United Brotherhood of Carpenters and Joiners of America

National Labor Relations Board - Board Decisions

Feb 6, 1951

93 N.L.R.B. 28 (N.L.R.B. 1951)

28' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL,
AND LOCAL No. 63, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL and JOHN H. ROSLAND. Case No. 13-CB-70.
February 6,1951
Decision and Order
On November 13, 1950, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent, Local No. 63, United Brotherhood of Carpenters and
Joiners of America, AFL, had engaged in and was engaging in certain
unfair labor practices, and recolmnendiug that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner also
recommended that the complaint be dismissed as to the Respondent
United Brotherhood of Carpenters and Joiners of America, AFL.
Thereafter, the Respondents filed exceptions to the Intermediate
Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.2 The Board has considered the
1 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 Houston and Reynolds].
2At the hearing, the Trial Examiner correctly denied the Respondent Unions' motion to
dismiss the complaint on the ground that the charge was not filed and served within the
6-month period prescribed by Section 10 (b) of the Act The Respondents have excepted
to this ruling. The facts upon which the motion was based are as follows :
John H Rosland was, as the Board has found, discriminatorily laid off on March 25, 1949.
He filed his charge with the Board on September 23, 1949, and mailed copies of the charge
to the Respondents on September 22, 1949 The charges were not, however, received by the
Respondents until Monday, September 26, 1949 The 6-month period for filing and serving
the charge expired on September 25, 1949, which was a Sunday The Trial Examiner
ruled that service on the following Monday was in proper time. Assuming arguendo that
the date of the receipt of a charge and not the date of mailing is controlling, we agree
with and affirm the Trial Examiner's ruling
Rule 6 (a) of the Rules of Civil. Procedure, 28 U S C A , provides that "In computing
any period of time prescribed or allowed by these rules, by order of the court, or by any
applicable statute, the day of the act, event, or default after which the designated period
of time begins to run is not to be included. The last day of a period so computed is to be
included, unless it is a Sunday or a legal holiday, in which event the period runs until
the end of the next day which is neither a Sunday nor a holiday" [Emphasis added ]
This rule embodies the common law practice Street V. United States, 133 U S. 299 ;
Sherwood Bros. Inc. V. District of Columbia, 113 F 2d 162 (C A. D C ). The limitation
Provision in Section 10 (b) was incorporated in the Act in 1947, after the adoption of the
Rules of Civil Procedure. It is therefore reasonable to assume, in the absence of any
evidence of intent to the contrary, that Congress had Rule 6 (a) as well as the common
law rule in mind when it adopted the 6-month limitation and that, therefore, "the con-
siderations of liberality and leniency which find expression in Rule 6 (a) are equally
applicable" to Section 10 (b). Union Nat. Bank of Wichita, Kansas v. Lamb, 337 U S. 38,
40, Simon v. Commissioner of Inteinal Revenue, 176 F 2d 230 (C A 2) , Sherwood Bros.
Inc. v District of Columbia, supra.
93 NLRB No. 5. -
UNITED BROTHERHOOD OF CARPENTERS, ETC. 29
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
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 the Respondent, Local No. 63, United
Brotherhood of Carpenters and Joiners of America, AFL, and its
officers and agents, shall :
1. Cease and desist from :
(a) Restraining or coercing employees of Crosby Construction
'Company, its successors or assigns, in the exercise of the rights guar-
anteed in Section 7 of the Act.
(b) Causing or attempting to cause Crosby Construction Company,
its agents, successors, or assigns, to discharge,. lay off, or otherwise
discriminate against John H. Rosland or any other employee, in vio-
lation of Section 8 (a) (3) of the Act.
2. Take 'the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Make whole John H. Rosland in the manner set forth in the
section of the Intermediate Report entitled "The remedy," for any
loss of pay incurred as a result of the discrimination against him .3
(b) Notify Crosby Construction Company and John H. Rosland,
in writing, that it has no objection to the reinstatement of John H.
Rosland to his former or a substantially equivalent position, without
prejudice to any seniority or other rights and privileges.
(c) Post at its Bloomington, Illinois, business offices, copies of the
notice attached hereto as Appendix A.4 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by an official representative of Respondent
Local No. 63, be posted by said Respondent immediately upon receipt
thereof, and maintained by it for a period of sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall
be taken by Respondent Local No. 63 to insure that said notices are
not altered, -defaced, or covered by any other material.
(d) Mail to the Regional Director for the Thirteenth Region signed
copies of the aforesaid notice, for posting at any Crosby Construction
Company construction job sites within the jurisdiction of Local No. 63.
3 Pen & Pencil Workers Union, Local 19593, AFL, 91 NLRB 88;
4In the event this Order is enforced by 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 Enloicing "
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The said notice shall be posted by Crosby Construction Company, if
willing, on bulletin boards where notices to employees are customarily
posted, and maintained thereon for a period of sixty (60) days there-
after.
(e) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is,
dismissed as to the Respondent United Brotherhood of Carpenters and
Joiners of America, AFL.
Appendix A
NOTICE TO ALL MEMBERS OF LOCAL No. 63, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL, AND TO ALL EMPLOYEES
OF CROSBY CONSTRUCTION COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
NE WILL NOT cause or attempt to cause CROSBY CONSTRUCTION
COMPANY, Chicago, Illinois, its officers, agents, successors, or
assigns to discharge, lay off, or otherwise discriminate against
JOHN H. ROSLAND, or any-other employee, in violation of Section
8 (a) (3) of the Act.
EVE WILL NOT in any like or related manner restrain or coerce
employees of CROSBY CONSTRUCTION COMPANY, in the right. to self-
organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, and to re-
frain 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 author-
ized in Section 8 (a) (3) of the Act.
WE WILL immediately notify CROSBY CONSTRUCTION COMPANY,
Chicago, Illinois, and JOHN H. ROSLAND, that Local No. 63,
United Brotherhood of Carpenters and Joiners of America,
AFL, has no objection to the immediate reinstatement of JOHN H.
ROSLAND to his former or a substantially equivalent position as an
employee of CROSBY CONSTRUCTION COMPANY.
UNITED BROTHERHOOD OF CARPENTERS, ETC. 31
WE WILL make JOHN H. ROSL AND whole for any loss of pay he
may have suffered because of the discrimination against him.
LOCAL No. 63, UNITED BROTHER-
HOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL.,
Union.
By ----------------------------------
(Itepiesentative) (Title)
Dated ----------------
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
Mr. Edward T. Ifaslanka, for the General Counsel.
Mr Francis X. Ward, of Indianapolis, Ind, for Respondents.
llr. Donald A. Morgan, of Peoria, Ill., for the Charging Party.
STATEMENT OF THE CASE
Upon a charge filed September 23, 1949, by John H. Rosland, hereinafter
referred to as Rosland, the General Counsel of the National Labor Relations
Board.' by the Regional Director for the Thirteenth Region (Chicago, Illinois),
issued a complaint dated September 18, 1950, against United Brotherhood of
Carpenters and J Diners of America, AFL, hei einatter referred to as the Brother-
hood, and Local No. 63, United Brotherhood of Carpenters and Joiners of America,
AFL, hei einafter referred to as the Local The complaint alleged that the
Brotherhood and the Local had engaged, and were engaging, in unfair labor
practices affecting commerce within the meaning of Section S (b) (1) (A),
Section S (b) (2), and Section 2 (6) and (7) of the National Labor Relations
Act, 61 Stat 136, as amended, herein called the Act Copies of the complaint,
the charge, and notice of hearing were duly served on both Respondents.
With respect to the unfair labor practices, the complaint alleged, in substance,
that Respondents, by their officers and agents, caused the Crosby Construction
Company, hereinafter called the Company, in violation of Section 8 (a) (3) of
the Act, discriminatorily to discharge, and thereafter discriminatorily to refuse
to reinstate, Rosland,"because he had refused to assist the Respondents and
because his membership in Respondents had been terminated on some ground
other than his failure to tender the periodic dues and the initiation fees uni-
formly required as a condition of acquiring or retaining membership.
Respondents by their answer denied generally the commission of any unfair
labor practice and specifically asked for the dismissal of the complaint on the
ground that Section 8 (b) (2) of the Act is unconstitutional.
Pursuant to notice, a hearing was held at Chicago, Illinois, on October 10, 1950,
before the undersigned Trial Examiner duly designated by the Chief Trial Ex-
aminer The General Counsel, the Respondents, and the Charging Party were
represented by counsel. Full opportunity to be heard, to examine and cross-
1 The General Counsel and his representative at the hearing are herein referred to as the
General Counsel and the National Labor Relations Board as the Board
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examine all witnesses, and to introduce evidence pertaining to the issues was
accorded all parties. Several motions by Respondents for dismissal of the pro-
ceeding made at the opening of the hearing were denied for the reasons stated
in the transcript. Their motion to dismiss, incorporated in the answer, based
on the alleged unconstitutionality of Section 8 (b) (2) of the Act, is hereby
denied on the authority of Rite-Form Corset Company, hie, 75 NLRB 174.
The General Counsel's motion to conform the pleadings to the proof as to names,
dates, and places was granted without objection. Since the close of the hearing,
a brief has been received from the General Counsel.
Upon the entire record in the case and from my observation of the witnesses
at the hearing, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Crosby Construction Company is an Illinois corporation engaged in the busi-
ness of designing and constructing industrial plants, and maintains its pricipal
offices at Chicago, Illinois During the fiscal year ending Febi nary 28, 1950, the
value of its construction work was in excess of $7,000,000 Of this amount, its
labor cost was approximately $2,:100,000, mateiials purchased by it were valued
in excess of $2,000,000, and approximately $2,500,000 was paid to its subcon-
tractors During this period it was engaged in the construction of a storage
plant for the Bloomington Ralston Purina Company at Bloomington, Illinois,
to be used in the storage and distiibution of soy beans and feed products The
total cost of this project was approximately $4,300,000. During the same period,
the Company was likewise engaged in the construction of plants to be used in
the manufacture of cement for the Dewey Portland Cement Company at Daven-
port, Iowa, the Dewey Portland Cement Company at Dewey, Oklahoma, and
the Volunteer Portland Cement Company at Knoxville, Tennessee. The ma-
terials used in the construction of all the foregoing protects were shipped to the
various construction sites from Chicago "and various parts of the country." I
find that the Company is engaged in commerce within the meaning of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
United Brotherhood of Carpenters and Joiners of America, AFL, and Local
No 63, United Brotherhood of Carpenters and Joiners of America, AFL. are
labor organizations admitting employees of the Company to membeishin
III THE UNFAIR LABOR PRACTICES
Bosland first joined the Carpenters Union in 1941 at Superior, Wisconsin,
began working for the Company in 1946 as a carpenter, and was accepted for
membership in Local 63 at Bloomington, Illinois, in September 1948 Though
the matter was not specifically developed, there is sufficient evidence in the
record to indicate that prior to January 1049 the Local had levied an assessment
of 25 cents per hour against all of its members who engaged in overtime work
on Saturday or Sunday It is also apparent from the record that Rosland had
been engaged in such Saturday woik and that demand had been made upon
him to pay the assessment afore-mentioned. Sometime in early January 1949,
Rosland prepared, and with 37 other members of the Local, signed a petition
demanding removal of all officers and agents of the Local because of alleged
corruption and other acts of malfeasance and forwarded this petition to the
office of the Brotherhood at Indianapolis, Indiana, on or about January 17, 1949.
UNITED BROTHERHOOD OF CARPENTERS, ETC. 33
At a meeting of the Local held later in January , Rosland objected to the type of
assessment afore -mentioned and suggested as an additional source of revenue for
the Union that its dues be raised from $2 to $3. Upon inquiry at that meeting
as to whether or not Rosland had paid the foregoing assessments to the current
date, the financial secretary reported that he was delinquent in that respect.
Kenneth Pearl , president of the Local , then announced that under such cir-
cumstances Itosland was no longer entitled to "a voice " in the affairs of the
Union and request was made that lie leave the meeting. Rosland complied.
On the following day, Dobbins , business representative of the Local , called on
Raymond Fransham , the Company ' s general superintendent on the Bloomington
job and on which Rosland was then engaged as a carpenter , and informed
Fransham that he "would have to discharge Mr. Rosland [ because ] he was sus-
pended from the Union " Franshani replied that he could not comply with
that request and that he had nothing to do with Rosland ' s union affairs . During
the course of the same conversation , Dobbins admitted he had instructed the
timekeeper not to give Rosland the brass identification check carried by em-
ployees Shortly thereafter , Fransham also had a conversation with Pearl,
during which Pearl asked him "to get rid of Mr Rosland . . . because he was
suspended from the Union "A similar request to discharge Rosland , and for the
same reason, was made to Fransham by Floyd Schlaegel , the Local 's steward on
the Bloomington job.
After Rosland was suspended f rom the Local, a union meeting with the -mem-
bers that had signed the petition afore-mentioned was held, but Rosland was
barred from attendance . George Ottens, international representative of the
carpenters organization ,' attended this meeting and subsequently told Rosland
that no man "was going to be railroaded in or out of that organization " and that
if Rosland was willing to pay what he owed , Ottens would see to it that he got
his "card or book " back Rosland complied , and on February 4, 1949, paid
Dobbins $19-$15 for the 25 cents an hour overtime assessments , and the
remainder for dues.
Rosland continued his work as a carpenter until March 25 , 1949. About a
week prior thereto, the company deemed it advisable to lay off 15 carpenters-
by reason of a shortage of lumber Fransham, as general superintendent, did
not select the-men to be laid off . but delegated that responsibility to the 3 car-
penter foremen, each of whom was instructed to lay off 5 men At that time
Frank Sartwell was Rosland 's foreman Sartwell submitted his list of car-
penters to be laid off and did not include Rosland on his list. On March 25,
Schlaegel talked to Fransham about the layoff that was about to take place
and *'requested that John Rosland be on the list " Fransham replied that he
had nothing to do with the list and that it Rosland ' s name did not appear on
the foremen 's list that he , Fransham , could not do anything about it Sartwell,
on that day, was transferred to another job in Iowa for a week, following which
Rosland ' s name appeared on the layoff list of another carpenter foreman, one
Freeman White . When Rosland was laid off on March 25 by White, the latter
told him that "he was awfully sorry that he had to lay [him] off , but on the
demand . . . of Mr. Schlaegel who represented . . . the carpenters organization,
he was forced to lay [him] off " When Sartwell returned about a week later,
he inquired of Fransham as to what happened to Rosland and was informed
"that [Rosland ] got in the shuffle and was in the layoff , that Schlaegel and
White picked him for the layoff while [ Sartwell ] was gone "
s He was so identified by Pearl, president of Local 63
943732-51-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Some of the 15 men laid off on March 25 were later recalled to work. When-
ever additional carpenters were required, the foreman would ask the steward,
or the Local's business agent, to send out additional men but Rosland was
never recalled. According to Fransham's testimony, "if it had not been for the
insistence of the union officials to lay off, Rosland, [the latter] would have
continued working on the job."
Concluding Findings
Absent "an agreement requiring membership in a labor organization as a
condition of employment as authorized in section 8 (a) (3) " of the Act, Section
7 thereof guarantees to employees "the right . . to join or assist labor or-
ganizations , . . . and . . . the right to ref am from . . . such activities."
[Emphasis' supplied ] Section 8 (a) (3) makes it unlawful for an employer
to discriminate in regard to hire or tenure of employment of its employees in
order to encourage or discourage membership in any labor organization. Section
8 (b) (2) makes it unlawful for a labor organization or its agents "to cause
or attempt to cause an employer to discriminate against an employee in viola-
tion" of Section 8 (a) (3). The foregoing provisions of,the Act are the only
ones to which attention need be directed in the resolution of the principal issue
involved herein. While the General Counsel in his complaint alludes to another
provision of Section 8 (b) (2) which makes it unlawful for a labor organization
or its agents to "cause or attempt to cause an employer . . to discriminate
against an employee with respect to whom membership in such organization
has been . . . terminated on some ground other than his failure to tender the
periodic dues . . . uniformly required as a condition of . . . retaining mem-
bership," that provision of the section has no bearing on this case. This is so
because the record makes it clear that there was not in existence any agreement
authorized by Section 8 (a) (3) requiring membership in the Union as a con-
dition of employment. Absent such an agreement, the last quoted portion of
Section 8 (b) (2) of the Act has no application, and the allegations of the com-
plaint that Rosland's membership was terminated "on some ground other than
his failure to tender the periodic dues . . uniformly required as a condition
of retaining membership" are surplusage.' On the instant record, therefore,
our only issue is, did the Respondent Unions on or about March 25, 1949, cause
the Company "discriminatorily to discharge, and thereafter discriminatorily to
refuse to reinstate John H Rosland" in violation of Section S (a) (3) of the
Act."
The evidence is clear and uncontradicted that following the January meeting
of the Local, its officers and shop stewards sought to have Rosland discharged
from his employment with the Company because he was no longer a member
of the Union. This request, if then complied with, even when standing alone,
and certainly when considered against the background of a threat by union
members, in the presence of the company superintendent, "to go fishing" if
, Because of this analysis , no further detailed concluding findings pertaining to the effect
of the termination of Roslands membership in the Union , or his payment or nonpayment
of 25 cents assessments , have been made by me For the same reason , I likewise deem it
unnecessary to give further consideration to what effect, if any, his piepaiation and
circulation of the petition to remove the Local ' s officials had on the termination of his
membership in the Union
4 The issue not being raised , I "do not pass upon the question whether the - Company
would be a necessary party respondent for the finding of a violation of Section 8 (b) (2) in
this case " J. K Paterson, 90 NLRB 1851.
UNITED BROTHERHOOD OF CARPENTERS, ETC. 35
nonmembers or "scabs" were retained on the job, would compel a finding that
the Local had thereby caused the Company to discriminate against Rosland in
violation of Section 8 (b) (2) of the Act Rosland, however, was not laid off
until March 25, at which time the Company found it necessary to lay off 15
carpenters because of a shortage of materials. It therefore became incumbent
upon the General Counsel to prove by a preponderance of evidence that either
or both Respondents caused the Company to discriminatorily select Rosland for
layoff that dav. A realistic consideration of the entire record compels the
conclusion that the General Counsel has sustained that burden.
As had been previously noted, it was clearly established that in January 1949
the Local sought to have the Company discriminate against Rosland It offered
no evidence whatsoever in contradiction of that testimony, or that it ever
receded or deviated from that objective It must therefore be assumed that
that objective remained unchanged 2 months later.'
It was likewise undisputed that on March 25, neither Superintendent Fran-
sham nor Rosland's foreman intended to lay Rosland off. Indeed Fransham
specifically declined Schlaegel's request to do so. It was only because Foreman
White, who normally would have no jurisdiction over Rosland, placed him on
the layoff list because he was "forced" to do so "on the demand of Mr. Schlaegel
who represented . . . the carpenters organization," that Rosland's services were
terminated. When asked "how Rosland's discharge come about," Fransham
testified that "if it had not been for the insistence of the union officials to lay
off Rosland, he would have continued working on the job," and that he (Fran-
sham ) did not "demand that the foreman . . and [Schlaegel] . . . keep
6him, on account of the pressure that had been put on by the Union."
On the entiregrecord, T am convinced and find that the local caused the Com-
pany to discriminate against Rosland in violation of the provisions of Section 8
(a) (3) of the Act, and that the Local thereby acted in contravention of Sec-
tion 8 (b) (2) of the Act'
The General Counsel in his brief concedes, and I find, there is nothing in the
record to sustain a finding that the Brotherhood took any part in the action
which resulted in Rosland's layoff. It will, therefore, be recommended that
the complaint nisofai as it alleges a violation of the Act by the Brotherhood
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Local set forth in Section III, above, occurring in con-
nection with the operations of the Company set forth in Section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
8 Wigmore on Evidence, T'hu'd Edition, Volume II, Section 437.
6 When asked whether he had ever talked "to Mr Crosby in regard to the layoff of
Mr. Rosland ," Franshain testified as follows "He told me that I could not lay him off
for being suspended from the Union until I had a reduction in force before it would be
possible for inc to let 111111 go
' Air Products, Incorporated , 91 NLRB 1381 , Randolph Coiporation, 89 NLRB 1490.
See also Pen and Pencil Workers Union, Local 19593, AFL and lVilhelm¢na Becker, 91
NLRB 883 In that case, the employer complied with a request of the union to dis-
charge an employee for retusal to pay a fine unposed by it for violation of an unspecified
union rule Notiiithstanding the existence of a valid union-security agreement, the Board
had no hesitation in concluding that by such conduct the Union "caused the Employer to
discriminate against [the employee] in violation of Section 8 (b) (2) of the Act" A
fortiori, the same iesult nnist certainly be reached here, where, admittedly, there was no
union -security agreement lit effept.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Local has engaged in certain Unfair labor practices
it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
The Employer is not a respondent in this proceeding The case is therefore
similar in that respect to Pen and Peictt Woikers Union, Local 19593, AFL and
Wrlltelnstna Becker, 91 NLRB 853, in which the Board established its policy
with reference to the remedy to be accorded in such situations. In accordance-
with that decision, it will be recommended that the Local notify both the Com-
pany and Rosland that it has no objection to Rosland's immediate reinstatement
to his former or a substantially equivalent position as an employer of the Com-
pany, without prejudice to his seniority or other rights or privileges It will be-
fui they recommended in older to effectuate the policies of the Act, that the Local,
which I have found is responsible for the discrimination suffered by Rosland,
make him whole, as closely as possible, for any loss of pay or other incidents
of the employment relationship he may have suffered by reason of the Local's
unlawful conduct, including Rosland's right as an employ ee to participate in
State, Federal, social security, and other similar benefits, to the extent that
such right was diminished by reason of the discrimination. In order that such
rights may be restored, the necessary deposits must be made with the appro-
priate State and Federal agencies to the credit of Rosland and the Company. The
Local, however, shall have the same right as the Company would have had, if this
liability had fallen upon it, to deduct the amount of the employee contribution
from the monies paid to Rosland. Accordingly, it will be recommended that the
Local be required (1) to pay to Rosland a sum of money equal to the amount
that he normally would have earned as wages from March 26, 1949, the date
of the discrimination, to 5 days after the date on which the Local notifies
the Company and Rosland, in accordance with the recommended order herein,
that it no longer has objection to his immediate reinstatement,' less his net
earnings ° during such period, and less such other sums as the Company, absent
the discrimination, would normally have deducted from his wages for deposit
with State and Federal agencies on account of social security and other similar
benefits ; and (2) to pay to the appropriate State and Federal agencies, to the
credit of Rosland and the Company, a sum of money equal to the amount which,
absent the discrimination, would have been deposited to such credit by the
Company, either as a tax upon the Company or on account of the deductions made
from Rosland's wares by the Company, on account of such social security or
other similar benefits
Consistent with the Board's recently established policy," it will be recommended
that the loss of pay be computed on the basis of each separate calendar quarter or
portion thereof during the period from the date of Rosland's discharge to the
8 Pvnkerton's National Detectiac Agency, Inc., 90 NLRB 205
9 By "net cainings" is meant earnings less expenses, such as for transportation, room, and'
board incurred by an employee in connection with obtaining work and working elsewhere
than foi the Company, which would not have been incurred but for the unfair labor
practices and the consequent necessity of his seeking employment elsewhere See Crossett
Lumber Company, Lac, 8 NLRB 440. Monies received for work performed upon Federal,
State, county, municipal, or other Ronk-relief projc,ts shall be considered as earnings. See,
Republic Steel Corporation v N L R B, 311 Ji S 7.
'° F. W. Woolworth Company, 90 NLRB 289.
LUCILLE OF HOLLYWOOD 37
termination of the Local's liability, as hereinbefore provided The quarterly
periods, hereinafter called "quarters," shall begin with the first day of January,
April, July. and October. Loss of pay shall be determined by deducting from a
slum equal to that which Rosland would normally have earned for each quarter
or portion thereof, his net earnings, if any, in other employment during that
period. Earnings in one pai titular quarter shall hai e no effect upon the back-pay
liability for any other quarter.
It is further recommended that the Board expressly reserve the right to modify
the back-pay provisions if made necessary by a change of conditions in the future,
and to make such supplements thereto as may become necessary in order to define
or clarify their application to a specific set of circumstances not now apparent."
Upon the basis of the foregoing findings of fact and upon the entire record in
this case, I make the following:
CONCLUSIONS of LAW
1 The Company is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
2 The Local is a labor organization within the meaning of Section 2 (5) of
the Act.
3. By causing the Company to discriminate against John H. Rosland in viola-
tion of Section S (a) (3) of the Act, the Local has engaged in and is engaging in
unfair labor practices within the meaning of Section S (b) (2) of the At.
4 By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act, the Local has engaged in and is engaging in unfair labor
practices within the meaning of Section S (b) (1) (A) of the Act'2
5 The aforesaid unfair labor practices are unfair labor practices affecting
-commerce within the meaning of Section 2 (6) and (7) of the Act.
6 The Brotherhood has not engaged in the unfair labor practices alleged in
the complaint. -
[Recommended Order omitted from publication in this volume
"Fairmont Creamery Company, 64 NLRB 824: of N L R B v New York Merchandise
Company, Inc, 134 F. 2d 949 (C A 2 ) ; International Union v. Eagle-Pieher Miniingi and
Smelting Co ., 325 U S 335
"Randolph Corporation , 89 NLRB 1490 ; Union Starch d Refining Company , 87 NLRB
779; Clara-Pal Packing Company, 87 NLRB 703.
LUCILLE Ol" HOLLYWOOD and UNDERGARMENT WORKERS UNION LOCAL
No. 496
LUCILLE OF HOLLYWOOD and UNDERGARMENT WORKERS UNION LOCAL
No. 496. Cases Nos. 21-CA-673 and P31-CA-737. February 7,
1951
Decision and Order
On November 13, 1950, Trial Examiner Maurice M. Miller issued
his Intermediate Report in this proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the com-
93 NLRB No. 16.
0