H. E. Fletcher Co.

National Labor Relations Board - Board Decisions

Nov 20, 1961

134 N.L.R.B. 494 (N.L.R.B. 1961)

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. The-employees involved in the complaint were in bad standing for noncom-
pliance with the lawful union -security provision of the contract.
10. The so-called hot cargo clause in the May 20, 1960 , memorandum of agree-
ment does not affect the validity of the balance of the contract . Section 8 (e) merely
directs that the contract "shall be to such extent unenforceable and void." The bal-
ance of the contract, including the union-security clause , is not affected. See
N.L.R.B . v. Rockaway News Supply Company, Inc., 345 U .S. 71, where the Supreme
Court held that the Board , in an unfair labor practice case , had no sanction in law to
disregard a separability clause in a contract.
In Rockaway News, the Supreme Court ruled that the fact that a contract con-
tained an invalid union-security clause, did not authorize the Board to disregard the
contract entirely in determining the propriety of a discharge of an employee there-
under , when the agreement contained a separability clause. The employee was dis-
charged for breaching the clause in the contract that employees shall not refuse to
cross a picket line of another union . The Supreme Court stated ( 345 U .S. at 79):
The total obliteration of this contract is not in obedience to any command of the
statute . It is contrary to commonlaw contract doctrine . It rests upon no de-
cision of this or any other controlling judicial authority . We see no sound
public policy served by it. Realistically , if the formal contract be stricken, the
enterprise must go on-labor continues to do its work and is worthy of some
hire . The relationship must be governed by some contractual terms. There is
no reason apparent why terms should be implied by some outside authority to
to take the place of legal terms collectively bargained . The employment con-
tract should not be taken out of the hands of the parties themselves merely be-
cause they have misunderstood the legal limits of their bargain , where the
excess may be served and separately condemned as it can here.
In the instant case not only does the contract contain a separability clause (article
25) but Section 8 ( e) of the Act provides for a separability clause of its own. The
hot cargo clause does not affect the validity of the union -security clause.
CONCLUSIONS OF LAW
1. The Respondent Employer , American Feed Company, is and has been at all
times material herein an employer engaged in commq ,ce within the meaning of
Section 2 (2), (6), ,and (7) of the Act.
2. The Respondent Union , Merchandising and Distribution Employees Union
Local 210, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Ind., is and ' has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
3. The employees named in the complaint and alleged to be or to have been
illegally discharged were properly and legally discharged pursuant to the lawful
union-security provision contained in both the 1959-60 and 1960-62 agreements.
4. The Respondent Employer has not engaged in and is not engaging in unfair
labor practices in violation of Section 8(a)(1), (2 ), and (3 ) of the Act, as alleged
in the complaint.
5. The Respondent Union has not engaged in and is not engaging in unfair labor
practices within the meaning of Section 8(b) (1) (A) and Section 8(b) (2) of the Act,
as alleged in the complaint.
6. The consolidated complaint herein should be dismissed in its entirety.
[Recommendations omitted from publication.]
H. E. Fletcher Co. and United Stone and Allied Product Work-
ers of America, AFL-CIO . Case No. 1-CA-3438. November 20,
1961
DECISION AND ORDER
On August 15, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
134 NLRB No. 48.
H. E. FLETCHER CO. " 495,
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the Intermediate Report-
attached hereto . Thereafter , the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
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 McCulloch and Members Rodgers and Fanning].
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 Interme-
diate Report , the exceptions and the brief , and the entire record in,
this case, and hereby dismisses the complaint in its entirety for the
following reasons.
The complaint alleged and the Trial Examiner found that Respond-
ent violated Section 8 (a) (3) of the Act by discriminatorily refusing-
to grant James Keenan a wage increase in January 1961. Record
evidence discloses that, on or about January 7, 1961, Keenan was
informed by his supervisor that he had recommended Keenan for a
"dime raise " and that several weeks might elapse before it was reflected
in Keenan's pay. When the raise was not forthcoming after the pas-
sage of a month , Keenan asked the foreman what had happened to
the raise and was told that it had been "turned down from up above."'
To support his finding that Respondent was discriminatorily moti-
vated in refusing to grant the increase , the Trial Examiner relied upon
the facts that Keenan had become president of a local of the Charging
Union in 1958; that charges had been filed against Respondent alleg-
ing that Keenan had been unlawfully demoted from his job as machine,
polisher, which charges were informally settled in 1959 pursuant to;
which Keenan was reinstated to this job ; that Keenan had been a,
"major witness" at a hearing in May 1960 in a case in which Respond-
ent had been found to have violated Section 8 ( a) (5) of the Act; that
approximately 125 employees had received wage increases during the,
period in which Keenan's raise had been withheld; and that Keenan
had not received a raise for 8 years. The Respondent contends, inter-
alia, that Keenan was not promoted in January 1961 because his job,
did not require the versatility which would warrant a higher wage,
rate than that already established for the position.
The record discloses that, in settling the charges filed in 1959 and;
reinstating Keenan to his job as machine polisher, Respondent did
not thereby admit that its action with respect to Keenan was unlawful.
Moreover, although Keenan testified in the unfair labor practice.
proceeding in 1960, there is no independent evidence that Respond-
ent's refusal to grant him a wage increase was impelled by the giving
of such testimony . Further, while 125 other employees did receive
wage increases during the times here material , there is nothing in_
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the record to suggest that the selection of these employees for wage
increases was designed to reward nonadherence to the Charging Union
,or to punish Keenan for his activities on its behalf. Rather, the rec-
ord indicates that these employees were selected to receive wage in-
creases based primarily upon job versatility factors. Finally, although
Keenan had not received a raise for 8 years preceding the hearing in
this case, Keenan had gone without a wage increase for 5 years during
this period, prior to the advent of the Union and Keenan's activities on
its behalf.
While the issue is not entirely free from doubt, we believe that the
facts adduced by the General Counsel and relied upon by the Trial
Examiner, viewed separately or considered as a whole, are insufficient
to warrant the finding that the General Counsel has sustained the
burden of proving by a preponderance of the evidence that Respond-
ent discriminatorily deprived Keenan of a wage increase. Accord-
ingly, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
CHAIRMAN MCCULLOCH dissenting :
I would adopt the Trial Examiner's findings.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge in the above -entitled case having been filed and served , a complaint and
notice of hearing thereon having been issued and served by the General Counsel
.of the National Labor Relations Board , and an answer having been filed by the
Respondent Employer, a hearing involving allegations of unfair labor practices
in violation of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as
amended , was held in Boston, Massachusetts , on July 20, 1961 , before the duly
designated Trial Examiner.
At the hearing all parties were represented by counsel and were afforded full
opportunity to present evidence pertinent to the issues, to argue orally , and to file
briefs. Briefs have been received from General Counsel and the Respondent.
Attached to his brief a motion for correction of the record in certain respects was
received from counsel for the Respondent. Following its receipt the same counsel
forwarded a letter from General Counsel , joining in certain proposed corrections,
stating that he had no recollection as to certain others, but in effect objecting to
No. 10 of the motion. Said motion is hereby granted , except as to No. 10, and is
hereby made a part of the record.
Disposition of the Respondent's motion to dismiss the complaint , upon which
ruling was reserved at the hearing , is made by the following findings, conclusions,
and recommendations.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
H. E. Fletcher Co. is a Massachusetts corporation having its principal office and
place of business at West Chelmsford; Massachusetts , where it is engaged in the
processing of granite.
During 1960 the Respondent sold and shipped granite and related products valued
at more than $50 ,000 to point outside the Commonwealth of Massachusetts.
The complaint alleges, the answer admits , and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
H. E. FLETCHER CO.
If. THE LABOR ORGANIZATION INVOLVED
497
United Stone and Allied Products Workers of America, AFL-CIO, is a Jabor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The sole question for resolution here is whether the evidence sustains General
Counsel's claim that employee James H. Keenan was unlawfully, to discourage
union membership and activity, denied a wage increase in January 1961. In its
answer the Respondent concedes the fact of the refusal but denies its unlawful nature.
B. The relevant facts
The following facts are undisputed:
(1) At the time of the hearing Keenan-had about 18 years of service seniority
with the Respondent and was one of the Respondent's most skilled employees as a
machine polisher.
(2) Since the summer of 1958 'Keenan has been the president of Local 168 of
the Charging Union, which he helped to organize and which thereafter was certified
by the Board as the collective-bargaining representative of employees in an appro-
priate unit.
(3) After several months of negotiations a strike occurred in which Keenan-
participated.
(4) Charges were filed in Case No. 1-CA-2723, et al., and in July 1959 -the
Respondent and the Regional Director for the First Region of the Board executed
a settlement agreement which, among other things, provided for an award of back-
pay to Keenan and reinstatement to his "former or substantially equivalent" position.
(5) Pursuant to the settlement agreement Keenan was reinstated to his job as
machine polisher (from which he had been demoted with pay cut) and the strike
ended.
(6) After the return to work Keenan continued to participate, as union president,
in contract negotiations with the Respondent.
(7) Out of such unsuccessful negotiations stemmed a charge, complaint, and
hearing in Case No. 1-CA-3134, and a Board decision concluding that the Respond-
ent had violated Section 8(a)(1) and (5) of the Act (131 NLRB 474). Keenan
was a major witness at this hearing, conducted in May 1960.
(8) On or about January 7, 1961, Keenan was informed by his foreman, Francis
Clark, that he had "put" him in for a "dime raise" but that it might be a couple of
weeks before it would appear in his pay envelope.
(9) About a month later Keenan asked Clark, in effect, why the raise had not
come through. Clark told him it had been "turned down from up above."
(10) At the time of the hearing in these proceedings it had been about 8 years
since Keenan had received an increase in pay.
(11) Company records in evidence show that during a period from Septem-
ber 1960 to March 1961 about 125 employees were granted wage increases ranging
from 5 cents to 30 cents an hour.
C. Conclusions
The Respondent claims that Keenan was refused an increase for two reasons:
(1) "the job Mr. Keenan was performing did not require more versatility than was
already covered by the evaluation which established the $2.00 wage rate which he
is now getting," and (2) "Mr. Keenan was required by the Settlement Agreement to
work on rubbing, honing and polishing, as long as the Company had any rubbing,
honing and polishing available for him to do. As a consequence, no other work
assignment was given, or was open to him." I
The Trial Examiner finds no merit in either or both of the reasons claimed by the
Respondent. The company records above referred to show clearly that many em-
ployees during the material period were granted even larger increases than Clark
recommended for Keenan and for many other reasons than "versatility" of the "Job "
Employees were granted increases for "improved work," "merit," and doing various
other jobs than called for in their classification, as did Keenan.
i Quotations are from the Respondent's brief
630849-62-vol. 134-33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The attempt by the Respondent to place the onus of its own failure to provide
Keenan with the "same or substantially equivalent " position in compliance with the
settlement agreement, above referred to, borders on the absurd . It is equivalent,
in the opinion of the Trial Examiner , to the resentful act of a child who, instructed
to "go straight home from school ," proceeds literally and lineally to wade through
puddles, flower gardens , and traffic. While it may well be true that there was less
work for him to do as a "machine polisher" after his reinstatement , no credible rea-
son was offered by the Respondent for not utilizing in other work the skilled services
of an employee with 18 years' experience.
In substantial respects the Respondent 's action in this case is similar to that de-
scribed in N.L.R.B. v. Walt Disney Productions, 146 F. 2d 44 (C.A. 9), where the
employer, following a similar settlement agreement , put its top animator in a separate
office with nothing to do.
The Trial Examiner is convinced and finds, in view of the facts and circumstances
herein described, that the claims of the Respondent are but mere pretexts , and that
the real reason Keenan was refused an increase was in retaliation for his union
leadership and activity. Such discrimination is clearly in violation of Section
8(a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section 1, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair labor
practices , the Trial Examiner will recommend that it cease and desist therefrom and
take affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent make whole employee James Keenan
for any loss of pay suffered by reason of the discrimination against him by payment
to him of a sum of money equal to that which he normally would have received
absent the discriminatory refusal to grant him the wage increase in January 1961.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Stone and Allied Products Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. By discriminatorily refusing employee James Keenan a raise in January 1961, to
discourage membership in and activity on behalf of the above-named labor organiza-
tion, and thereby interfering with, restraining, and coercing employees in the exercise
of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) and (3) of
the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Electrical Workers Local Union No. 73 and Northeastern
Washington -Northern Idaho Building and Construction
Trades Council and Northwestern Construction of Wash-
ington , Inc. Cases Nos. 19-CC-137 and 19-CC-138. Novem-
ber 20, 1961
DECISION AND ORDER
On September 6,1960, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
134 NLRB No. 46.