Sub Grade Engineering Co.

National Labor Relations Board - Board Decisions

Feb 27, 1951

93 N.L.R.B. 406 (N.L.R.B. 1951)

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit 20 We are of the opinion that the interests of the American Club
employees are sufficiently related to those of the Employer's produc-
tion and maintenance employees to permit their inclusion in the unit.
We find that all production and maintenance employees at the
Employer's Kohler, Wisconsin, plant, including shop office stenogra-
phers, American Club employees, all employees described in the Octo-
ber 23, 1950, Supplement "B" of the present contract between the
Employer and the Intervenor, and all employees described in Sup-
plement "F" of the contract, including employees doing experimental
work in the development department, but excluding general office and
clerical employees, draftsmen, technicians, clerks in the medical de-
partment, employees in the employment department, doctors, dentists,
nurses, engineers , employees in the chemical and physical laboratory,
confidential employees, watchmen, guards, and supervisors, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section (9) (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
20 Taunton Pearl Works , 89 NLRB 1382 ; Wm. P. McDonald Corporation , 83 NLRB 427;
S. S. Pierce Co., 82 NLRB 1260; Wilson and Co ., Inc., 80 NLRB 1466.
SUB GRADE ENGINEERING COMPANY and CLIFFORD E. COLLINS
INTERNATIONAL UNION OF OPERATING ENGINEERS , HOISTING AND
PORTABLE LOCAL No. 101 OF GREATER KANSAS CITY AND VICINITY,
AFL, and CLIFFORD E. COLLINS
SUB GRADE ENGINEERING COMPANY and ERVIN R. STEWART
INTERNATIONAL UNION OF OPERATING ENGINEERS , HOISTING AND
PORTABLE LOCAL No. 101 OF GREATER KANSAS CITY AND VICINITY,
AFL, and ERVIN R. STEWART. Cases Nos. 17-CA-234, 17-CB-10,
17-CA-235, and 17-CB-11. February 27, 1951
Decision and Order
On July 25, 1950, Trial Examiner Charles W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report, and supporting briefs.
The Respondents' requests for oral argument are hereby denied, as
93 NLRB No. 45.
SUB GRADE ENGINEERING COMPANY 407
the record, the exceptions, and the Respondents' briefs, in our opinion,
adequately present the issues and the positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondents' exceptions and briefs, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
additions.
The events leading up to the discharge of the complainants are fully
described in the Intermediate Report. The Trial Examiner found,
and we agree, that these discharges were discriminatory. When it
became necessary, because of the approaching termination of opera-
tions, to make permanent layoffs, the Respondent Company informed
the Respondent Union that it would make the layoffs in accordance
with job seniority. The Respondent Union insisted, however, upon
the application of its trade rule of many years' standing, which re-
quired that members of Local 101-B be laid off before members of
Local 101, regardless of their respective job semority.l As the com-
plainants herein would not have been laid off at that time absent the
Respondent Company's compliance with the Union's demand, we find
that the Respondent Company "permitted the Union to arrogate to
itself the Company's control over employment, and to use such control
to accomplish discharges which were clearly discriminatory." 2
Our dissenting colleague, although conceding that the complainants
were discriminatorily discharged,3 and that the discharges were made
"in accordance with the Union's request," contends that we cannot
find that the Respondent Union "caused" the discharges without giving,
to Section 8 (b) (2) its "broadest possible interpretation-an interpre-
tation which ignores Section 8 (c) of the Act." The dissenting
opinion further contends that our conclusion herein is contrary to the
Board's decisions in the Henry Shore 4 and Juneau Spruce 5 cases.
However, we do not consider that the majority opinion in this case
departs from the Board principles enunciated in the cited cases, as
those cases were concerned only with "attempt to cause" discrimina-
' The Respondent Union contends that the discharge of the complainants was the "result
of the exercise of a valid trade rule of seniority of respondent union and in the province of
the internal affairs of a labor organization, in which province the Board is without authority
to interfere ." We are not passing upon the general validity of the Respondent Union's
trade rule , however, but limit our findings herein to the discriminatory discharges which
resulted in the instant case from the application of that rule.
s Air Products , Incorporated, 91 NLRB 1381.
The dissent apparently does not disagree with the finding that the Employer violated
Section 8 ( a) (3) of the Act.
4 Denver Building and Construction Trades Council (Henry Shore ), 90 NLRB 1768.
International Longshoremen 's and Warehousemen 's Union ( Juneau Spruce ), 90 NLRB
1753.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, and no actual discrimination in violation of Section 8 (a) (3)
of the Act resulted from those attempts.
Neither of those cases reached the situation now before us, where
the request to discriminate resulted in actual discrimination in vio-
lation of Section 8 (a) (3) of the Act. In the instant case, the Re-
spondent Union's International and its locals were the source of the
Company's labor supply, not only for the job involved here but for
other operations in various parts of the country. In view of the Re-
spondent Union's potential economic power to deprive the Employer
of its labor market, the request of the Respondent Union's job steward,
later reiterated by the business agent, that members of the subordinate
local be laid off out of turn, exerted sufficient pressure to accomplish
the ends desired by the Respondent Unions It is unrealistic to
contend that such request was not in fact the "cause" of the discharges.7
The argument in the dissenting opinion based upon the free-speech
provisions of Section 8 (c) is inapplicable to the present situation.
As Senator Taft said in explaining these provisions, ". . . the privi-
lege of this subsection is limited to expression of `views, arguments,
[sic] or opinion.' It has no application to statements which are acts
in themselves or contain directions or instructions." 8 It was because of
the limitation of the free-speech provisions to "views, arguments, or
opinion," and because of the possible conflict between Section 8 (b)
(2) and Section 8 (c), that the Conference Committee removed from
Section 8 (b) (2) the word "persuade," which necessarily included
the expression of "views, argument, or opinion," and substituted the
word "cause," a more precise legal term. • In any event, we do not
believe that "persuasion" which results in discrimination would be
,protected by Section 8 (c). Our view is supported by the opinion
of Chief Judge Learned Hand in the Langer case," in which he wrote :
... it appears to us extremely doubtful that it [Section 8 (c) ]
can mean to cover all the "unfair labor practices" which § 8 (b)
(2) includes. For example, among these is "causing or at-
tempting to cause" an employer to violate § 8 (a) (3), and it is
a violation of § 8 (a) (3) for an employer to discriminate against
an employee in order to induce him to join a Union, or dissuade
him from joining one. We do not believe that Congress meant
to allow a union to persuade an employer so to discriminate, even
though it does so without threats or promises.
8 The nature of the "request" is set forth in detail in the Intermediate Report.
7 Our dissenting colleague has had no difficulty in finding a union's request for discharge,
unaccompanied by threats, the "cause" of the discharge within the meaning of Section
8 (b) (2) where there was a contract containing an illegal union-security provision (Carlyle
Rubber Co, Inc., 92 NLRB 385), or where the union-security provisions of a contract
were not yet effective (Kingston Cake Company, Inc., 91 NLRB 447). We can see no good
reason for treating the request herein differently.
8 Senator Taft's Supplementary Analysis of Labor Bill as Passed, 93 Cong. Rec. 7002
(June 17, 1947).
9International Brotherhood of Electrical Workers v. N. L. R. B., 181 F. 2d 34 (C. A. 2).
SUB GRADE . ENGINEERING COMPANY 409
We therefore find that the Respondent Company, by the discharge
of the complainants, violated Section 8 (a) (3) and 8 (a) (1) of the
Act. We further find that the Respondent Union, by its demand,
caused the Respondent Company to discriminate against the com-
plainants and thereby violated Section 8 (b) (2) and 8 (b) (1) (A)
of the Act 10
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
I. The Respondent, Sub Grade Engineering Company, Omaha,
Nebraska, its officers, agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Encouraging membership in International Union of Operating
Engineers, Hoisting and Portable Local No. 101 of Greater Kansas
City and Vicinity, AFL, or in any other labor organization, by dis-
criminating in regard to the hire and tenure of employment of its
employees, or any term or condition of their employment, except to
the extent permitted by the proviso to Section 8 (a) (3) of the Act.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at its construction offices in Kansas City and vicinity, if
any, copies of the notice attached to the Intermediate Report and
marked Appendix A 11 Copies of said notice, to be furnished by the
Regional Director for the Seventeenth Region, shall, after being duly
signed by the Respondent Company's representative, 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 conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent Company
to insure that such notices are not altered, defaced, or covered by any
other material;
(b) Notify the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
H. The Respondent, International Union of Operating Engineers,
Hoisting and Portable Local No. 101 of Greater Kansas City and
10 Cf Kingston Cake Company, Inc, supra ; Air Products, Incorporated, supra.
"This notice, however, shall be and it hereby is amended by striking from the first
paragraph thereof the words "the recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order ." 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 of Appeals Enforcing."
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vicinity, AFL, its officers, agents, representatives, successors, and
assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Sub Grade Engineering Com-
pany, Omaha, Nebraska, its officers, agents, successors, or assigns, to
discriminate against its employees in violation of Section 8 (a) (3)
of the Act;
(b) In any like or related manner restraining or coercing employees
of Sub Grade Engineering Company, its successors or assigns, in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) 'Post at its offices in Kansas City, Missouri, and in other con-
spicuous places, including all places where notices to members are
customarily posted, copies of the notice attached to the Intermediate
Report and marked Appendix B: 2 Copies of said notice, to be fur-
nished by the Regional Director for the Seventeenth Region, shall,
after being duly signed by the Respondent Union's representatives,
be posted by it immediately upon receipt thereof and maintained by it
for a period of at least sixty (60) consecutive days thereafter. Rea-
sonable steps shall be taken by the Respondent Union to insure that
said notices are not altered, defaced, or covered by any other material;
(b) Mail to the Regional Director for the Seventeenth Region
signed copies of the notice attached hereto and marked Appendix B,
fbr posting, the Respondent Company willing, at the construction
offices and place of business of the Respondent Company in Kansas
City and vicinity, in places where notices to employees are customarily
posted. Copies of said notice, to be furnished by the Regional Director
for the Seventeenth Region, shall, after being signed as provided in
paragraph II, subparagraph 2 (a) of this Order, be forthwith re-
turned to the Regional Director for such posting ;
(c) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what
steps the Respondent Union has taken to comply herewith.
III. The Respondents Sub Grade Engineering Company, Omaha,
Nebraska, its officers, agents, successors, and assigns, and Interna-
tional Union of Operating Engineers, Hoisting and Portable Local
No. 101 of Greater Kansas City and Vicinity, AFL, its officers, agents,
representatives, successors, and assigns, shall jointly and severally
make whole Clifford E. Collins and Ervin R. Stewart for any, loss
of pay they may have suffered because of the discrimination against
them, by payment to each of them of a sum of money equal to the
12 See footnote 11.
SUB GRADE, ENGINEERING COMPANY 411
amount he normally would have earned as wages during the period
from September 25 to October 28, 1949, less his net earnings during
the said period.
MEMBER MURDOCK, dissenting in part:
On the facts in this case I am unable to agree with the conclusion
of the majority that the Respondent Union has violated Section 8
(b) (2) of the Act.
The Trial Examiner found and the majority agree that there was
no written or oral agreement between the two Respondents requiring
the discharge of the complainants. Moreover, there is no evidence
in the record to indicate that threats of reprisal or promises of bene-
fit were used by the Respondent Union to secure their discharge.
Admittedly, the Union took the position, when approaching comple-
tion of the work made necessary the permanent layoff of one crew
of pumpers, that the complainants, as members of branch or subdi-
vision Local 101-B, should be discharged before other employees who
were members of parent Local 101. This was in accordance with
Local 101's established "trade rule" which gave Local 101 members
seniority over 101-B members where a permanent layoff was to occur.
But I cannot find, as do the majority, that the Respondent Company
permitted the Union to arrogate to itself the Company's control over
the employment of Collins and Stewart. In my opinion, the Union's
representations to the Company amounted, in essence, to nothing more
than a request that the Company honor the Union's "trade rule" con-
cerning seniority among its members on layoffs. Clearly, the dis-
charge of the complainants was at all times within the discretion of
the Company. That the latter acted in accordance with the Union's
request does not convert its voluntary action into action by the Re-
spondent Union.
As indicated above, the Company was under no obligation, con-
tractual or otherwise, to accede to the Union's request. The request
was not accompanied by threats to picket, picketing, or any other form
of coercive conduct in the nature of reprisals or threats of reprisal.
In order to spell out a violation of Section 8 (b) (2) in this case the
majority must give the phrase "cause or attempt to cause" in Section
8 (b) (2) the broadest possible interpretation-an interpretation which
ignores Section 8 (c) of the Act. This is exactly what I had thought
a unanimous Board had repeatedly refused to do in our most recent
decisions relating to this issue.13 In those cases the Board specifically
held that requests to discriminate made by a union to an employer
came under the heading of "persuasion" rather than "cause" and were
13 Denver Building and Construction Trades Council (Henry Shore), 90 NLRB 1768;
International Longshoremen's and Warehousemen 's Union ( Juneau Spruce), 90 NLRB 1753.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore not proscribed by Section 8 (b) (2). Particularly, in the
Henry Shore case the Board explained at some length that peaceful
picketing, heretofore believed to be "persuasion" within the meaning
of Section 8 (c), was no longer protected by the language of that
Section because of recent Supreme Court decisions holding that picket-
ing for an unlawful objective was not to be equated with speech because
it has aspects which were more than mere speech. The Board therefore
held that the picketing and threats to picket in that case came within
the proscriptive language, "to cause or attempt to cause," in Section
8 (b) (2). The rationale of these cases is based upon an interpretative
problem recognized by the Board as early as the Wadsworth case '14
one of the first cases dealing with a violation of Section 8 (b) of the
Act. It was conceded in that and subsequent cases that Congress
intended Section 8 (c), guaranteeing freedom of speech to employees,
employers, and labor organizations, to apply to Section 8 (b) (2).
Given its broadest interpretation, the language of Section 8 (b) (2)
would, of course, forbid all means, including mere persuasion, em-
ployed by a labor organization to achieve its objective. Faced with
this apparent conflict in the Statute, the Board turned to legislative
history. That legislative history shows, as a unanimous Board has
since conceded, that Congress was aware of this problem and had spe-
cifically changed the proposed language of Section 8 (b) (2) to make
that Section accord with Section 8 (c). The change was explained
by Senator Taft in the following words (93 Cong. Rec. 6600) :
The original Senate language used the words "to persuade or.
attempt to persuade." The House conferees objected on the
ground that it seemed inconsistent with the provisions guaran-
teeing all parties freedom of expression. The conferees clarified
this language so that it reads "to cause or attempt to cause."
It is on the basis of this legislative history that the Board has given
Section 8 (b) (2) a scope limited by Section 8 (c) and has ruled in
the cases cited above that a mere request comes under the heading of
"persuasion" protected by Section 8 (c) and is not interdicted by the
language of Section 8 (b) (2) when that Section is read in the light
of the immunizing language of Section 8 (c). But if now, as the
majority hold in the instant case, a mere request is deemed sufficient
"to cause an employer" to engage in unlawful discrimination in viola-
tion of Section 8 (b) (2) if he acquiesces in the request, then it would
appear that any expression of "views, argument or opinion" by a labor
organization is similarly to be prohibited under Section 8 (b) (8).
This holding is not only contrary to the unanimous Board's decision
of Henry Shore and Juneau Spruce, but reads Section 8 (c) out of the
Act insofar as Section 8 (b) (2) is concerned, despite the clearly
14 United Brotherhood of Carpenters and Joiners of America, District Council of Kansas
City, at al. ( Wadsworth Building Company, Inc.), 81 NLRB 802.
SUB GRADE ENGINEERING COMPANY 413
expressed contrary intent of those primarily responsible for the pas-
sage of the amended Act, as evidenced by the legislative history cited
above.
The majority, however, deny that their decision here is contrary to
the.Henry Shore and Juneau Spruce decisions.15 They point out that
the requests found to be protected activity in those cases were not suc-
cessful. Although that is true as a matter of fact, I have carefully
reviewed the Board's decisions in`those cases and I can find no lan-
guage supporting a legal distinction based upon the success or lack
of success of the request. The issue was put squarely and with no
limitation to the Board by the Trial Examiner in the Henry Shore
case : "Whether a bare demand for a closed shop or other discrimina-
tory condition is alone enough upon which to predicate a violation of
Section 8 (b) (2) is a question that has not yet been definitively
answered by the Board." The Trial Examiner answered the ques-
tion in the negative. After quoting the legislative history, the Trial
Examiner said : "It is thus clear that Congress did not intend Section
8 (b) (2) to reach all means by which a union may seek to procure
illegal discrimination. To spell out a violation of Section 8 (b) (2)
something more must be shown than non-coercive persuasion by a
union." The Board approved these findings with no suggestion that
the success of the demand was a relevant consideration stating ".. .
that the requests to discriminate in favor of the members of the Re-
spondent Council's affiliates were mere `attempts to persuade,' hence,
in view of the legislative history detailed in the Intermediate Report,
not proscribed by Section 8 (b) (2). " The Juneau Spruce case was
decided on the same rationale. Again, there was no suggestion that
the freedom of speech specifically accorded by Section 8 (c) and previ-
ously recognized by this Board could be reduced to a meaningless
right by the distinction the majority adopt today. Under the major-
ity view the Union is permitted by Section 8 (c) to make a bare dis-
criminatory request without being found guilty of an "attempt to
cause" discrimination in violation of Section 8 (b) (2). But if the
employer should be persuaded to act upon that request, ipso facto the
Union's speech theretofore lawful becomes unlawful and a violation
of Section 8 (b) (2). It seems to me that this is a dangerous distinc-
tion that carries implications far beyond the instant case. For it
'6 At one point the majority opinion seems to suggest that Section 8 (c) cannot be
deemed applicable to the Union 's request in the instant case because the request cannot
be considered the expression of "views , arguments or opinion" which 8 ( c) protects, but
rather must be viewed in the category of "statements which are acts in themselves
or contain directions or instructions" which are not protected by Section 8 (c). A
plea by a Union that its trade rules on seniority be respected by an employer in making
layoffs clearly constitutes the expression of a "view" or an "argument" to the employer.
Moreover , a contrary holding as to the nature of the request could not be made without
overruling the Henry Shore and Juneau Spruce decisions entirely, which the majority
elsewhere say they do not do.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
means that no form of persuasion under Section 8 (c) can ever be
completely protected by that Section. Persuasion is not persuasion
when it persuades.
I do not find the quotation from Judge Hand's opinion in the Langer
case which is relied upon by my colleagues sufficient reason to depart
from our former decisions on this subject. The views there expressed
were pure dicta, no issue as to the interpretation of Section 8 (b) (2)
being before the Court. I am unable to accept such dicta as against
the legislative history of Section 8 (b) (2).
Intermediate Report
Mr. Martin Sacks, for the General Counsel
Mr. Sol M. Yarowsky, of Kansas City, Mo., for the Respondent Company.
Messrs. Cltif Langsdale and John J. Manning, of Kansas City, Mo., for the
Respondent Union.
STATEMENT OF THY CASE
Upon charges duly filed by Clifford E. Collins and Ervin R. Stewart, individ-
uals, the General Counsel of the National Labor Relations Board,' on behalf of
the Board, caused the Regional Director of the Seventeenth Region, at Kansas
City, Missouri, to issue a complaint on May 10, 1950, against Sub Grade
Engineering Company, herein called the Respondent Company, and Interna-
tional Union of Operating Engineers, Hoisting and Portable Local No. 101 of
Greater Kansas City and Vicinity, AFL, herein called the Respondent Union,
alleging that the Respondent Company has engaged in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section
2 (6) and (7) of the Labor Management Relations Act, 1947, (Public Law 101,
80th Congress), herein called the Act, and that Respondent Union has engaged
in unfair labor practices affecting commerce within the meaning of Section 8
(b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. Copies of the
charges, the complaint, the order consolidating the cases, and notice of hearing
were duly served upon the Respondents and the individuals who filed the
charges.
- With respect to the unfair labor practices, the complaint alleged, in substance:
that on September 25, 1949, the Respondent Union caused the Respondent
Company to discharge, and that the Company did discharge, employees Clifford
E. Collins and Ervin R. Stewart because they were not members of the Respond-
ent Union.
In its duly filed answer the Respondent Company admitted certain jurisdic-
tional allegations, but denied that it had engaged in any unfair labor practices.
Affirmatively it alleged that its action in discharging Collins and Stewart, upon
demand by the Union, was without knowledge or reason to believe that discrimi-
nation had been invoked by the Union. In its answer the Respondent Union
denied the commission of the alleged unfair labor practices. Affirmatively the
Union alleged, in substance, that Collins and Stewart were discharged pursuant
to a "trade rule" concerning job seniority, and that the Board is without juris-
diction, among other reasons, because Collins and Stewart have not exhausted
their rights of hearing and appeal within the Union.
1 The General Counsel and his representative at the hearing are herein referred to
as General Counsel, and the National Labor Relations Board.as the Board.
SUB GRADE, ENGINEERING COMPANY 415
Pursuant to notice, a hearing was held at Kansas City, Mo., on May 31 and
June 1, 1950, before the undersigned, a Trial Examiner duly designated by the
Chief Trial Examiner. The General Counsel and the Respondents were repre-
sented by counsel. All parties were afforded full opportunity to participate
in the case, to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues.
At the opening of the hearing the Respondent Union moved for dismissal of
the complaint upon the following grounds: (1) Because the complaining indi-
viduals had not exhausted rights provided by the Union's constitution; (2)
because termination of the employment of the individuals was in accordance
with a long-established trade rule, and because rights guaranteed to employees
under Section 7 of the Act do not include protection from trade rules imposed
upon its own members by a labor organization. Ruling upon this motion was
reserved, and the parties were requested to present evidence upon the issues
thus raised.- Disposition of the motion is made in the findings and conclusions
appearing below.
Briefs have been received from the General Counsel and counsel for each of
the Respondents.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF SUB GRADE ENGINEERING COMPANY
Sub Grade Engineering Company is a contracting and engineering corpora-
tion organized under the laws of the State of Nebraska. Its office and principal
place of business is in Omaha, Nebraska ; other offices are maintained in New
York, New York, and Bell, California.
The Respondent Company is engaged in building construction, "unwatering,"
and engineering. During 1949, it performed pumping and other services in
various States of the United States, such services being valued at about $50,000.
In the course of its business, the Respondent Company uses pump equipment,
material, and supplies valued at about $50,000, 75 percent of which was shipped
to it from sources outside the State of Nebraska.
Also during 1949, the Respondent Company contracted to perform the pump-
ing or "unwatering" operation for Electric Bond and Share Builders and Design-
ers, a subdisiary of Electric Bond and Share Company, at a location known as
Hawthorne Station, a power plant project located on the Missouri River at
Kansas City, Missouri. The Hawthorne Station is a project valued at about
$25,000,000. The amount of the contract between the Respondent Company and
Electric Bond and Share Builders and Designers, for the said project, was about
$40,000, and the value of the pump machinery used by the Respondent Company
on this project was about $50,000, all of which machinery was shipped to the
Hawthorne Station project from points outside the State of Missouri'
II. THE ORGANIZATION INVOLVED
International Union of Operating Engineers, Hoisting and Portable Local
No. 101 of Greater Kansas City and Vicinity, AFL, is a labor organization
admitting to membership employees of the Respondent Company.
2 The Trial Examiner finds to be without merit the Respondent Company's position,
urged at the hearing that its operations are local in character and that the Board
should not assert jurisdiction.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. THE UNFAIR LABOR PRACTICES
A. Relevant events
Local 101, the labor organization herein charged as engaging in unfair labor
practices, is governed by the constitution of the International Union of Operat-
ing Engineers. In terms of the constitution, Local 101 is known as a "parent
Local Union." Pursuant to the constitution the parent local in 1934 applied
for and was granted by the International a "restricted" charter for a "branch"
or "subdivision" which became local 101-B. The branch was chartered for the
purpose of organizing workers who operated certain machines, particularly in
road construction. At the time material, however, both the parent local and
the branch local held separate charters, there being about 140 members of Local
101 and about 1,200 members of Local 101-B. Only by vote of Local 101 members
can applicant members of Local 101-B acquire full membership in the parent
local.
Shortly after establishment of the branch local, the parent local set up a
"trade rule," still existent, whereby its members hold layoff priority over mem-
bers of 101-B. That is to say, where members of both locals are working on a
job, at times of a general layoff and regardless of relative seniority on the job
all members of Local 101-B must be ,laid off before any members of Local 101
are terminated.
The two complainants in this case, Clifford E. Collins and Ervin R. Stewart,
have for a number of years been ihembers of the branch local, but not of the
parent local. In 1949 both made unsuccessful efforts to become members of the
parent local. In March Collins made formal application to transfer, and on
several occasions thereafter was informed that he must await executive board
action. In July Stewart informally applied to the treasurer of the parent local,
but was told there were too many applicants ahead of him. Not until November
1949 did the parent local take formal action upon the to applications. Accord-
ing to minutes of the parent local, it was then voted to "lay over" the applica-
tions "until conditions improved."
When the Respondent Company began its pumping operations in June 1949
at the Hawthorne project it hired pump operators through the Respondent
Union, although no written or oral agreement between the two Respondents
required this action. According to the superintendent it is the company practice
when beginning such operations to hire through the local of the Operating
Engineers in the locality. When the superintendent sought a crew of pumpers
on or about June 22, the Respondent Union sent Collins and Stewart (and one
other individual not here involved) to the job. The superintendent was not
informed, according to his undisputed testimony, as to what labor organization,
if any, either of the two men belonged. About 3 months later the company
hired, also through Local 101, another crew of three pumpers. These latter
three were members of the parent local.
Late in September the company decided to lay off one crew of pumpers, since
the job was nearing completion. According to the superintendent it is the
company practice to observe seniority on the job at times of layoff, ability being
equal. In this case, however, the superintendent was informed by the job
steward of the parent local that because of the "trade rule" he must first lay off
the crew in which Collins and Stewart were working. The superintendent
promptly communicated with the business agent of the parent local and requested
that the "trade rule" be waived. The business agent replied that he was without
authority, and confirmed the steward's statement that Collins and Stewart must
be laid off because they were "B men and the 101 men had seniority," and that
SUB GRADE ENGINEERING COMPANY 417
"any 101 man had seniority over any B man where a permanent layoff was to
occur."
On September 25, the selection being made as a result of the Respondent
Union's demand, the Respondent Company laid off Collins and Stewart. On
October 28 pumping operations were further reduced On this latter date, had
company practice been followed, Collins and Stewart would have been dismissed.
Early in November the entire operation ceased. At the hearing all parties
stipulated that the only period herein involved as to discrimination, if any, is
from June to November 1949-that is, from the date of their hiring to the date
when they would have been permanently laid off had company practice and
not the trade rule been followed.
B. The issues and positions of the parties
In essence, the issues raised by the complaint are as follows :
As to the Respondent Company: that it discriminatorily discharged, in viola-
tion of Section 8 (a) (3) of the Act, Collins and Stewart because they were not
members of the Respondent Union;
As to the Respondent Union: that it caused the employer thus to discriminate
against the two employees who had been denied membership on grounds other
than refusal to tender dues and initiation fees.
The Respondent Company urges that it may not be held to have encouraged
membership in Local 101 as against Local 101-B in the layoff since it acted in
good faith upon assertion of the Respondent Union that the "trade rule" had been
adopted by the latter's membership.
The Respondent Union chiefly urges, in effect, that the "trade rule," under
which Collins and Stewart were dismissed, was valid and that the Board is
without authority to interfere "in the internal affairs of labor organizations."
General Counsel urges: (1) That nonmembership in Local 101 was the only
reason for the dismissals; (2) that Local 101 and Local 101-B are separate
entities in effect; (3) that because no contract existed between the two Re-
spondents neither proviso of Section 8 (a) (3) is involved; (4) that the dis-
missals tended to encourage membership in Local 101 and to discourage mem-
bership in Local 101-B; (5) that by causing the Company to discriminate against
Local 101-B members in matters of employment the Respondent Union has
violated Section 8 (b) (2) ; and (6) that by the same conduct the Respondent
Union has violated Section 8 (b) (1) (A) in that its conduct was coercive of the
employees' right to refrain from joining Local 101.
C. Conclusions
The Trial Examiner finds merit in the contentions of General Counsel. No
contract existed, valid or otherwise, between the two Respondents requiring
membership in Local 101, or providing for any seniority rules. The simple fact
is that Collins and Stewart were deprived of employment between September
25 and October 28 solely because they were not members of Local 101. Such
deprivation of employment could reasonably have had no other affect than to
encourage membership in Local 101 and discourage membership in Local 101-B.
Whatever the constitutional relationship between the parent local and its
branch, the Respondent Union's demand upon the Respondent Company clearly
establishes that in its own view, for employment purposes at least, they are two
separate entities. Section 8 (a) (3) specifically prohibits discrimination in
tenure of employment which encourages or discourages membership in any
labor organization, except in situations not here material.
943732-51-28
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent Union caused the employer to discriminate against non-
members of Local 101 who at the same time had, in effect, been denied member-
ship in Local 1012 Section 8 (b) (2) prohibits such action on the part of a
labor organization. The same action likewise falls under the prohibitive pro-
visions of Section 8 (b) (1) (A), since no valid agreement required membership
in Local 101. Discrimination as to tenure of employment is coercive, and in the
situation here described the employees plainly had the right to remain members
of Local 101-B and to refrain from joining Local 101 or any other labor
organization.
,The Trial Examiner therefore concludes and finds: (1) That on September
25, 1949, the Respondent Company discriminatorily discharged Collins and
Stewart, thereby encouraging membership in Local 101 and discouraging mem-
bership in Local 101-B; (2) that the Respondent Union caused the Respondent
Company thus to discriminate against the two employees ; and (3) that both
Respondents restrained and coerced employees in the exercise of rights guaran-
teed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring in
connection with the operations of the Respondent Company 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 Respondents engaged in unfair labor practices the Trial
Examiner will recommend that they cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
It has been found that from September 25 to October 28, 1949, the Respondent
Company discriminated against Clifford E. Collins and Ervin R. Stewart, thereby
encouraging membership in the Respondent Union and interfering with, restrain-
ing, and coercing its employees in the exercise of rights guaranteed by Section 7
of the Act; and that the Respondent -Union engaged in unfair labor practices
by causing the Respondent Company thus to discriminate, thereby restraining
the two employees in the exercise of rights guaranteed by the Act.
Since it was agreed by the parties at the hearing that the period from Sep-
tember 25 to October 28, 1949, is the only period of discrimination involved,
and the evidence establishes that the work the two employees were engaged
in has been completed, it will not be recommended that Collins and Stewart
be offered reinstatement.
Having found that both Respondents are responsible for the discrimination
suffered by Collins and Stewart, the Trial Examiner will recommend that they
jointly and severally make them whole for any loss of pay they may have
suffered by reason of the discrimination against them by payment to each of
them of a sum of money equal to the amount he normally would have earned
as wages during the period from September 25 to October 28, 1949, less his net
earnings during this period.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case the Trial Examiner makes the following:
3In the opinion of the Trial Examiner, whether or not Collins had applied for member-
ship in Local 101 Is immaterial to the major issues, since no contract existed between
the parties.
NEWSPAPER AND MAIL DELIVERERS' UNION OF N. Y., ETC. 419
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Hoisting and Portable Local
No. 101 of Greater Kansas City and Vicinity, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Clif-
ford E. Collins and Ervin It. Stewart, thereby encouraging membership in the
Respondent Union, the Respondent Company has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exer-
cise of rights guaranteed in Section 7 of the Act, the Respondent Company
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
4. By causing the Respondent Company to discriminate against employees
in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(b) (2) of the Act. _
5. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Respondent Union has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act.
6. 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.]
NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY
and JOSEPH Rizzo
NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY
and IRVING SHAPIRO, FRED GORTON, Rocco NICOLINI, JOSEPH SAT-
KOSKY, MICHAEL CONTINO, JOSEPH SCOPELLITI . Cases Nos. 2-CB-
' 141 and 2-CB-254. February 27,1951
Decision and Order
On September 29, 1950, Trial Examiner Charles W. Schneider
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Union 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
Intermediate Report attached hereto. Thereafter, the Union and the
General Counsel filed exceptions to the Intermediate Report, and the
General Counsel filed a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and the brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
93 NLRB No. 73.