esq, and Mr. George A. Wanuch, San Francisco , Calif., for
the Respondent Union.
STATEMENT OF THE CASE
These cases arose upon separate amended charges filed on March 29, 1950, by
Charles O. Barnes against Sterling Furniture Company and Carpet, Linoleum &
Soft Tile Workers, Local No. 1235, respectively. Upon the basis of such charges,
the General Counsel of the National Labor Relations Board, acting through the
Regional Director of the Twentieth Region (San Francisco, California), issued
an order on June 8, 1950, consolidating the two cases for hewing and on the
same day issued a complaint against the named Company and the named union'
This alleged that the Company had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1), (2),
and (3) of the Act; that-the Union had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act; and that
all such unfair labor practices were in violation of Section 2 (6) and (7) of
the Act. Copies of the complaint and of the charges upon which it was based,
together with notice of hearing thereon, were served upon the Respondent Com-
pany and the Respondent Union.
The consolidated complaint alleged in substance that- (1) On July 31, 1947,
and since, the Company and the Union have enforced a collective bargaining
agreement "which provides, among other things, that employees as a condition
of employment shall immediately become and remain members of the Respondent
Union"; (2) no election has ever been held under Section 9 (e) of the Act;
I References in this Report will be• The General Counsel and his representative at the
hearing, as the General Counsel , Sterling Furnitnie Company, as the Respondent Company
or the Company; Carpet, Linoleum & Soft Tile Workers, Local No. 1235, as the Respondent
Union or the Union, the National Labor Relations Board, as the Board, the National
Labor Relations Act, as amended by the Labor Management Relations Act, as the Act
(61 Stat 136) ; the Retail Furniture Association of California, San Francisco Unit, as
the Association.
STERLING FURNITURE COMPANY 41
(3) the Company engaged in unfair labor practices when, after employing
Charles O. Barnes on October 20, 1949, it discharged him on October 31, 1049,
at the demand of the Union because of his failure to become a member of the
Union and has since refused to rehire him, and has supported the Union by
enforcing the agreement above mentioned, all in violation of Section 8 (a)
(1), (2), and (3) of the Act, the Union engaged in unfair labor practices on
October 29, 1949, and thereafter by refusing to grant Barnes membership "so that
he ma} continue in the employ of Respondent Company," notwithstanding he
,,was willing to pay" the required dues, all in violation of Section 8 (b) (2) of
the Act ; and thereby the Company and the Union had dept ived Barnes of the
exercise of the rights guaranteed in Section 7 of the Act
By its amended answer the Union denied all allegations of the complaint and
as a separate defense alleged that Baines "voluntarily quit his employment" at
the Company The separate answer of the Company is in the nature of a general
denial.
Pursuant to notice, a hearing was held at San Francisco, California, on August
22 and 23, 1950, before Hamilton Gardner, the undersigned Trial Examiner,
duly designated by the Chief Tiial Examiner. The General Counsel, the Com-
pany, and the Union were all represented by counsel. Full opportunity was
presented all parties to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues Counsel tor the Company, who like-
wise was counsel for the Association, relying on Rule 24 of the Rules of Civil
Procedii e for the District Coui is of the United States and on Section 203 29
of the Rules and Regulations of the Board, Series 5 as amended, moved to inter-
vene the Retail Ftiirniture Association of California, San Francisco Unit, of
which the Respondent Company is a member. This is a voluntary, nonprofit
association organized under the laws of the State of California. After argument
and over the objection of the Union, this motion was granted and said Associa-
tion was made a patty to the Iii oceeding All parties were accorded opportu-
nity to present oral argument at the opening and close of the hearing, but
declined. The parties were likewise advised of their right to file proposed find-
ings of tact, conclusions of law, and briefs. Only the General Counsel filed a
brief.
Upon the entire record in the case, I make the following :
FINDINGS or FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
Sterling Furniture Company is a corporation of the State of California en-
gaged in the retail furniture business . It operates stores at San Francisco,
Oakland, and Vallejo, but only the first named is involved in this case. These
establishments sell furniture and related articles, including carpets, linoleum,
and tile. Part of the Company's service consists of installing these three articles
in the properties of its customers. In general the San Francisco store accounts
for about 65 percent of the total volume of sales and purchases of the Company.
During 1949 the total purchases of the Company approximated $6,200,000, of
which 60 percent was shipped from points outside California. In the same
period total sales reached roughly $10,300,000, of which 1 to 2 percent was shipped
to buyers outside the State. '
The Company's answer does not deny that it is engaged in interstate commerce.
I find that the Company is engaged in commerce within the meaning of the
Act.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
It was stipulated in open hearing among counsel for all parties that Carpet,
Linoleum & Soft Tile Workers, Local No. 1235, is a labor organization within
the meaning of Section 2 (5) of the Act. It is so found.
III. THE UNFAIR LABOR PRACTICES INVOLVED
A. The over-all background
Certain important facts in this case are undisputed. They will be here set
forth as preliminary to the controverted issues.
1. The collective bargaining agreement
The proceeding turns in part around a collective bargaining agreement re-
ceived in evidence and in file as an exhibit. It bears date of October 15, 1949.
The parties are Retail Furniture Association of California, San Francisco Unit,
and the Respondent Union. The Association consists of eight retail furniture
concerns in San Francisco, including Sterling Furniture Company As noted
above, the Association, on motion, was allowed to intervene as a party to this
action. The agreement provides in part:
Section 2.-All work performed for, contracted or subcontracted by the
Employers, covered by the above jurisdiction shall be prepared and installed
by members holding a paid up card or permit card of Local Union No. 1235,
except where the laws of the Brotherhood of Painters, Decorators and Paper
Hangers of America make other requirements. In connection with the hiring
of employees Local Union No. 1235 agrees at all times to maintain adequate
telephone service so that the officers of the Union shall be available on
call, or messages can be left for them.to which they agree promptly to
respond
If at any time the Union is unable to furnish necessary mechanics then
the Union agrees to issue work permits to mechanics of other American
Federation of Labor crafts whose services shall be terminated when mem-
bers of the Union are available, and the Union further agrees to issue
permits to prospective apprentices (preferably in the employ of the Em-
ployers) to work on Contract jobs only. Such apprentices to whom permits
have been issued shall not be paid less than the minimum apprentice wage
rate, and their services shall terminate when journeymen are available.
Where in this agreement the word "mechanic" or "sewers" is used
this refers to and embraces only members of Carpet, Linoleum and Soft
Tile Layers Local No. 1235.
When requested by the Employer, cut linoleum, carpets and all other
floor covering, sand bags and other heavy equipment may be carried by
Union Laborers, members of the American Federation of Labor, to the
floor or section of the building where materials ate to be installed by
mechanics.
Section 3.-The Union agrees that the Employer is in no wise bound
to keep in his employ any mechanic who proves himself incompetent and/or
unsatisfactory in the branch of trade for which he or she is hired. When
an employee is hired and is found to. be incompetent or unsatisfactory, he
or she, upon his or her discharge shall be paid for the actual time worked.
Section 4.-Trade practice. (a) A concern that gives any part of its
floor covering work to non-union mechanics or non-union work rooms shall
be considered a non-union concern.
STERLING FURNITURE COMPANY 43
(b) A: concern that gives all its work to Union mechanics or union work
rooms shall be considered a union firm.
(c) Employers who are parties to this agreement shall not install work for
a non-union floor covering concern.
(d) No union concern shall permit a salesman or other employee to
contract for any non-union labor in the Bay District.
(e) Exceptions to any of the above provisions may be requested by the
Union or the Employers, but said exceptions shall only be granted when
and if approved jointly by the Employers and the Union or jointly by
their authorized representatives.
2. Lack of election under Section 9 (e)
It was stipulated by the parties in open hearing that no election had been
.Held among the Company's employees under Section 9 (e) of the Act nor has
the Respondent Union been certified by the Board as the collective bargaining
agent of such employees. I so find.
B. The discrim inatory diwcharge of Barnes by the Despondent Company
1. The hiring of Barnes by the Respondent Company
Barnes testified on his own behalf that on October 13, 1949, he called at the
office of the Company to seek employment and had a conference with John F.
Fitzgerald, manager of the rug department. He stated that Fitzgerald told
him "he would let me work if I first secured a permit from the Union." Fitz-
gerald then referred Barnes to Tony Rossi, foreman of the carpet department.
Rossi practically repeated the statement by Fitzgerald:* "He told me the exact
thing that I had to have a work permit in order to work."
As will hereinafter appear, Barnes then presented himself at the office of the
-Respondent Union and was interviewed by one of its business agents named
Ravello. As a result, Ravello gave lam a referral slip to the Company and a
work permit for the month of October. This in turn Barnes- delivered to Rossi,
foreman, and thereupon was employed as a carpet layer beginning October 19,
1949 The fact of such employment was verified by Fitzgerald, a witness for
the Respondent Union Rossi did not testify.
As to any general practice of employing carpet layers by the Respondent Com-
pany, other than the manner in which Barnes was hired, the proof is extremely
meager. Fitzgerald, manager of the Company's rug department, testified for
the Union :
Q. (By Mr. Garoni:) Mr Fitzgerald, do you have any other source of
skilled labor in San Francisco for carpet mechanics other than the Union?
A. No, we appeal to the Union whenever we need any help and when they
can't give us any help we then advertise in the newspaper.
He further stated that the Company had advertised for carpet mechanics, pre-
sumably in 1949, but "we did not advertise for non-Union men." To this may
be added the undisputed testimony of Barnes that he first reached the Bay Region
in September 1948, in response to an advertisement in a Chicago newspaper by
Bervin Carpet, Inc., of San Francisco. Philip Bervin, president of this concern,
testifying for the Union, related that Barnes was employed there from September
27 to December 31, 1948, on a union permit issued in pursuance of a contract be-
tween Bervin and the Union. Bervin is not a member of the Association, a party
in this proceeding , so the nature of such contract is not known. This adver-
tising occurred long before the 6-month period applicable to this case as pre-
scribed in Section 10 (b) and has no probative value except as it may show a
continuing general practice of advertising for carpet mechanics.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That Barnes was in fact duly and regularly hired by the Respondent Company
on October 19, 1949, there can be no doubt and it is so found
2. Barnes' work with the Respondent Company
Barnes commenced his work with the Respondent Company on October 19,
1949. He performed the regular duties of a carpet layer, generally in association
with other mechanics. Two of these fellow workmen testified for the Respondent
Union. Donald B Poster asserted that on two jobs he found Barnes did not
have the right tools and was "quite slow." On cross-examination he admitted
he never called these matters to Barnes' attention, but did report them to Rossi,
carpet foreman. Russ Foster related his observations of Barnes on three jobs,
namely, that the latter was slow. No proof appears that he mentioned this mat-
ter either to Barnes or to any company official On rebuttal Barnes testified
that at the time of his discharge and again 2 weeks later he talked to Foreman
Rossi and the latter never mentioned anything about the quality of his work.
Rossi did not take the witness stand to deny this. Fitzgerald, manager of the
Company's rug department, testified for the Union concerning a conversation he
had with Barnes after the latter's discharge, but made no mention of telling
Barnes anything about his work.
I find that the cause of Barnes' discharge did not include alleged inefficiency.
3. Barnes' discharge by the Respondent Company
It has been noted that the permit which Barnes received from the Union ex-
plied at the end of October 1949 According to his own testimony, he returned
to the Union on October 28 to secure a renewal for November. Again he talked
to Ravello, one of the business agents who said "lie could not give me a new
permit for the month of November and that I could not continue working any
longer . . . that I had to see the Executive Board of the Union in order to
secure a permit " The following day, October 29, Barnes conveyed this infor-
mation to Rossi, the company foreman :
Q Did you have a conversation with him?
A. I told Mr. Rossi that I was not allowed to work and he said he was
sorry, that he could not let me work without a work permit.
That was the end of Barnes' employment with the Company ; he did not even
work October 29.
Again according to his own testimony on redirect examination, Barnes returned
to Rossi about 2 weeks later.
A. I asked him if there were any chance of me working
Q What (lid he tell you?
A. Until I got a permit, no
It is noteworthy that neither Respondent called Rossi to the witness stand
to controvert Barnes' version of these conversations. I credit Barnes' testi-
mony In so doing I do not overlook an attempt to impeach it. Barnes had
testified that Rossi was the only company official to whom he talked after his
discharge or at least lie could not remember anyone else. The Respondent
Union presented Fitzgerald, company superintendent, who stated that Barnes did
come to him sometime after his termination (Fitzgerald could not remember
when) and reported he could not secure a permit The superintendent merely
referred him to Rossi. This testimony rather tends to corroborate Barnes than
to impeach him.
It is clear the ground upon which the Respondent Company discharged Barnes
was that he could not secure a renewal of his union permit. I so find.
STERLING FURNITURE COMPANY; 45
C. The Respondent UIooii's refusal to grant, membership to Barnes
1. Granting of permit to Barnes to work for Respondent Company
It has already been found that the Union, about October 19, 1949, granted
a permit to Barnes to work for the Company and upon its presentation lie was
thereupon employed. This case, therefore, is not one of oriai.il and continuing
refusal of membership in the Union. So far as the Respondent is concerned,
Barnes did have the Union's approval from October 19 to October 28.
2. Refusal to renew permit to Barnes to work for Respondent Company
Likewise it has been found that on October 28 Ravello, business agent of the
Union, informed Barnes "that I could not continue working any longer . . .
that I had to see the Executive Board of the Union in order to secure a permit."
The reason for this decision does not appear in the record. Neither Ravello
nor anyone else was put on the stand to explain it.
The question of nonpayment of dues by Barnes does not enter into the
picture The complaint alleged he "was willing to pay to Respondent Union
the periodic dues and initiation fees unifoi mly required as a condition of
acquiring or maintaining membership in it." The Union did not present
any defense of nonpayment of dues as a reason for refusing membership to
Barnes. I therefore find that this factor was not a reason for such refusal.
The amended answer of the Union alleged that Barnes "voluntarily quit
his employment at said Respondent Company" It has already been found
that the Company discharged him because he could not present a clearance from
the Union. It is therefore found that this defense is untenable.
.As a result of the Union's action, Barnes lost his job with the Respondent
Company and was never reemployed by them. Thus, with respect to the Com-
pany, the action of the Respondent Union was the proximate cause of Barnes'
loss of work. It is so found
Virtually the only defense offered by either Respondent was certain proof
submitted by the Union relating to jobs with employers other than the Sterling
Furniture Company. These occurred both before and after the term of work
with the Respondent Company and in each instance Barnes received a permit
from the Union. 'The first job was with L'ervm Carpet, Inc., from September 27
to December 31, 1948 This was more than a year before the first charges
were filed in the case on January 31, 1950. Moreover, some 9 months later the
Union did grant Barnes a permit to work for the Respondent. For both reasons
the ' grounds for terminating Barnes' employment with Bervin are irrelevant
and will pot be considered here. The same conclusion applies to Barnes' work
with F. K. Kinney, Inc, in January 1949.
All the balance of this line of testimony pertains to times after the Respondent
discharged Barnes on October 28, 1949, for the reasons found above and have
no 'relation to the Respondent Company whatsoever. Barnes testified that he
called on Ravello, union agent, at the union hall on November 1, 1949, and
presented a letter of recommendation from his father. The Executive Com-
mittee of the Union then held a meeting from which Barnes was excluded
The record contains no adnussible evidence regarding the outcome of this
session.
On December 6. 1949, according to Barnes, lie visited Watson A. Garoni at
his office Garoni was then a business agent of the Union and also acted as
their attorney at the hearing. Barnes delivered letters of recommendation
from his father and from a carpet concern in Bloomington, Illinois. Garoni
presented these documents to the Union's Executive Committee. Later Barnes
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was called into the session and Garoni told him he would be given a tryout-
Neither Ravello nor Garoni took the witness stand I credit Barnes' version-
Then followed two jobs, for which the Union supplied Barnes with a permit.
Neither was with the Respondent Company. The first was with the Jack Lerner
Shop in December 1949, and the second with L. D. Reeder Company in Janu-
ary 1950. Employees of these two concerns testified about deficiencies in Barnes'
work. All such witnesses were members of the Union. On rebuttal Barnes
testified to the contrary. For reasons stated below it is not deemed necessary
to reconcile this conflict or make findings concerning these facts. Following the
Reeder job, Barnes again called on Garoni, business agent, who informed him
that while his work was neat and he knew his tools, yet he was too slow and
consequently could not be accepted as it union member Barnes testified with-
out dispute that thereafter he was unable to obtain any work in San Francisco
as a carpet layer.
I regard all this testimony of events after the Respondent Company fired
Barnes as being outside the issues What is important in this case is that
Barnes sought employment with the Company and was told he would be accepted
if he could obtain -clearance from the Union; he secured a temporary work
permit from the Union and the Company hired him; the Union refused toy
renew the permit and the Company thereupon terminated his services. These
elementary facts were not changed by subsequent dealings between Barnes.
and the Union with respect to two other jobs at a later time. Nor is the
reason for the Union's final refusal to grant membership of probative value
here. It is not necessary to discuss them or to pass on the question of
the right of the Union to accept or reject applicants generally. The gist•of the
case is that with regard to the Sterling Furniture job the Union refused to.
renew Barnes' permit for reasons other than the nonpayment of dues and as a
result Barnes was discharged by the Company. Subsequent events did not
change that situation.
Such are the facts. Do they constitute a violation of Section S (a) (1), (2),
and (3) of the Act by the Respondent Company-and of Section 8 (b) (2) by
the Respondent Union?
These sections read :
Sec 8 (a) It shall be an unfair labor practice for an employer-
s * * * * * *
(3) by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership in
any labor organization : Provided, That nothing in this Act, or in any other
statute of the United States, shall preclude an employer from making an
agreement with a labor organization (not established, maintained, 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 sec-
tion 9 (c) the Board shall have certified that at least a majority of the
employees eligible to vote in such election shall have voted to authorize such
labor organization to make such an agreement: Provided further, That no
employer shall justify any discrimination against an employee for nonmem-
bership in a labor organization (A) if he has reasonable grounds for believing
that such membership was not available to the employee on the same terms
STERLING FURNITURE COMPANY 47
and conditions generally applicable to other members, or (B) if he has
reasonable grounds for believing that membership was denied or terminated
for reasons other than the failure of the employee to tender the periodic dues
and the initiation fees uniformly required as a condition of acquiring or
retaining membership ;
(b) It shall be an unfair labor practice for a labor organization or its
agents-
* * * * * * *
(2) to cause or attempt to cause an employer to discriminate against an
employee in violation of subsection (a) (3) or to discriminate against an
employee with respect to whom membership in such organization has been
denied or terminated on some ground other than his failure to tender the
periodic dues and the initiation fees uniformly required as a condition of
acquiring or retaining membership ;
On the question of the so-called "security clause" in contracts between an
employer and a labor organization, the Board, in its most recent decisions, has
followed the line laid down since the passage of the Labor Management Relations
Act.
The most recent case found by the Trial Di xaminer is Federal Stores Division
of Speigel, Inc. (Amalgamated Clothing Workers of America, Local Union No.
S1, CIO) 2 There the collective bargaining agreement contained these union-
security provisions:
Article V Membership in Union
2. Subject, to the exceptions specified in paragraph 1 of this Article, all
full-time employees at present employed in the classifications specified in
Article II shall become members of the signatory Union within fifteen (15)
days after the effective date of this agreement or shall be discharged by the
Employer.
3 Subject to the exceptions specified in paragraph 1 of this Article, all
full-tune employees in the classifications specified in Article II and who are
hired after the effective date of this agreement shall become members of the
signatory Union within 30 days after the date of their employment or shall
be discharged by the employer.
These provisions were enforced, including the discharge of several employees.
The Board found a violation of Section 8 (a) (1), (2), and (3) by the employer.
No charge had been filed against the union under Section 8 (b) (2).
, In International Longshoremen's and Warehousemen's Union, CIO (Water-
front Employers Association of the Pacific Coast), the longshore contract con-
tained this provision:
Preference of employment shall be given to members of the [ILWU]
whenever applicable . . . both in making additions to the registration list
and dispatching men to jobs.
But in accompanying memoranda a "savings clause" was attempted by the
union: "In making additions to or deletions from the registered list, there shall
be no discrimination because of union membership or activities. . . . " On their
part the employers offered "to continue the present provisions of the Con-
91 NLRB 647.
3 90 NLRB 1021.
48, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract . . . ' In carrying out the contract preference was shown in hiring union
men. The Board held the contract to be in violation of Section 8 (b) (2) :
By thus entering into contracts discriminator fly granting preference in
employment to their members, and by actively participating in the enforce-
ment of these provisions, it is clear, and we find. that the Respondents caused
the Employers to discryuinate against non-member employees in violation
of Section 8 (a) (3) of the Act, thereby violating Section 8 (b) (2).
The Board cites former decisions °
It should be noted that no such "savings clause" is to he tound in the contract
between the Respondents in the present case
,The Board reached the same conclusion in the practically concurrent case of
National Union of Marcie Cooks and Stewards, CIO (Pacific American Ship-
ouni,ess Association).' There the contract read:
The Employers agree to give preference of employment to members of the
Union, and to secure employees in their Stewards Department through the
offices of the Union, . . .
This was held to be a violation of Section 8 (b) (2).
Again in Pinkerton's National Detective Agency, Inc. (Stenhouse, et al.),'
the Board held that the union violated Section 8 (b) (2) by causing the em-
ployer to refuse work to certain nonunion applicants in violation of Section
8 (a) (3). The facts were very similar to those at bar.
The foregoing recent cases merely follow out a long line of previous decisions
of the Board on the "security clause."'
Conclusions
Under these authorities it is clear that the agreement between the Retail
Furniture Association of California, San Francisco Unit, and the Respondent
is illegal. At least in the case of the Sterling Furniture Company, a member and
the Respondent here, no election and certification under Section 0 (e) of the
Act was held. Moreover the agreement is in contravention of Section 8 (a) (3),
because it requires immediate union membership as a condition precedent to
employment and does not permit the statutory lapse of 30 days. Again, under
its terms the employer is compelled to discriminate in hiring and firing solely on
a basis of union membership-also a violation of Section 8 (a) (3). Still again
this contract contains no "savings clause" and the record is silent regarding
any variations from the practice of hiring only union members. Finally, in
the instant case, that is precisely the way it worked out.
I conclude that the contract in the present case is invalid and unlawful in the
portion quoted earlier in this Report.
As to the Respondent Company, it has been found above that it declined to
employ Barnes without clearance from the Respondent Union; that it gave him
a job when he presented a union permit ; that it discharged him when the permit
was not renewed ; and that such was the sole reason for the termination. I con-
4National Maritime Union of America, 78 NLRB 971, enfd. 175 F. 2d 686 (C. A 2),
cert den 338 U S 954, American Radio Association, 82 NLRB 1344; National Maritime
Union of America, 82 NLRB 1365.
5 90 NLRB 1099.
° 90 NLRB 205
4 See, e g : International Union, United Mine Workers of America, et al, 83 NLRB
916, Amalgamated Meat Cutters and Butcher Workmen of North America (The Great
Atlantic and Pacific Tea Company), 81 NLRB 1052; and National Maritime Union of
America, 78 NLRB 971 The lolloiimg aie tviucal repieienlation election cries Eagle
Lock Company, 88 NLRB 970, Champion Blower & Forge Company, 88 NLRB 868 , Reading
Hardware Corporation, 85 NLRB 610; Morley Manufacturing Company, 83 NLRB 404.
STERLING FURNITURE COMPANY 49
elude that under the facts in this case the Company violated Section 8 (a) (1),
(2), and (3) of the Act.
The Respondent Union, it has been found, after granting a work permit to
Barnes, withdrew it for reasons other than the nonpayment of dues, which re-
sulted in Barnes' discharge by the Company. I conclude, therefore, that the
Union, according to the facts, violated Section 8 (b) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that the activities of the Respondent Company set forth in Section
III, above, occurring in connection with its operations 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 burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Company and the Respondent Union have
engaged in certain unfair labor practices, it will be recommended that they
and each of them cease and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
It has been found that by assenting to unlawful union-security provisions,
the Association, including the Respondent Company, lent support to the Re-
spondent Union in violation of Section 8 (a) (1) and (2). The undersigned
-will accordingly recommend that the Respondent Company withdraw recogni-
tion from the Respondent Union and cease giving effect to its contract of Oc-
tober 15, 1949, with the Respondent Union, or to any modification, extension,
supplement, or renewal thereof, unless and until the Respondent Union has
been certified by the Board. Nothing in these recommendations, however, shall
be deemed to require the Respondent Company to vary or abandon those wage,
hour, seniority, or other substantial features of its relations with its employees,
established in the performance of said contract, or to prejudice the assertion
by the employees of any rights they may have under said agreement.
It has been found that the Respondent Company discriminatorily discharged
Charles O. Barnes because of his lack of union membership, such discharge re-
sulting from the action of the Respondent Union in unlawfully withdrawing
the work permit theretofore granted to him. Even though the Respondent Com-
pany committed the final overt acts of discharging Barnes, it did so solely
because the Respondent Union compelled that action in pursuance of the exist-
ing contract. Consequently both the Respondent Company and the Respondent
Union should be held jointly and severally liable for any loss of pay suffered
by Barnes on account of the discrimination against him. It will therefore be
recommended that the Respondent Company offer to Charles O. Barnes imme-
diate and full reinstatement to his former or substantially equivalent position.
It will be further recommended that the Respondent Company and the Re-
spondent Union jointly and severally snake him whole for any loss of pay he
may have suffered as a result of the Respondent Company's discrimination
against him, as aforesaid, by payment to him of a sum of money equal to that
which he would have earned as wages from the date of discriminatory discharge
to the date of offer of reinstatement. Loss of pay shall be computed on the
basis of each separate calendar quarter or portion thereof during the period
from the Respondent Company's discriminatory action to the date of a proper
offer of reinstatement. The quarterly periods, herein called quarters, shall
953S41-52-vol 94-5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-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 he would normally
have earned for each quarter or portion thereof, his net earnings, if any, in
other employment during that period. Earnings in one particular quarter shall
have no effect, upon the back-pay liability for any other quarter. It will be
recommended that the Respondent Company, upon reasonable request, make
available to the Board and its agents all records pertinent to an analysis of
the amounts due as back pay.
It has been found that the Respondent Union has violated Section 8 (b) (2)
by causing and attempting to cause the Association, including the Respondent
Company, to enter into a contract containing a clause making membership in
the Respondent Union a condition of employment without complying with the
union election procedure in the proviso in Section 8 (a) (3) of the Act and by
unlawfully withholding a work permit for Barnes to continue his employment
with the Respondent Company. It will be recommended that the Respondent
Union cease and desist therefrom and cease maintaining or giving effect to the
union-security provisions in their contract of October 15, 1949, with the Asso-
ciation, including the Respondent Company, so long as the provisions do not
conform to the provisos in Section 8 (a) (3) of the Act.
On the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS Or LAW
1. Sterling Furniture Company, in its operations, is'engaged in trade, traffic,
and commerce among the several States, within the meaning of Section 2 (6)
and (7) of the Act.
2. Carpet, Linoleum & Soft Tile Workers, Local No. 1235 is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. By entering into the collective-bargaining agreement of October 15, 1949,
containing unlawful union-security provisions involving discrimination in the
hire and tenure of employees because of their union membership and activities,
and by assenting to such unlawful provisions, the Association, including the
Respondent Company, has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
4. By contributing support to Carpet, Linoleum & Soft Tile Workers, Local No.
1235, the Association, including the Respondent Company, has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (2)
of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, in the manner set forth in
the next two preceding paragraphs, the Association, including the Respondent
Company, has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
6. By discriminating in regard to the hire and tenure of employment of Charles
0. Barnes, because of his union membership and activities, the Respondent
Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act.
7. By attempting to cause and causing the Association, including the Respond-
ent Company, to enter into a collective-bargaining agreement with unlawful
union-security provisions and by unlawfully withdrawing the work permit
theretofore granted to Charles O. Barnes for employment with the Respondent
Company, Carpet, Linoleum & Soft Tile Workers, Local No. 1235, has engaged
HAMILTON FOUNDRY & MACHINE COMPANY 51
in and is engaging in unfair labor practices within the meaning of Section 8
(b) (2) of the Act.
8. The aforesaid unfair labor practices affect commerce within the meaning
of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
HAMILTON FOUNDRY & MACHINE COMPANY and UNITED STEELWORKERS
OF AMERICA, CIO, PETITIONER. Case No . 9-RC-1111. April 27,
1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Allen Sinsheimer, Jr.,
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 connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner requests an election in a voting group consisting
of all molders, core makers, core assemblers, and two miscellaneous
job classifications defined as service man #2 sandslinger and machine
operator roll-over core unit, but excluding guards, industrial engi-
neering department employees, laboratory department employees, pro-
duction schedule clerks, timekeepers, all clerical employees, superin-
tendents, supervisors, foremen, assistant foremen, and all other
supervisors as. defined in the Act. If successful in an election directed
among these employees, the Petitioner further requests authority to
merge this group in one plant-wide bargaining unit with the procluc-
^ The International Molders and Foundry Workers Union of North America , Local 68,
AFL, hereinafter termed the Intervenor , moved to intervene at the hearing. The Petitioner
and the Employer oppose the intervention on the ground no showing of interest was made.
The Intervenor , until 1949 , was the contractual representative of the employees in the
unit sought herein, and is currently picketing the Employer 's plant in the course of a
strike called in April 1949 . The hearing officer's ruling granting intervention is hereby
affirmed and the Intervenor ' s name will be placed on the ballot in the election hereinafter
ordered.
94 NLRB No. 24.