Brunswick Corp.

National Labor Relations Board - Board Decisions

Jun 28, 1961

131 N.L.R.B. 1338 (N.L.R.B. 1961)

1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is evidence that 5 of 10 employees laid off on February 26 actively par-
ticipated in obtaining names to slips or a list : Smith , Jordan , Miller, Black, and
White. Only as to one of the five (White ) is there evidence from which it might
be surmised that any management representative knew of his activity . According
to White, he was warned before his layoff by his foreman , Don Martin , that he
had better keep his "mouth shut about the Union " for his "own good." Not only
did Martin deny making any statement about the Union after January 1, 1960, but
White fixed the date of the occurrence as either February 21 or 22. Other evidence
establishes that actual organizational efforts, in getting names, did not begin until
after a visit had been made to union headquarters in Springfield , Ohio, and that this
visit was made on February 22. This lack of certainty in the record will not firmly
support a finding , in the opinion of the Trial Examiner , that Martin in fact uttered
this warning to White.
As to employee Brammer the Trial Examiner finds, on the basis of his credible
testimony , that on February 26, the date of the first 10 layoffs and a week before
his own on March 4, he was told by his foreman , Young, that if he wanted to hold
his job he had better have nothing to do with the Union . While this warning was
clearly coercive , it does not establish that management was aware he had signed
a slip . Indeed according to his own testimony , when Young asked him if he had
anything to do with the Union he replied "No."
It is the Respondent 's contention , as heretofore noted , that all 19 layoffs here
involved as well as many more were necessitated by business reasons . There is no
evidence in the record upon which it may be found that a recession in business de-
mands did not exist at the material time.
Nor is there sufficient credible evidence to support a finding that the selection of
these 19 individuals was unlawfully discriminatory-that is, that even if layoffs were
economically necessary management should have selected others instead of these 19.
A quick check of company records , in evidence and unchallenged by General
Counsel, shows that from the latter part of November 1959 , through July 1960, there
were group layoffs almost weekly , totaling about 250 employees.
In short , the Trial Examiner concludes and finds that the preponderance of evi-
dence does not support the allegations of the complaint as to the layoffs.
As to incidents of interference , in addition to that involving employee Brammer
and Foreman Martin noted above the record contains evidence only as to one of
any consequence. An employee still working at the plant at the time of the hearing,
Thatcher, testified somewhat vaguely that about February 26, 1960 , the same fore-
man asked him if he had anything to do with the Union , and told him if he was
smart he would have nothing to do with it.
To the Trial Examiner these two incidents , even if the latter occurred , in a plant
of some 800 or 900 employees are so isolated as to warrant no conclusion of an
unfair labor practice.
[Recommendations omitted from publication.]
Brunswick Corporation and Richard H. Lemay and Frederick
J. Knapik
Local 107, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO [Brunswick Corporation ] and Richard H.
Lemay and Frederick J. Knapik. Cases Nos. 1-CA-3112(1-2)
and 1-CB-628(1-). June 28, 1961
DECISION AND ORDER
On August 2, 1960, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had not engaged in any unfair labor practice
alleged in the complaint and recommending that the complaint be
131 NLRB No. 167.
BRUNSWICK CORPORATION 1339
dismissed, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent Company, the Respondent Union,
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with these cases to a three-member panel [Members
Leedom, Fanning, and Brown].
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
Intermediate Report, the exceptions and briefs, and the entire record
in the cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications and ex-
ceptions noted below.
1. The Trial Examiner found that the Respondent Union's busi-
ness agent, Shusta, "requested" or "suggested" to Respondent Com-
pany's foreman, Nason, that Nason hired unemployed carpenters
rather than the Charging Parties, Knapik and Lemay, who Shusta
believed were then employed. Because the Trial Examiner was of
the opinion that such action on Shusta's part did not constitute a re-
fusal to clear or endorse Knapik and Lemay for employment, he
found that by merely requesting or suggesting such action on the
Respondent Company's part, the Respondent Union had not caused
or attempted to cause the Company to unlawfully discriminate
against Knapik and Lemay within the meaning of Section 8 (b) (2)
and (1) (A).
We agree with the Trial Examiner that no violation of Section
8(b) (2) and (1) (A) can be predicated upon the facts in this case.
However, in so doing we are of the opinion, and so find, that the evi-
dence in the record is insufficient to support a finding that a "request"
or "suggestion" not to employ Knapik and Lemay was made by
Shusta. We cannot extract from the testimony of Shusta and Nason
anything more than that in the course of their conversation Shusta
expressed a hope that Nason in hiring carpenters would follow what,
in Shusta's opinion, was the salutary policy of spreading the avail-
able work among the many carpenters in the area who were unem-
ployed. Nor can we rely, as the Trial Examiner apparently relied,
on Knapik's testimony concerning the statements made by Deitch
as to the reason he and Lemay were not hired since that testimony,
regardless of Deitch's status, is as to the Respondent Union clearly
hearsay. It is accordingly unnecessary to pass on the Trial Exam-
iner's opinion as to what constitutes an actionable refusal to "clear"
'The Respondent Company's request for oral argument is hereby denied as the record,
the exceptions , and the briefs adequately present the issues and the positions of the parties.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or "endorse," nor do we think it necessary to comment on his refer-
ence to Denver Building and Construction Trades Council, et al.
(Henry Shore) 2 and related cited cases, and their applicability in a
factual situation not present here.
2. We also agree with the Trial Examiner that the Respondent
Company did not violate Section 8(a) (3) and (1) of the Act by re-
fusing to employ Knapik and Lemay. Foreman Nason, who had
complete and sole authority to hire additional personnel for the job,
was not asked for, nor did he offer, any explanation for not employ-
ing Knapik and Lemay, and, as indicated, there is no substantial evi-
dence in the record that Shusta requested Nason not hire them.
The General Counsel contends, however, that the Trial Examiner
erred in failing to find that certain statements made by Deitch, an
employee of the Respondent Company, to Knapik and Lemay estab-
lished that the Respondent Company's failure to hire them was dis-
criminatorily motivated. The evidence shows that Deitch was present
at Shusta's office, where, admittedly, some conversation about hir-
ing took place between Shusta and Foreman Nason. According to
Knapik's testimony, Deitch thereafter informed Knapik and Lemay
that they were not being hired because "your business agent [Shusta]
says I can't put you to work." It is this testimony, the General Coun-
sel maintains, which supports a finding of discriminatory motivation
in the Respondent Company's failure to hire Knapik and Lemay.
Deitch himself did not testify. Neither party called him, although
he apparently was available. According to Nason, Deitch was merely
an apprentice bowling alley mechanic whose duty it was to prepare
a job for Nason's crew. This Deitch had done during the week pre-
ceding the arrival of Nason and his crew. But, it is clear that, al-
though he had hired one employee to help with the preliminary work
for 1 day, Deitch had no general authority to hire for the actual work
of installation of the bowling alleys and that he had made such lack
of authority clear to Knapik and Lemay. There is no evidence in
the record that Nason authorized Deitch to furnish an explanation to
Knapik or Lemay, or that Nason knew, prior to the hearing, that
Deitch had made such statements to them. We accordingly conclude,
upon all the foregoing that whatever authority Deitch had to act on
behalf of the Respondent Company was of such insignificant nature
that we cannot regard his statements in the circumstances as substan-
tial evidence of the Respondent Company's reason for not hiring
Knapik and Lemay.
In view of our findings above and the record as a whole, we shall
dismiss the complaints in their entirety.
[The Board dismissed the complaints.]
2 90 NLRB 1788.
BRUNSWICK CORPORATION 1341
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges of unfair labor practices filed on January 25, 1960 , by Richard
H. Lemay and Frederick J. Knapik the General Counsel of the Board issued the
instant complaints on March 15 , 1960, against Brunswick Corporation , Chicago,
Illinois ( the Company ), and Local 107 , United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, Worcester , Massachusetts ( the Union ), alleging
violations of Section 8(a) (1) and ( 3) of the National Labor Relations Act (61 Stat.
136) by the Company, and of Section 8 (b)(1)(A) and 8(b)(2) of the Act by
the Union.
Specifically , the complaints alleged that on or about January 18, 1960 , the Com-
pany refused to hire Lemay and Knapik for the reason that the Union had refused
to clear them for employment ; and further , that the Union caused such action by
the Company . In due course both Respondents filed answers denying these
allegations.
Upon due notice a hearing was held at Worcester , Massachusetts , on May 5 and
6, 1960, before the duly designated Trial Examiner. The General Counsel and the
Respondents appeared , were represented by counsel , participated in the hearing, and
were afforded full opportunity to present and to meet material evidence , to engage
in oral argument, and to file briefs and proposed findings. On June 6, 1960, the
Union filed a memorandum of law ; on June 10 the General Counsel and the Com-
pany filed briefs ; on July 1 the General Counsel filed an erratum and addendum
to his brief. These have been considered.
Upon the basis of the entire record in the case, and after consideration of all the
relevant evidence and contentions , including observation of the witnesses and their
demeanor , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Brunswick Corporation is a Delaware corporation maintaining its principal office
in Chicago , Illinois. Among other activities it is engaged in the manufacture, sale,
distribution , and installation of bowling and billiard equipment. In connection
therewith the Company operates a plant at Muskegon , Michigan , from which sub-
stantial quantities of bowling and billiard equipment , valued at over $50,000
annually, are sold and transported in interstate commerce to other States of the
United States.
It is admitted that the Company is engaged in commerce wihin the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 107, United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In the early part of January 1960 , the R & J Construction Company was erecting
a building in Worcester , Massachusetts , to house 24 bowling alleys. The Respondent
Company, Brunswick Corporation , held the contract to install these alleys. Among
a number of carpenters employed on the project by R & J were the two Charging
Parties, Frederick J. Knapik and Richard H. Lemay. Both Knapik and Lemay
were and are members in good standing of the Respondent Union.
On Wednesday , January 13, 1960, one Burton Deitch , a company representative,
appeared at the jobsite to prepare for the arrival of the Company 's construction crew
on the following week.
On that day Kenneth Matthews , a member in good standing of the Union, was at
the project in search of employment . Upon the recommendation of the general
contractor, Deitch engaged Matthews to assist him in his preparations . In that con-
nection Deitch , with the help of Matthews , checked the proper placement of curtain
walls, surveyed the alley beds for high spots, and began to remove obstructions-
such as lumber-from the work area. At the end of the day, Deitch told Matthews
(who was interested in continued employment ) to return on the following Monday,
when the crew was expected to arrive. Deitch further told Matthews, in substance,
that the installation work would be under the supervision of the crew foreman,
Lester Nason , who would select any additional personnel needed , but that Deitch
would "put in a good word" for Matthews.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Knapik and Lemay , though employed on the project by R & J , were also interested
in working on the alley installation , and expressed their interest to their employer.
In the afternoon of that same Wednesday Deitch came over to Knapik and Lemay,
asked for their names, and wrote them on a slip of paper on which were written the
names of Kenneth Matthews and Jack Porter . Porter was also a carpenter and mem-
ber of the Union . Deitch told Knapik and Lemay , in substance , that he would refer
their names to the foreman , who would be in on Monday . Deitch further added
that he would not be on the job because he was being transferred to another project.
When Lemay asked Deitch to take the name of Lemay's uncle, Deitch stated , "Well,
I've got four names already . . . when you come to work Monday , you speak to
the other foreman to try to get your uncle on."
Knapik and Lemay worked until the end of that week for R & J.
On the following Monday morning, January 18 , Knapik , Lemay, Matthews,
Porter, and a number of other persons interested in employment gathered at the
project . As Knapik testified , the site was "full of workers looking for jobs." At
around 8 a.m. the Company's crew , consisting of Foreman Nason and four other
employees , members of another local of the Carpenters Union , arrived. Though he
had previously indicated that he would not be present , Burton Deitch also appeared.
Shortly after arriving at the ' project , Foreman Nason , Deitch, and the other
members of the crew went to the office of the Union for the purpose of signing
cards for the allocation of health and Welfare fund payments.' The job applicants
awaited their return.
At the union office Foreman Nason , in the presence of Deitch , had the following
conversation with Andrew E. Shusta, the Union 's business agent or representative.
Both Nason and Shusta were called by the General Counsel . Neither was a willing
witness. Deitch was not a witness.
Shusta asked Nason whether Nason intended to hire any local carpenters , express-
ing the hope that, because of substantial unemployment in the area, Nason would
do so. Nason replied that he intended to hire additional men, and showed Shusta
the list containing the names of Porter , Matthews , Knapik , and Lemay . Shusta said
that they were all union carpenters and good ones. Nason said that he would hire
Porter and Matthews and that he would probably need other men later. Though the
issue is disputed , I find as a fact that at some point in the conversation Shusta told
Nason that Lemay and Knapik were working on the R & J job, and had been for
some time ; and, further , that Shusta suggested that Nason hire unemployed , rather
than employed , carpenters?
Nason , Deitch, and the crew then returned to the project. Knapik's uncontra-
dicted and credited testimony as to what then happened is as follows.
Deitch came over to Knapik and Lemay , who had been awaiting the crew's return,
and advised them that he was unable to employ them because , "your business agent
says I can 't put you to work ." Knapik further quoted Deitch as saying that Shusta,
"didn 't want me to put Kenneth Matthews on, but I told him he had worked for
me already one day last week, so therefore he says put him on , and Jack Porter, but
don't put on Knapik and Lemay ." Knapik protested , saying "what 's the matter with
you, you've got your own rights , you've got a right to hire me, or anybody else
there, and you don 't have to listen to the agent." Deitch replied "Yes, I know, but
we're a big company and we don 't want any trouble ." After a while Knapik and
Lemay left the premises and went to the union hall to complain to Shusta , but were
unable to locate him. They then sent a protest telegram to the general offices of
the Union to the effect that they had been refused employment.
That conversation was not in the presence of Nason.
1 Under the Carpenters Union's collective -bargaining contracts in the area , an employee's
health and welfare account in his home district may be credited with work and payments
in another district covered by a contract with a different local
2 Though the testimony of the only two participants in this conversation who testified,
Shusta and Nason, does not indicate that Shusta suggested the hiring of unemployed
carpenters in preference to Lemay and Knapik, I think the conclusion inescapable, under
the circumstances , that Shusta did so. Nason testified that Shusta told him that Lemay
and Knapik were already working and had been working steadily, or "something to that
effect." Though Shusta denied telling Nason that Lemay and Knaplk did not need the
work as much as others because they were already working , he admitted that he might
have said that the two were working for the R & J Company As will be seen, when
Nason and Deitch returned to the jobsite Deitch informed Lemay and Knapik that he
could not put them to work because Shusta had said that he should not I do not think
it credible that no suggestion concerning the employment of Lemay and Knapik was made
during the conversation at the union office.
BRUNSWICK CORPORATION 1343
During the next few days Nason hired three other carpenters for work on the
project, Edgar LeBlanc , Charles Stebbens , and Norman Whittles, all members in
good standing in, and apparently referred by, the Union . Though examined and
cross-examined , Nason was not asked for, and did not offer , any explanation for the
failure to hire Lemay and Knapik . However, neither Lemay nor Knapik at any time
directly requested Nason for employment.
Concluding Findings
As has been seen , the gist of the complaints is that Knapik and Lemay were not
hired for the reason that the Union refused to clear them for employment. The
General Counsel 's contention , stated in his brief , is that the facts establish that
Shusta refused to "endorse" Knapik and Lemay. The Company 's consequent failure
to hire them , the contention runs, constituted discrimination and encouragement of
union membership . The General Counsel 's position , in sum , is that any failure to
secure employment as a consequence of union disapproval or request is an unfair
labor practice . The General Counsel further asserts that the evidence fully estab-
lishes both the union refusal to endorse and company refusal to hire for that reason.
The Union's contention is that there is no competent evidence of union responsi-
bility; that is, that the only evidence of discrimination is Knapik 's testimony to the
effect that Deitch told him that Shusta would not let Deitch put Knapik and Lemay
to work ; that this is heresay as to the Union and not substantial evidence of union
action.
The Company 's position is severalfold : ( 1) that Knapik and Lemay did not apply
for employment ; ( 2) the Company did not refuse to hire them ; ( 3) the Union did
not refuse to clear them ; and (4) that in any event the failure of Knapik and Lemay
to secure employment is not attributable to the Union's refusal to clear them for
employment . More specifically , the Company denies the authority of Deitch to hire,
or to make any declaration binding on the Company.
The Company 's points 1 and 2 can be disposed of briefly: the evidence is clear
that Knapik and Lemay were applicants for employment ; that Nason , an admitted
hiring supervisor , knew of their interest in employment ; and that Knapik and Lemay
were not hired , though other carpenters were. The Company 's contentions in these
respects are rejected.
We turn then to the other points raised by the parties.
The first question is whether Deitch 's declarations are imputable to the Company.
If the answer to this threshold question is in the negative , there is no substantial evi-
dence as to any reason for the failure to hire Knapik and Lemay, and both com-
plaints must be dismissed . If the answer is in the affirmative , the next question is
whether the evidence establishes that the Union refused to clear Knapik and Lemay
for employment . And if the answer to that inquiry is affirmative , then it must be
determined whether the Company refused to hire Knapik and Lemay for such reason.
The final question is whether action of such kind by the Company and the Union is
violative of the Act.
1. The authority of Deitch
The General Counsel contends that Deitch 's statements are admissions by the
Company and that Deitch had hiring authority . The Company denies both alle-
gations. In no event , of course , are Deitch 's declarations imputable to the Union.
The decisive question regarding Deitch is whether the circumstances warrant the
conclusion that he possessed authority to state to Knapik and Lemay on January 18,
1960, the reason why they were not hired . In deciding that question I assume, in
accordance with Foreman Nason 's testimony , that Deitch had no authority to hire
Knapik and Lemay-testimony corroborated , I think , by Deitch 's statements to
Knapik and Lemay on January 13 to the effect that Nason would do the hiring.
However, authority in Deitch to hire on January 18 is not a prerequisite to com-
pany responsibility for his declaration on that date as to why they were not hired.
Proof of hiring authority in Deitch would perhaps be conclusive in that respect-but
it is not essential.
It is clear that, though he was described by Foreman Nason as "an apprentice
bowling alley mechanic ," Deitch was no mere volunteer in enlisting applicants for
employment . He was sent to the job by the Company to prepare it for Nason 's crew.
In connection therewith he hired Matthews-a demonstration of exercise of super-
visory or managerial authority . It seems evident from the circumstances, -and I
find, that Deitch possessed authority to make reasonable preparations for the com-
mencement of the job . Included in this authority was the securing of the names of
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
potential personnel from which Nason could make a selection of employees. Deitch
fulfilled that responsibility. In the process he spoke to Knapik, Lemay, and Matthews
about employment, put their names on a list , and gave the list to Nason. Deitch's
refusal to add the name of Lemay's uncle to the list is indication that his authority
involved the exercise of some discretion. From all this it seems apparent, and I
find, that Deitch was authorized to take action-albeit limited-looking to the re-
cruitment of employees, including the power to refuse to consider some applicants
for referral.
On the following Monday Deitch gave his list to Foreman Nason, who used it in
connection with his discussion with Business Agent Shusta. Nason was aware that
all the persons on the list were applying for employment-that was its purpose.
Indeed, he hired two of them-Matthews and Porter. Deitch accompanied Nason
to the union headquarters and participated in the discussion concerning the names
on the list which included Knapik and Lemay. When Nason and Deitch returned to
the job from the union hall it was Deitch, and not Nason, who told Knapik and
Lemay that they would not be hired. There is no explanation as to why Nason did
not do so, if Deitch lacked such authority. Under the circumstances I conclude
that Deitch was authorized to inform Knapik and Lemay that they could not be
hired. Manifestly an explanation of the reason therefor was, under the circum-
stances, within the scope of that authority. Deitch's statements on that occasion
are thus imputable to the Company.
We turn then to the probative effect of those statements.
2. Whether the Union refused to "clear" or "endorse" Knapik and Lemay
The evidence does not substantiate this allegation of the complaints and of the
General Counsel's brief. The facts recounted by Business Agent Shusta and Fore-
man Nason as to the occurrences at the union office, or reasonably inferrable, will
not support a finding that the Union refused to clear or endorse Knapik and Lemay.
To be actionable under this statute, a refusal to clear or endorse must import
something more than the mere withholding of approval. For unless a union has,
by agreement, understanding, or arrangement with an employer, or by practice, been
invested with authority to supply or reject applicants for employment, it is under no
duty, statutory or otherwise, to give affirmative approval of such applicants. Here
no such agreement, understanding, arrangement or practice is shown. Neither the
failure to hire Knapik and Lemay nor the subsequent hiring of men referred by the
Union establishes one. Maxon Construction Company, Inc., 112 NLRB 444, 451;
A. B. Swinerton, et al., d/b/a Swinerton and Walberg Company, 202 F. 2d 511, 514
(C.A. 9). The most that the record will show with respect to union action is that
Shusta requested or suggested that Nason hire unemployed carpenters rather than
Knapik and Lemay, whom he believed to have jobs. Such action does not, under the
presented circumstances, constitute an actionable refusal to clear or endorse Knapik
and Lemay for employment. The complaint against the Union must therefore fall
for this reason.
3. Whether the Company refused to hire Knapik and Lemay in the
belief that the Union would not clear them
It does not necessarily follow, however-though the Company asserts that it
does-that the complaint against the Company automatically falls with that against
the Union. The Company's contention in this respect is that, the Union not having
refused to clear Knapik or Lemay, the Company cannot have refused to hire them
for that reason. However, the Company could still decline, discriminatorily, to hire
Knapik and Lemay if it believed-albeit erroneously-that the Union was refusing
to clear them. Such action could constitute an unfair labor practice. The complaint
against the Company is to be construed as containing such an allegation. A finding
of union violation of Section 8(b)(2) is therefore not a prerequisite to a finding of
company violation of Section 8(a) (3).
But I find no substantial evidence to warrant the inference that the Company's
motivation for not hiring Knapik and Lemay was the Union's refusal to clear them-
despite what Deitch said to Knapik. As has been seen , the union conduct which is
alleged as the basis for the company action does not constitute such a refusal. On
the evidence presented there is no reasonable ground for Deitch to have concluded
that it did. It is consequently found that the evidence is inadequate to establish as
a fact that the Company refused to hire Knapik and Lemay for the reason that the
Union was refusing to clear them for employment.
BRUNSWICK CORPORATION 1345,
What motivated Deitch to make the statement must be left to speculation. That
he had authority to make the declaration does not establish its truth, and the Com-
pany's belief in its truth is, in the final analysis , what must be found if the declara-
tion is of any relevance . This I cannot find.
4. Whether the Union suggestion that the Company not hire Knapik and Lemay is
an unfair labor practice
I have concluded that in the conversation at the union hall Union Business Agent
Shusta made known to company representatives, Nason and Deitch , the Union's
desire that, because of the unemployment in the area , the Company hire unemployed
rather than employed carpenters-in that connection pointing out that Knapik and
Lemay had jobs with the R & J Company . However it be phrased , I construe
Shusta's action as a suggestion or request that the unemployed be hired before
Knapik and Lemay. Contrary to the Company's contention ( brief p . 30), I find
Shusta's statements binding upon the Union . Sunset Line & Twine Company, 79
NLRB 1487 , 1507-1512; Peerless Quarries , Inc., 92 NLRB 1194, 1197.
We have seen that no agreement , practice , arrangement , or understanding existed
between the Company and the Union concerning hiring. And it having been found
that there was no union refusal to clear or endorse , or company omission to hire
because of such a refusal , we come to the General Counsel 's final contention , namely,
that any failure to secure employment as a consequence of union disapproval or
request is an unfair labor practice.
The General Counsel cites several cases in support of this proposition: The Radio
Officers' Union of the Commercial Telegraphers Union , AFL (A. H. Bull Steamship
Company ) v. N.L R.B., 347 U.S. 17; American Pipe & Steel Corporation , 93 NLRB
54; Turner Construction Company, 110 NLRB 1860 ; and Verve Recoeds, Inc., 127
NLRB 1045.
Those cases are distinguishable from that here . In three of them (American
Pipe, Turner , and Verve) the union was the sole or exclusive source of the employers'
labor supply , and/or union referral , sponsorship , or approval was required as a
condition of hiring pursuant to agreement , understanding , or practice . Here there
were no such requirements . These three cases are therefore inapposite.
We turn then to the Radio Officers' case. There a collective-bargaining contract
between the Radio Officers' Union and Bull Steamship Lines required Bull to employ
only union members in good standing as radio officers on Bull's ships. The contract
also required the union to clear such employees for employment . There was no
hiring-hall arrangement. Bull offered one Fowler , a union member in good stand-
ing, a job as radio officer , and Fowler accepted . The secreary of the union there-
upon-in violation of the union 's constitution and bylaws-suspended Fowler from
membership for "bumping " the prior occupant of the job, and for "taking a job
without clearance." (Radio Officers' Union, etc. (A. H. Bull Steamship Company),
347 U.S. 17, 30. ) The secretary then notified Bull that Fowler was not in good
standing with the union . Subsequent requests for clearance of Fowler were refused,
the union secretary stating that the union "would never again clear Fowler for a
position" with Bull . (Id., p. 31 .) As a consequence , Fowler was not put to work
by Bull.
The Board held that the effect of this action against Fowler was to "enforce . .
his obedience as a [union ] member of such rules as the [union ] might prescribe,"
and "of encouraging Fowler and other members to retain their membership in the
[union] either through fear of the consequences of dropping out of membership or
through hope of advantage in staying in." The Supreme Court held that this con-
clusion was within the authority of the Board . The Court said (Id., p. 52) :
The circumstances in Radio Officers' and Teamsters are nearly identical. In
each case the employer discriminated upon the instigation of the union. The
purposes of the unions in causing such discrimination clearly were to encourage
members to perform obligations or supposed obligations of membership. Obvi-
ously, the unions would not have invoked such a sanction had they not con-
sidered it an effective method of coercing compliance with union obligations
or practices . Both Boston and Fowler were denied jobs by employers solely
because of the unions' actions . Since encouragement of union membership is
obviously a natural and forseeable consequence of any employer discrim-
ination at the request of a union, those employers must be presumed to have
intended such encouragement . It follows that it was eminently reasonable for
the Board to infer encouragement of union membership. . . :'
599198-62-vol. 131-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The differences between the Radio Officers' situation and that here are evident
from the facts stated above. In Radio Officers' union membership in good standing
was required as a condition of employment, and the collective-bargaining contract
required the union to give clearance to union members in good standing. The union's
refusal of clearance was thus in breach of the contract. Bull actually offered em-
ployment to Fowler, and Fowler accepted it. To prevent the consummation of the
employment the union deprived Fowler of his membership in good standing-which
was a prerequisite of employment under the contract. This action was in violation
of the union's constitution and bylaws.
In the present case there was no requirement in contract or practice for union
clearance of applicants for employment; Knapik and Lemay were never offered jobs
or told that they would be hired; the Union took no action-other than request or
suggestion-designed to prevent the Company from hiring them; the Union did not
object to their hiring; it did not threaten the Company nor Knapik nor Lemay; it
took no action to affect union membership.
The decisions in the Radio Officers' case, both of the Board and the Supreme
Court, make it clear that the vice of the conduct there lay in "causing . . dis-
crimination . to encourage members to perform obligations or supposed obliga-
tions of membership." (Id., p. 52, 32.) There is no evidence in the instant case
of any obligations, real or supposed, of union membership involved in the situation.
There is no showing of any union rule or regulation preventing the employment of
Knapik or Lemay in the circumstances, or forbidding their seeking or accepting the
employment involved. Business Agent Shusta told Foreman Nason that the two
were good carpenters and union members in good standing. Nothing which Shusta
did or said, or which the Company may have may have done in response thereto,
could have any tendency to encourage Knapik or Lemay-or any other union
member-to perform any obligation of union membership, or to seek to maintain
membership in the Union in good standing.
It is not an unfair labor practice for a union to request an employer to discriminate
against employees-even on the basis of union membership or nonmembership-
unless there is resort to economic pressure, such as picketing. Denver Building and
Construction Trades Council, etc. (Henry Shore), 90 NLRB 1768; International
Longshoremen's and Warehousemen's Union, Local No. 16, C.I.O. (Juneau Spruce
Corp.), 90 NLRB 1753; United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada, A. F. of L.
etc. (Carrier Corporation), 112 NLRB 1385. As the Board said in the Denver case,
such requests are "attempts to persuade," and "not proscribed by Section 8(b)(2)"
of the Act. It must therefore be held that the instant requests were not unlawful.
Finally, the Company could legally heed such requests. There is nothing in-
trinsically improper about the hiring standard suggested by Shusta. The selection
of employees on the basis of present or prior employment is not unlawful. For an
employer to hire upon such a basis is not illegal, and it cannot be made so merely
because a union suggests the standard. If this were not so, we would have the
anomalous siutation wherein a lawful request by a union for the establishment of a
hiring standard which an employer may properly establish in the absence of union
suggestion, by some curious metamorphosis becomes illegal if acted upon by the
employer, merely because the Union proposed it. I do not accept that conclusion.
The combination of two lawful courses of action does not-under this statute-
make illegal what is individually valid. The Company was therefore not guilty of
unfair labor practices in failing to hire Knapik and Lemay because the Union had
requested it to give preference in hiring to unemployed carpenters.
The sentence in the Supreme Court's decision in the Radio Officers' case (Id.,
p. 52) to the effect that encouragement of union membership is a natural and
probable consequence of employer discrimination at the request of a union, does
not require a different result. That statement is to be read in the light of the factual
context of unlawful action there presented, involving considerations relating to
union membership obligations. It is inapplicable to the totally different context
here. The Board appears to have reached the same conclusion. Its decision in the
Carrier case, reaffirming its position that a mere union request for discrimination is
not violative of Section 8(b)(2), was issued more than a year after the Supreme
Court's opinion in Radio Officers'.
These findings dispose of all the contentions needed to be decided. It is concluded
that the allegations of the complaints are not supported by the preponderance of the
evidence. It will therefore be recommended that the complaints be dismissed in their
entirety.
THE USADEL TROPHY MANUFACTURERS, INC. 1347
CONCLUSIONS OF LAW
1. Brunswick Corporation is engaged in commerce within the meaning of the Act.
2. Local 107, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, is a labor organization within the meaning of the Act.
3. The Respondents have not committed unfair labor practices within the meaning
of the Act.
[Recommendations omitted from publication.]
The Usadel Trophy Manufacturers , Inc. and Jewelry Workers
International Union Local 23; and Metal Polishers, Buffers,
Platers and Helpers International Union Local No. 67, AFL-
CIO. Case No. 21-CA-4109. June 28, 1961
DECISION AND ORDER
On January 3, 1961, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
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 no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Usadel Trophy Manufac-
turers, Inc., Inglewood, California, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing, if requested to do so by Jewelry Workers Interna-
tional Union Local 23, and Metal Polishers, Buffers, Platers and
Helpers International Union Local No. 67, AFL-CIO, to reduce to
writing and to sign the agreement reached with the above-named
Unions on June 3, 1960, including a provision for maintenance-of-
membership, a clause permitting reopening for negotiations on union
security at the expiration of 120 days, and to be effective for 1 year
IPursuant 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 McCulloch and
Members Rodgers and Leedom].
131 NLRB No. 163.