International Brotherhood of Teamsters

National Labor Relations Board - Board Decisions

Aug 29, 1958

121 N.L.R.B. 713 (N.L.R.B. 1958)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS 713
was to force or require their employer to cease doing business with Graham Paper
Company, Local 600 has engaged and is engaging in unfair labor practices within
the meaning of Section 8 (b) (4) (A) of the Act
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication ]
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Local Union No.131 [Lum-
ber Yard Supply Company] and Lloyd E. Ferguson. Case No.
30-CB--82 August 29,1958
DECISION AND ORDER
On March 7, 1958, Trial Examiner Herman Marx issued his Inter-
mediate Report in this proceeding, finding that the Respondent had
engaged 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 There-
after, the General Counsel and the Respondent filed exceptions to
the Intermediate Report and supporting briefs
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 Leedom and Members Bean and Fanning]
The Board 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 The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner 2
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 Respondent, International
1 The Board having been notified by the AFL-CIO that it deems the Teamsters' cer-
tificate of affiliation revoked by convention action, the identification of this Union is
hereby amended
2 The Respondent excepted only to the scope of the remedial order recommended by the
Trial Examinei , contending that the unfair labor practices found did not warrant a broad
cease and-desist order For the reasons indicated by the Trial Examiner, we find no
merit -in the Respondent 's exceptions See Local 791, Internatsonal Longshoremen's Assa-
ciatson, Independent ( T Hogan iE Sons, Incorporated ), 116 NLRB 1652
As no exceptions were filed to the Trial Examiner's substantive findings and conclu-
sions, we adopt them pro forma This being so, in agreement with the Trial Examiner,
we need not and do not pass on whether the Respondent 's conduct constituted unfair
labor practices , in addition to the grounds relied on by the Trial Examiner , on the basis
of the Alumsnum Workers International Uisson, etc case, 112 NLRB 619, as the General
Counsel's exceptions urge us to do
121 NLRB No 91
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 13, its officers, representatives, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Causing, or attempting to cause, Lumber Yard Supply Com-
pany, or any other employer, to discharge employees or in any other
manner discriminate against them, except as authorized by Section
8 (a) (3) of the Act.
(b) In any other manner, restraining or coercing employees of
Lumber Yard Supply Company, or any other employer, in the ex-
'ercise of the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their
,own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to refrain
from any or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make whole Ronald Kienow and Lloyd E. Ferguson in the
manner, according to the method, and to the extent set forth in the
section of the Intermediate Report entitled "The Remedy."
(b) Notify Lumber Yard Supply Company and Lloyd E. Fergu-
son, in writing, that it has no objection to the employment of Lloyd
E. Ferguson by the said Lumber Yard Supply Company.
(c) Post in conspicuous places, including places where notices to
members are customarily posted, at its office and usual membership
meeting place, copies of the notice attached hereto marked "Appendix
A." 9 Copies of said notice, to be furnished by the Regional Director
for the Seventeenth Region of the Board, shall', after being duly
signed by a duly authorized representative of the said Union, be
posted by it immediately upon receipt thereof and maintained by it
for a period of sixty (60) consecutive days thereafter. Reasonable
steps shall be taken by it to insure that the said notices are not altered,
defaced, or covered by any other material.
(d) Forthwith mail copies of the said notice marked "Appendix A"
to the said Regional Director, after such copies have been signed, as
provided above, for posting at the place of business of the said Lum-
ber Yard Supply Company, if it so agrees.
(e) Notify the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
APPENDIX A
715
NOTICE TO MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
LOCAL UNION No. 13, AND TO EMPLOYEES OF LUMBER YARD SUPPLY
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, we hereby give notice that :
WE WILL NOT cause, or attempt to cause, Lumber Yard Supply
Company, or any other employer, to discharge employees or in
any other manner discriminate against them, except as authorized
by Section 8 (a) (3) of the National Labor Relations Act.
WE WILL NOT in any other manner restrain or coerce employees
of Lumber Yard Supply Company, or of any other employer, in
the exercise of the right to self-organization, to form, join, or
assist labor organizations, to bargain 'collectively through rep-
resentatives of their own choosing, to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid
or protection, and to refrain from any or all of such activities,
-except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the National
Labor Relations Act.
WE WILL make Ronald Kienow and Lloyd E. Ferguson whole
for any loss of pay suffered as a result of the discrimination
against them.
WE HAVE NO objection to the employment of Lloyd E. Ferguson
by Lumber Yard Supply Company.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELP-
ERS OF AMERICA, LOCAL UNION No. 13,
Labor Organization.
Dated---------------- By--------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On March 22, 1957, Lloyd E. Ferguson filed a charge with the National Labor
Relations Board (also designated below as the Board) against International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
Union No. 13, AFL-CIO (also referred to herein as the Union or Local 13). Based
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon the charge, and amendments thereof,' the General Counsel of the Board issued
a complaint on September 17, 1957, alleging that Local 13 had engaged in and was
engaging in unfair labor practices within the meaning of the National Labor Rela-
tions Act, as amended (61 Stat. 136-163), also referred to below as the Act. The
Union has been duly served with copies of the charge, the amendments thereof, and
the complaint.
With respect to the claimed unfair labor practices, the complaint alleges, in
substance, that on or about March 18, 1957, Local 13 "attempted to cause and
caused" a firm named Lumber Yard Supply Company to discriminate, in violation
of Section 8 (a) (3) of the Act, against two of the firm's employees, Ronald Kienow
and Lloyd E. Ferguson; and that by its conduct in the premises, the Union violated'
Section 8 (b) (2) and (b) (1) (A) of the Act. Local 13 has filed an answer
which, in sum, denies the commission of the unfair labor practices alleged in the
complaint.
Pursuant to notice duly served upon all parties, a hearing upon the issues in this
proceeding was held before me, as duly designated Trial Examiner, on October 16,
and 17, 1957, at Denver, Colorado. The General Counsel and Local 13 appeared,
were represented by counsel, and participated in the hearing, and all parties were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
adduce evidence, to file briefs, and to submit oral argument. I reserved decision
on a motion to dismiss the complaint, made by the Union after the close of the
evidence. The findings of fact and conclusions of law set forth below dispose of
the motion. The General Counsel and the Union filed briefs with me subsequent
to the close of the hearing. I have read and considered the briefs.
Upon the entire record, and from my observation of the witnesses, I make the
following findings of fact:
FINDINGS OF FACT
1. NATURE OF THE BUSINESS OF LUMBER YARD SUPPLY COMPANY; JURISDICTION OF
THE BOARD
Lumber Yard Supply Company (also referred to below as the Company) is a
partnership engaged in the sale and distribution of building materials at wholesale.
Its principal place of business is in Denver, Colorado.
During the year 1956, in the course and conduct of its business, the Company
shipped directly from its said place of business to points located in other States
products and supplies valued, in the aggregate, at the sum of $440,728.33. As a
result of such shipments, the Company has been, at all times material to the issues
in this proceeding, engaged in interstate commerce within the meaning of the Act.
Accordingly, the Board has jurisdiction over the subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local 13 is a labor organization within the meaning of the Act, and admits persons
employed by the Company to membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory findings
Under requirements maintained by Local 13, an applicant for membership in
the organization must pay it an initiation fee of $30, and each member is required
to pay dues of $4 per month in advance on the first day of each month. In practice,
the Union does not require its members to follow a uniform method of making
their dues payments. Members often send their dues remittances by mail to the
Union's office in Denver; others make payments in person to a clerk at a window
maintained for that purpose at the office; and from time to time members pay their
dues at their respective places of employment to the Union's business agents. As
Francis Salter, the Union's president, testified, all of the organization's business
agents "are permitted to pick up dues." Members may, and often do, make their
payments by personal check.
In 1956, the Company and Local 13 entered into a collective-bargaining agree-
ment prescribing terms and conditions of employment for various classifications of
the Company's employees, including warehousemen. Among other things, 'the
contract provided that it was to "be effective from June 1, 1956, and . . . remain
1 The first amendment was filed on March 25, 1957; a. second on May 20, 1957; and a
third on August 26, 1957.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 717
in full force and effect until June 1, 1957 "; 2 and that the Company "recognizes the
Union as the sole collective bargaining agency for employees" in the applicable
classifications . The only other provisions of the agreement which need be noted
here related to union security. These provided: "All present employees who are
now members , and those employees who may become members of the Union,
shall be and remain members of the Union on or after the 30th day following the
signing of the Agreement. All new employees of the Employer shall become
members of the Union within thirty (30) days aftertheir first employment by
the Employer , and maintain their membership in the Union in good standing during
the life of this Agreement." ' The authority of the Union to enter into the contract
on behalf of the employees in the bargaining unit affected is not in issue in this
proceeding, and the General Counsel 's brief concedes the validity of the union-
security provisions.
Ronald Kienow has been employed by the Company as a warehouseman since
November 28, 1956. On January 21, 1957, a business agent of Local 13 named
Jack Wherry sought out Kienow at the Company's premises for the purpose of
discussing Kienow's "eligibility for membership in our Local" (as Wherry put it in
his testimony). The upshot of the discussion was that Kienow signed an applica-
tion for membership in Local 13, turning it over to Wherry, and gave the business
agent $4 in cash, as an advance payment of dues for February 1957, and a.check
in the sum of $15, drawn by Kienow to the Union's order, as part payment of
the initiation fee required by the organization. As Kienow testified, Wherry told
him that he could pay the balance of the initiation fee when he had the money to
do S0.3 The application signed by Kienow is on a printed form customarily used
by the Union in securing applications. The printed matter, to which Kienow sub-
scribed his name , includes the following: "I agree to appear for initiation at the
first meeting following payment in full of the initiation fee. Upon failure to comply
with this rule this application and payments thereon shall be forfeited. Initiation
fees must be paid in full within 30 days."
Lloyd E. Ferguson entered the Company's employ as a warehouseman on
January 1, 1956. His employment terminated on March 18, 1957, under circum-
stances to be described later. While on the Company's payroll, he attended the
University of Denver, and for that reason, apparently, he worked on a part-time
basis, customarily reporting for work at about 12:30 p. m. and quitting, at 5 p. in.
He became a member of Local 13 on December 3, 1956, on that date paying the
organization a month's dues and the required initiation fee of $30.
On Wednesday, March 13, 1957, Ferguson filed with the Board's Denver office a
petition seeking decertification of Local 13 as the collective-bargaining representative
of employees of the Company. Ferguson had prepared material for the petition,
had had it typed, had circulated it among employees of the Company, and had
executed it. His was the only signature on the petition.
On the date the petition was filed (but whether before or after its filing does'not
appear), Wherry, who has the duty, among others, "to see that the dues are paid,"
called at the Company's plant and talked to a number of employees, including
Kienow and Ferguson , concerning their dues arrearages. Kienow had not as yet
paid the balance of his initiation fee, and owed dues for the month of March;
Ferguson was in arrears for 2 months; and 3 others (Prevost, Malmgren and
O'Quinn) to whom Wherry talked had not paid their March dues. Speaking to
Kienow first, Wherry told the employee that he had been "dropped" (as a member,
presumably), and that he would have "to pay an initiation fee and reinstate his
membership." Kienow stated that he would do so, but that he did not "have the
money with him." Wherry informed Kienow , in substance , that if the latter did
2 The evidence does not establish the precise date of execution of the agreement , but the
omission does not affect the issues . Also, provisions in the contract relating to its auto-
matic renewal and to procedure for its termination have no impact on the issues , and thus
need not be described.
3 According to Wherry at one point, he told Kienow that the latter would be required
"to complete his application within 30 days or he would be forfeited of any amount that
he had paid if he wouldn 't complete it." Whether Wherry made such a statement does
not, in my judgment , materially affect the issues, but putting that aside, I make no finding
that he did so because there are indications in Wherry 's testimony preceding the quoted
statement that he actually has no independent recollection that he made such a statement
to Kienow. Moreover, after quoting his alleged statement to Kienow, Wherry testified :
"In other words, I told him that his application would be $30." The "other words" are
substantially different in meaning from those in which Wherry depicts himself as expressly
cautioning Kienow against forfeiture of his part payment
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not make the required payments by March 15 , he would ask the Company to dis-
charge Kienow on that date . Wherry next talked to O'Quinn , and that employee-
stated that he would mail his dues to the Union by March 15. Then, Wherry spoke-
to Ferguson and Prevost together , telling them in substance that they would be-
required "to be straightened up by the 15th (of March ) just like everyone else."
Ferguson asked Wherry if the latter had a "blank check ," and the business agent-
replied that he had none. Then Ferguson inquired whether it would be "all right"
if he sent his "dues in Friday night" ( or, in other words on the night of March 15).
Wherry replied in the affirmative . Prevost paid Wherry a month's dues .4 What
passed between Wherry and Malmgren on March 13 does not appear , but it is-
undisputed , as Wherry testified , that Malmgren paid Wherry what he owed on
March 15.
A copy of the decertification petition was served on the Union on March 14.
Wherry returned to the Company 's plant on the afternoon of that date , and at the-
time he did so , as he conceded in his testimony , he was aware that Ferguson had
signed the petition . Wherry asked Ferguson the reason for dissatisfaction with the
Union , and Ferguson replied that "we were dissatisfied with the way the Union
handled our contract ." The business agent , in substance , also alluded to the fact
that Ferguson was planning to leave the Company 's employ in about 3 months, but
was nevertheless sponsoring the decertification petition .5 At one point or another-
during the course of the conversation Ferguson stated that he would pay his dues at.
"the Union Hall on Friday evening." 6
While Wherry was at the plant on the afternoon of March 14 , Kienow made an_
offer to the business agent to pay by check what he owed for initiation fees and dues.
Wherry replied that the matter "was out of his hands now" and that Kienow would
"have to go down to the Union Hall to get straightened out." Wherry suggested
that Kienow go to the Union 's headquarters that evening , and Kienow said that he-
would try to do so?
4 Prevost testified that he made the payment on March 14 . I think it likely that the
payment was made on March 13, for that is the date set forth in the Union 's records and
on the duplicate of the receipt issued to Prevost. In passing, It may be noted that
Wherry's testimony relating to conversations with Kienow and Ferguson on March 13 is
undisputed . Neither Kienow - nor Ferguson refers to a conversation with the business
agent on that date.
G Ferguson had been offered a position with another employer in anticipation of his
graduation from the University of Denver in June 1957 ; and had made plans to take the-
position upon his graduation.
'Ferguson 's version of the conversation differs in a number of respects from that of
Wherry. I have based findings on Ferguson 's account because he impressed me as the-
more credible of the two witnesses . According to Wherry 's testimony , he spoke to -
Ferguson and Prevost at the same time, asking them for the reason for dissatisfaction
with the Union,-and Ferguson expressed disapproval of unions and of Local 13. In much
of the rest of his version, Wherry pictures himself as defending the collective -bargaining
agreement in response to a statement by Prevost that he "wasn 't happy with the contract."
Wherry also describes Prevost as being "as happy as could be " after "I got through talk-
ing to him ." According to Wherry , Ferguson "didn't think that the increase was enough,"
and the business agent claims that he told Ferguson that he "was going into the office
and talk with Mr. Fisk ( a partner in the Company ) relative to discharge under the Union
agreement." Ferguson in effect denied that there was "any conversation about (his)
employment at the company ." Fisk's testimony ( which will be described in greater detail
later ) contributes some support to Ferguson 's denial, for , according to Fisk, when Wherry
came to see him concerning Ferguson and Kienow on March 14 , the business agent said
nothing "about discharging anybody." In any event , the areas of difference between.
Ferguson and Wherry concerning the discussion on March 14 actually have no significant
impact on the issues . The important points to bear in mind are that Wherry admittedly
knew, at the time of his visit to the plant on March 14, that Ferguson had executed the
decertification petition , and that it is substantially undisputed ( as is evident from the
testimony of both Wherry and Ferguson ) that the business agent in effect inquued as to
the reason for dissatisfaction with the Union , and that Ferguson expressed dissatisfaction
in reply.
7 The Union 's office usually closes at 5 p. m. Kienow testified that he went there after
his quitting time ( 4: 30 p in ) on March 14; that he arrived at the building where the
office is located about "seven minutes to five, somewhere in there ," according to a clock
inside the building above the street entrance ; that he looked through the open door of
the office and saw no one there ; and that he thereupon left . The Respondent produced
evidence to the effect that there has never been a clock in the area of the building described
by Kienow . Presumably, this evidence was offered to impeach Kienow and to negate his
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 719
That same afternoon , Wherry called on Charles Fisk , a partner in the Company,
and told Fisk , as the latter testified in substance , that Kienow and Ferguson were
in arrears in their dues , and that they were to work through the following day and
then see Salter "at the Union to get straightened out on their delinquent dues." s.
On the following day, March 15, shortly before quitting time , Fisk , as requested
by Wherry , told Kienow and Ferguson that they would have to go to the Union's
office and see Salter "to get their dues straightened up." Ferguson thereupon tele-
phoned Wherry , who was at the Union 's office , and asked if it would be agreeable.
to the Union if he sent the amount of his dues arrearage to the Union withlKienow.
Wherry replied that it would be necessary for Ferguson to come to the Union's
headquarters and talk to Salter , and that Salter was not there at that time . Kienow,
left for the Union 's office soon after Fisk spoke to him , and arrived at the organi-
zation 's headquarters shortly before 5 p .m. Upon his arrival , he met Salter as
the latter was leaving the office , and told Salter that he was there to "straighten
out my initiation fees and my dues." Salter said that he had no time to "mess"
with Kienow , and that the latter would "have to come back again." 9
Kienow telephoned the Union 's office at about 8 a. in. on Monday , March 18,.
shortly after he arrived for work . A woman (presumably , an employee of, the
Union ) answered the telephone , and Kienow identified himself and his place
of employment , and told her that he wished ' to pay his" dues. She replied that
neither Wherry nor Salter was then in the office , and Kienow requested that
Wherry call him. Wherry did so later that morning , about 9 : 30 a. in ., and told
Kienow that "it would be all right to come down to the Union Hall right away-
and get it straightened up, that it was out of his hands," and that when Kienow
came to the Union's office he "would have to see" Salter . Kienow shortly there-
after "punched out and went straight down to the Union Hall," first informing-
Fisk of his errand.
After Kienow left, Fisk received a telephone call from Wherry who asked Fisk
why,Kienow was working that day. Fisk replied , in substance , that he had per-
mitted Kienow to work , pending the making of arrangements by the employee to
see Salter . Wherry stated that neither Kienow nor Ferguson was "supposed to be
there working unless he had a back-to-work order from the Union ." Fisk then
asked Wherry whether it would be lawful for the Company to deny employment
to Kienow and Ferguson because they did not have such an order. Wherry replied
that such conduct by the Company would be "all right," but suggested that Fisk
talk to Salter about' the matter and then connected Fisk with Salter. Fisk "asked
the same question" of Salter as he had put to. Wherry . Salter stated "that it was
legal" for the Company to deny employment to Kienow and Ferguson unless they
had "a back-to-work order " from the Union , and that "they were not to come
back to work" unless they had such an order.lo
claim that he visited the Union 's office on March 14. However , upon my observation of
Kienow, I am not prepared to conclude that the claim is based upon ,a fabrication. Con-
ceivably , he came to the office shortly before it closed , and looked in at a moment when
no clerk was in sight, and is mistaken in his description ( some 7 months later) of the
location of the clock . Be that as it may, the evidence of Kienow 's visit-to the office on
March 14 has no material effect upon the issues.
8 Wherry claims that on this occasion he asked Fisk to discharge the two employees.
Fisk denies that Wherry made such a request. Corroborative weight is given to Fisk's.
version of the conversation ( which I credit ) by Salter 's admission that the dues record _
of each of the two employees maintained at the Union 's office bore a notation that he .
should "see" Salter upon his arrival at the office . What is more, as will appear, Wherry-
told Ferguson on March 15 that the latter would "have to talk" to Salter , and made a
similar statement to Kienow on March 18.
g Findings concerning the conversation between Kienow and Salter are based on.
Kienow's testimony , notwithstanding Salter's denial that he either saw or spoke to Kienow
on March 15. Kienow appeared to me to be a more credible witness than Salter. That -
impression is based not only upon my appraisal of both witnesses but upon my evaluation .
of conflicting testimony given by Kienow and Salter relating to a conversation they had-
on March 18. That conversation will be described later and , as will appear , Salter's
version is not entitled to credence.
io Salter claims that he called Fisk on the telephone on Friday , March 15, and spoke to
Fisk "along the line of making sure that Mr. Fisk understood our Union was requesting
the discharge of Mr. Kienow and Mr. Ferguson for failure to maintain good standing in
the Union " Fisk denied that he received such a call from Salter , and asserted in effect
that the only telephone conversation he had with Salter was the one on March 18, de-
scribed above . It may be noted that Salter testified that he has "no recollection of talking _
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kienow and Salter had a conversation when the former came to the Union's
office on the morning of March 18 . Their respective versions of what was said
are in marked conflict.
According to Kienow's testimony, the following took place: He told Salter that
he was there to pay his dues and initiation fee, and inquired "if it was all right to get
it straightened out." Salter replied, "You waited around a little bit too long, Buster.
Now you will have to pay them all over to get back in." Salter also stated that the
Union "didn't have any kids and . . . didn't have too much time to mess around with
them," and that Kienow "evidently didn't know too much about the Union."
Kienow replied that "I hadn't been in it [the Union] too long but what I had seen of
it, it didn't look too prosperous because all we ever seen them down there was when
they came down to collect dues." Salter remarked that "you had to be a man to
belong to the Union," that Kienow "was just a punk," and that he "didn't care"
whether Kienow "joined up again or not." Kienow then stated that "if that's the
way it had to be," he would pay the required initiation fee of $30 and a month's dues,
and inquired if Salter would accept $20 in cash and his personal check for $14.
Salter replied that he "didn't want anything to do with a check," and that Kienow
would be required to pay the $34 in cash "if he wanted back in bad enough."
Kienow repeated his offer, and Salter replied: "You didn't hear me say check,
Buddy, I said cash." At that Kienow left the office, went to the bank where he main-
tains his account, and there purchased a cashier's check. He then returned to the
Union's office and offered the check to a woman clerk employed there. ' She stated
that she would have to secure Salter's approval before she could accept the check.
She then called Salter from his office and asked him whether the check would be
acceptable. Salter remarked, "Is that smart little bastard back here again? We'll
take the check this time." The clerk then accepted the check; Kienow asked her for
a "back-to-work order"; and she gave him the order, as well as a "union book."
Salter's version of the conversation is much less detailed than Kienow's. Terming
Kienow "a very . . . gentlemanly type," Salter testified that Kienow "wanted to dis-
cuss matters relating to the Union, offered to pay his dues and initiation fees, said he
did not have the money with him . . . would go get it and return"; and that he
(Salter) replied that "that was fine, that that was what we were asking and what he
really ought to do under the circumstances." According to Salter, Kienow then
"left to get the money, and returned with a certified check."
A number of factors militate against acceptance of Salter's version. In the first
place, Salter implied at more than one point that Kienow acted upon his own initia-
tive in calling on him, although the fact is that Kienow came to see Salter because he
was required to do so by Wherry, Salter's subordinate." Salter's intimations to the
effect that there was no such requirement reflect on the credibility of his testimony.
Secondly, I think it unlikely, in the light of the evidence as a whole, particularly in
view of some testimony by Wherry, that the conversation between Kienow and Salter
was as amiable as Salter's testimony would lead one to believe. Wherry admittedly
was aware when he spoke to Kienow on March 13 that a decertification petition had
circulated or was circulating among the employees (although there is no evidence that
he knew at that time that Ferguson was the one who had executed the petition).
The business agent testified that when he told Kienow that he would seek the latter's
discharge on March 15 unless the latter paid what he owed, Kienow "more or less
took a smart attitude," that is, as Wherry explained it, the discharge threat "didn't
to Mr Fisk on Monday" (March 18), and I gathered the impression that he was not
certain whether he spoke to Fisk on that day or not Be that as it may, the Company is
not a party to this proceeding, and Fisk impressed me as a disinterested and credible
witness. Accordingly, I have based findings regarding a telephone conversation between
Fisk and Salter on the former's testimony.
11 Salter pictures Kienow as stating he "wanted to discuss matters relating to the
Union" ; and under cross-examination, in reply to a question whether Kienow and
Ferguson were required to come to the Union's office to talk to him, Salter testified,
"They were asked to come in and pay their dues and initiation fees." At a later point
in his cross-examination Salter stated : "I believe that mention was made to both of these
gentlemen (Kienow and Ferguson) that the officers of the Union would like to talk to
them." This has an evasive note and adds to my belief that Salter's testimony with re-
spect to a number of matters is not reliable. It is clear that Wherry did not merely
"mention . . . that the officers of the Union would like to talk" to Kienow and Ferguson,
but told both employees that they "would have" to talk to Salter at the Union's head-
quarters, and made a statement to that effect to Fisk on March 14.
INTERNATIONAL BROTHERHOOD OF. TEAMSTERS 721
seem to make too much difference" to Kienow who "just seemed to have an indif-
ferent attitude towards the Teamsters Union and towards myself." It is evident
from Wherry's testimony that he associated Kienow's "attitude" with the circulation
of the decertification petition,12 and that is the reason, I am convinced, why Wherry
subsequently took the position that Kienow's status "was out of his hands," and that
Kienow would have to talk to Salter at the Union's office "and get it straightened up."
Against the background of the evidence of Wherry's dissatisfaction with Kienow's
"attitude," I find plausible Kienow's testimony depicting Salter as lecturing him on
such matters as the need "to be a man to belong to the Union," as referring to Kienow
as a "punk ," and as disclaiming any interest in whether Kienow "joined up again or
not." Finally Kienow's account plausibly explains why he made payment by
cashier's check (or certified check, as Salter would have it), and Salter's version does
not. It is undisputed that Kienow had a checking account at the time he talked to
Salter. Indeed, he had previously given the Union his personal check for $15, as
part payment of the initiation fee, and $4 in cash for a month's dues, when he signed
the membership application . Bearing that in mind, as well as the fact that payment
of dues to the Union by personal check is a common practice among its members,
Kienow would have good reason to believe that his check would be acceptable as
-part payment, at least, of what the Union claimed he owed, and it is entirely plausible
that he should offer to make such part payment by check, as he had done previously.
Yet, as Salter would have it, Kienow made no such offer, and the implication of
Salter's testimony is that he had no responsibility for the fact that Kienow was put to
the burden of journeying to and from his bank. I do not believe Salter's denial
that Kienow offered to make a payment by personal check; on the contrary, I am
convinced that Kienow made such an offer, as he testified, and that Salter's rejection
of the offer was responsible for Kienow's trip to his bank to procure a cashier's check.
I am persuaded, in sum, that Kienow's account describes substantially what was said
and done while he was at the Union's office on March 18.
Upon completion of the transaction at the Union's office, Kienow returned to his
work, punching his timecard upon his arrival at the Company's plant. He lost
approximately 2 hours of pay for time spent away from his work in connection with
his visit to the Union's headquarters that day.
Ferguson, who, as previously stated, customarily reported for work about 12:30
p. in., went to the Union's office at approximately 10:30 a. in. on March 18 and
told the clerk at the dues window that he was there to pay his dues. She consulted'
his record, "read something from it," and said that Ferguson would "have to, talk
to Bud Salter first." (Quite likely, from the sense of the evidence, what she read
was a notation to the effect that Ferguson was to be referred to Salter. Salter gave
testimony to the effect that Ferguson's dues card at the office contained such a
notation.) Salter was not in at the time, and after waiting for awhile, Ferguson left
the office.is He returned about 2 : 30 p. m . Salter was then in his office, and he
received Ferguson there. Salter asked Ferguson what his "gripe was," and Ferguson
replied that he had none, but that the Company's employees did not want the Union
to represent them after June 1, 1957. Salter then said that Ferguson "was young"
and would "be-working a long time." After some additional discussion (apparently
mainly centering about increases for the Company's employees resulting from the
contract negotiated by the Union) Ferguson inquired whether he was "out of the
Union," and Salter replied, "That's it." The conversation appears to have ended
-2 Wherry testified that "I knew [on March 13] that there was something in the plant
that had these boys disturbed ," and, although he added at that point, "I didn't know
what it was," he subsequently conceded that his comment about "something in the plant
that had these boys disturbed" had reference to the decertification petition.
'- In its brief , noting Kienow 's testimony that he spoke to Salter at about 10 : 45 that
morning, the Union describes as "palpably false" Ferguson 's testimony that he offered
to pay his dues to a clerk at about 10: 30 a. in. and was told that he would have to talk
to Salter and that the latter was not in. I think it clear, however, that Kienow's relevant
testimony is not inconsistent with that of Ferguson . Each stated the time of his visit at
the office in approximate terms ; the record does not indicate how long Ferguson waited
for Salter ; and it is not improbable that Ferguson left before Kienow and Salter arrived.
Moreover , it is well to bear in mind that the Union offered no evidence from any of the
-three clerks it #employs to controvert Ferguson 's description of his experiences at the
Union 's office of the morning of March 18.
487926---59-vol . 121-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at about that point, and Ferguson left for the Company's plant, arriving there at
about 4 p. m.14
Ferguson 's purpose in going to the plant was to ask Fisk "what position I was in
and whether there was anything we could do about it" or, in other words, as Ferguson
also explained his errand, to find out if he "could work." He spoke to Fisk after
his arrival, and the latter told him, in substance, that the Company could not retain
him as an employee unless he secured a "work order" from Local 13.15 Ferguson
then left the plant for his home, and did not at any time thereafter return to work for
the Company.
B. Concluding findings
Although Fisk did not tell Ferguson in so many words that the latter was dis-
charged, there is no doubt that Fisk terminated Ferguson's employment on March 18.
Any claim to the contrary ignores the real meaning of Fisk's statement on that date
to the effect that Ferguson could not continue to work for the Company without a
"work order" from the Union: Clearly, this statement had the effect of discharging
Ferguson, since he did not have a "work order" and obviously could not secure one
in view of Salter's position that he was no longer a member of the Union.16 There
can also be no doubt that the Union caused the discharge. One need only note in
that connection Wherry's telephoned admonition to Fisk on the morning of March 18
that neither Kienow nor Ferguson was "supposed to 'be there working unless he
had a back-to-work order from the Union"; and Salter's assertion to Fisk on the
same occasion that the two employees "were not to come back to work unless
he [Salter] gave them a back-to-work order."
The Union maintains, in substance, that the motivation for its conduct in procur-
ing Ferguson's discharge was the fact that he was delinquent in the payment of his
dues, and that it had a right to require his dismissal under the union-security provi-
sions of its contract with the Company. The General Counsel takes a different
view of the Union's motive, asserting that the organization brought about the
discharge because Ferguson was the sponsor of the decertification petition. Under
well-settled doctrine, if the Union was motivated by any reason other than Ferguson's
failure (as Section 8 (b) (2) of the Act puts it) "to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or retaining member-
ship," the union-security provisions afford Local 13 no immunity, and its conduct
in procuring Ferguson's dismissal was unlawful.17
" Findings regarding the conversation between Ferguson and Salter are based, in the
main , on Ferguson's testimony Salter does not quote himself as asking what Ferguson's
"gripe was" but as opening the conversation with an inquiry as to Ferguson's "reason for
refusal to maintain his membership in the Union and pay his dues." However, it is clear
from Wherry's description of his conversation with Ferguson on March 14, not to speak
of Ferguson's version of that discussion, that the Union was concerned about the de-
certification petition and that that led to Wherry's inquiry of Ferguson as to the reason
for dissatisfaction with the Union. Bearing that in mind, as well as Wherry's rejection
of Ferguson's offer (on March 15) to send his dues to the union hall with Kienow, and
the action of the clerk when Ferguson offered to pay them on March 18, I think it quite
likely that Salter's query centered on Ferguson's "gripe," as the latter testified, and not
on the nonpayment of his dues Salter also does not quote himself as telling Ferguson
that the latter was no longer a member of the Union I have no doubt that Salter made
a statement to that effect. It is undisputed that Ferguson had offered to pay his dues to the
clerk before he spoke to Salter, and the circumstance that Ferguson left without paying
his dues, or renewing the offer, gives support to his testimony to the effect that Salter
told him that he was no longer a member of the Union. Ferguson testified that Salter
"said a lot of things leading to nothing," but did not describe the "things." I think it
likely that this portion of Ferguson's testimony has reference to remarks made by Salter
during the conversation concerning wage increases given to the Company's employees
under the contract negotiated by the Union. In his description of the conversation,
Salter pictures himself and Ferguson as discussing these increases.
15 As Salter testified , a "work order" signifies that the individual to whom it is issued
by Local 13 "is a member in good standing of the Union."
16 Fisk testified that Ferguson was not discharged by the Company. I think that what
Fisk meant by this was that the Union, and not the Company, was responsible for
Ferguson's termination. Be that as it may, the employment - relation was between the'
Company and Ferguson , and the facts, rather than Fisk 's conclusions , govern the question
whether the Company terminated the relation.
17 Radio Officers' Union, eto. v. N. L. R. B., 347 U. S. 17.
INTERNATIONAL tRO'ptERIfOOD O1' TEAMSTERS 723
Persuasive support for the General Counsel' s position may be found in the marked
contrast between the position Wherry took on the subject of Ferguson's dues
arrearage on March 13, the day before a copy of the decertification petition was
served upon the Union, and the, attitude he expressed on the same subject after
such service and following his interrogation of Ferguson on March 14 regarding the
reason for dissatisfaction with the Union (or, in other words, the reason for the
filing of the petition). On March 13, Wherry told Ferguson that he would be
required to pay what he owed by March 15 "like everyone else," and the business
agent agreed that it would be "all right" for Ferguson to "send (his) dues in Friday
night." However, on March 15 it was no longer "all right" to follow that course,
for on the afternoon of that date Wherry rejected a proposal by Ferguson that the
latter send his dues to the Union's office that day with Kienow, and the business
agent told Ferguson that the latter "would have to talk" to Salter at the Union's
office.
Why the shift. from the position Wherry took on March 13 to the one he
expressed on March 15? Why the departure in Ferguson's case from the Union's
practice of permitting members to send their dues to the Union's office, or to bring
them there, as they chose? These questions are not credibly answered by Salter's
testimony to the effect that his "purpose in wanting" to talk to Ferguson was to
ascertain the reason for his failure to pay his dues, and that had Ferguson refused
to see him and "insisted upon paying his delinquent dues," the payment "would
have been accepted." These self-serving claims manifestly do not jibe with the
undisputed evidence that Wherry told Ferguson on March 15 that the latter "would
have to talk" to Salter at the Union's office; and that when Ferguson made an offer
to pay his dues to a clerk at the office on March 18, she told him that he
would "have to talk to Bud Salter first." Nor is the shift in Wherry's attitude
credibly explained by the business agent's testimony that he asked Fisk on March
14 to discharge Ferguson because the latter "wouldn't cooperate with me in cleaning
up this dues situation and delinquency by March the 15." Actually, as I have in
effect noted earlier, in his conversation with Fisk on March 14, Wherry did not,
in terms at least, ask Fisk to discharge Ferguson, but putting that aside, it is plain
that Ferguson showed no less cooperation "in cleaning up this dues situation" on
March 14 and 15 than he had shown on March 13 when Wherry agreed to Ferguson's
,request that he be permitted to send his dues to the Union's office on March 15.
The alleged lack of cooperation is something less than a candid explanation of what
led Wherry to renege, soon after service of a copy of the petition on Local 13, on
what he had told Ferguson only the day before such service. The true explanation,
I am convinced, is that the Union became aware with the service of a copy of the
petition on March 14 that Ferguson was its sponsor, and that the organization
decided, for that reason, to use the fact that Ferguson was in arrears in his dues
as a pretext to bring his employment by the Company to an end. In fact, some
testimony Wherry gave supports this view. He was asked at one point whether he
was prompted to request Fisk to,discharge Ferguson by anything the latter said to
him during their conversation on March 14, and he replied: "Well, he [Ferguson]
wasn't a bit happy with the contract of the Union, and so my feeling was that he
would be a lot better off if he didn't have to be a part of it. I think that that was
his feeling." This testimony which, significantly enough, contains no reference to
Ferguson's dues arrearage, is but another way of saying that it was Ferguson's
dissatisfaction with the Union (which he expressed in effect by filing the petition,
as well as in reply to Wherry's query on March 14) was the factor which caused
the organization to bring about Ferguson's discharge.
Additional support for this conclusion is supplied by the credible evidence of
Ferguson's experiences at the union hall on March 18, and by the inferences the
record warrants concerning the reason why Ferguson was required to call on
Salter. Salter claims that his "purpose in wanting to talk" to Kienow and Ferguson
was to ascertain from the two parties what their- objections were or what their
reasons were for failure to pay their initiation fees and pay their dues and keep
in good standing with the Union." But, it will be recalled, Wherry was content
on March 13 to accept Ferguson's'proposal that he send his dues to the Union on
March 15; Kienow offered to give Wherry a check for what he owed on the
afternoon of March 14; and Ferguson in effect made an offer to Wherry on March
15 to send his dues to the union hall with Kienow. Against that background, I
do not believe Salter's claim that his "purpose in wanting to talk" to Ferguson
"was to ascertain" his reasons for the failure to pay his dues . Particularly bear-
ing in mind -the shift in Wherry's attitude, manifested soon after the service of a
copy of the decertification petition upon the Union, I am persuaded , rather, that
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ferguson was required to see Salter because Ferguson 's sponsorship of•the decerti-
fication petition was a matter of substantial concern to the Union ( as is evident
from Wherry's conversation with Ferguson on March 14); 18 that because of
such concern , Ferguson 's future status in the organization , in the view of either
Wherry or Salter, or, both, was a matter for Salter 's attention as president of Local
13; and that that was the real reason for the requirement that Ferguson see Salter.
These inferences find additional support in the tenor of the conversation between
Salter and Ferguson on March 18 . Alluding in effect to Ferguson 's sponsorship
,of the petition , Salter asked Ferguson what his "gripe was ," and when Ferguson
replied ; that employees of the Company did not want the Union to represent them
.after June 1, this brought a response from Salter that Ferguson was "young" and
"would be working a long time ," or, in other words, a veiled threat by Salter that
Ferguson would be subject to reprisal at the hands of the Union "for a long time"
because of his opposition to the organization . In view of the tenor of Salter's re-
marks , it is little wonder that Ferguson inquired whether he was "out of the
Union," an inquiry which produced the reply, "That's it," from Salter, or, in other
words, an edict by Salter to the effect that Ferguson was no longer 'a member
of Local 13.
Upon a total view of the record, I am convinced that Salter took that position
not because Ferguson was in arrears in his dues but because he had filed a petition
with the Board seeking the decertification of the Union as the collective- bargaining
representative of employees of the Company. By force of his exclusion from the
Union, Ferguson was in effect denied the "back-to-work order" which the Union,
and the Company upon the Union's insistence , required that he have as a condi-
tion of his continued employment by the Company on and after March 18. The
sum of the matter is that by discharging him on that date because he had no
such order the Company discriminated against Ferguson in violation of Section
8 (a) (3) of the Act; that the Union caused such discrimination , thus violating
Section 8 (b) (2) of the Act; and that by its conduct in that regard the Union
restrained and coerced employees in the exercise of rights guaranteed them by
Section 7 of the Act, and thereby violated Section 8 (b) (1) (A) of the statute.19
The General Counsel views the time Kienow spent away from his work on
March 18 in connection with his visit to the Union's office as a period of suspen-
sion from his work, maintaining, in that regard , that the Union caused the Com-
pany to suspend Kienow for reasons other than a failure by him "to tender the
periodic dues and the initiation fees uniformly required" by the Union; that the
38 That the Union ( in the person of Salter , at least ) was concerned over the decertifica-
tion petition is not necessarily negated by the fact that on March 29, 1957, some 11 days
after Ferguson 's discharge , it "entered into a stipulation for a consent election" by the
Board on the question of decertifying Local 13 The issues iequire no finding concerning
the Union 's motive for consenting to the election , but it is not inappropriate to note a
number of possible reasons for the consent that are not inconsistent with a conclusion that
the organization harbored animus toward Ferguson because he had filed the petition. Con-
ceivably , for example , the Union consented to the election because it felt that its interests
would be served by expediting the election , or it is possible that once the Union brought
about Ferguson 's discharge, it was-no longer concerned about the results of an election.
(Actually , it may be noted ,i in passing , that in the election which was held on May 27, 1957,
all "six eligible voters" who participated voted for decertification of the Union )
19 In addition to the contention that the Union had an unlawful motivation for pro-
curing Ferguson 's discharge , the General Counsel takes the position that irrespective of the
Union 's motive, its conduct in causing the discharge was unlawful because, as the General
Counsel's brief puts it, Ferguson "had previously made two full and unqualified tenders
of, his dues ." In support of that position , the General Counsel relies upon Aluminum
Workers International Union, Local No. 35, A. F. L (The Metal Ware Corporation), 112
NLRB 619, enfd. 230 F. 2d 515 (C. A. 7), and other decisions of the Board that have
applied its holding. In the Aluminum Workers case, the Board held that "a full and
unqualified tender [ of dues ] made any time prior to actual discharge , and without regard
as to when the request for discharge was made, is h proper tender and a subsequent dis-
charge based upon the request is unlawful ." It may be noted that the Second Circuit
has described this holding as "an incorrect statement of the law" (The International Asso-
ciation of , Machinists v. N. L. R. B., 247,F. 2d 414 ( C. A. 2)), and that the Ninth Circuit
has observed that the doctrine "stands at Vest on doubtful footing" ( N. 'L. R. B, v.
Technicolor Motion Picture Corporation, etc., 248 F. 2d 348 ). Be that as it may, in view
of the findings made above on the subject of the Union 's motivation , it is unnecessary to
consider the applicability of the holding of the Aluminum Workers case to this proceeding.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 725
suspension thus constituted discrimination against Kienow in violation of Section
8 (a) (3); and that by causing such discrimination, the Union violated Section
8 (b) (2). These contentions are apparently harnessed to a position to the effect
that the Union's object in requiring Kienow to come to the union hall was to harass
him rather than to secure payment of what he owed the organization.
Turning first to the reason for the requirement that Kienow call on Salter, I
do not believe Salter's testimony that his "purpose in wanting to talk" to Kienow
was "to ascertain" the latter's reason for failing to pay his initiation fee and dues.
This claim strikes an implausible note in the light of the undisputed evidence
that Kienow offered to pay Wherry what he owed on March 14, and its implausi-
bility becomes marked in the light of certain features of Wherry's own testimony,
and of the credible evidence of what took place when Kienow came to the Union
Hall on March 18. It is evident from Wherry's testimony that he was dissatisfied
with what he viewed as Kienow's indifference toward the Union and himself on
March 13, and that he associated this "smart attitude" by Kienow with the circu-
lation of a decertification petition at the Company' s plant . Significantly, as the
credible evidence establishes, on March 18, Salter lectured Kienow that "you
had to be a man to belong to the Union," termed Kienow "just a punk," and
later referred to the employee as "that smart little bastard." These terms of abuse
were palpably the result and projection of Wherry's dissatisfaction with Kienow's
"smart attitude." Certainly, they do not evidence a "purpose" by Salter "to ascer-
tain" the reason for Kienow's failure to pay what he owed. Probably the best
indication that Salter had no such purpose is to be found in the fact that he in
effect expressed a lack of interest in payment by Kienow when he told the latter
that he did not care "if [Kienow] really joined up again or not"; and, contrary
to the Union's custom, refused to accept Kienow's personal check, thereby putting
the employee to the trouble of going to his bank, and causing him to lose time from
his work. The credible evidence leaves me in no doubt that Salter used the occasion
of Kienow's attendance at the union hall not to make an inquiry into the reason
for Kienow's arrearage, but to lecture and abuse Kienow, and to hamper the
employee's effort to pay what he owed. Upon a total view of the record, I am
persuaded, and find, that what led to the requirement that Kienow see Salter was
Wherry's view that Kienow had a "smart attitude" toward the Union and Wherry
as a result of the circulation of the decertification petition; and that the
object of the requirement was not to ascerain the reason for any failure by Kienow
to pay what he owed, but to harass him and demonstrate to him that a "smart,
attitude" was not a profitable one.
The remaining question is whether the Union, by force of the requirement that
Kienow see Salter at the union hall, caused the Company to deny Kienow employ-
ment for the time he used on the morning of March 18 to comply with the require-
ment. It will be recalled that Wherry told Fisk on March 14 that Kienow (as
well as Ferguson) was to work through March 15 and then see Salter at the union
hall "to get straightened out on [his] delinquent dues." Actually, as in effect found
above, Kienow, like Ferguson, was required to see Salter for a reason other than
the one Wherry expressed to Fisk, but whether or not one bears that in mind,
Wherry's statement to Fisk regarding Kienow on March 14 was in effect an
admonition that the Company was not to employ Kienow beyond March 15 with-
out the consent of the Union. That that was the intended result of Wherry's state-
ment is evident from the business agent's request for an explanation from Fisk
on the morning of March 18 as to the reason why Kienow had been allowed to
work that morning, and admonitions by both Wherry and Salter on that occasion
that Kienow should not be permitted to work without "a back-to-work order"
from the Union. To be sure, Kienow was put to work when he reported at his
customary starting time on March 18, and he left for the union hall before Fisk
spoke to Wherry and Salter, but it is clear from Fisk's testimony that he permitted
Kienow to work that morning only on a provisional basis, pending the outcome
of efforts by Kienow to see Salter; and that he instructed Kienow "to contact"
Salter and see the latter at the union hall as soon as he could. I think it clear
that Kienow acted upon Fisk's instruction when he took time off from work to
journey to the union hall; and that the instruction, in turn, was the product of
the requirements expressed by Wherry to Fisk on March 14.
I find, in sum, that the Union caused the Company to deny Kienow employment
for a period of time on March 18 for a reason other than any failure by him to
tender the periodic dues and initiation fees uniformly required by the Union as a
condition of acquiring or retaining membership; that such denial of employment
discriminated against Kienow in violation of Section 8 (a) (3) of the Act; and that
by causing such discrimination , the Union violated Section 8 (b) (2) of the Act,
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and restrained and coerced employees in the exercise of rights guaranteed them
by Section 7 of the Act, thereby violating Section 8 (b) (1) (A) of the statute.20
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section III, above, occurring in connection
with the operations of the 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
It has been found that the Union has engaged in unfair labor practices violative
of Section 8 (b) (1) (A) and (b) (2) of the Act. In view of the findings, I shall
recommend that the Union cease and desist from its unfair labor practices and take
certain affirmative action designed to effectuate the policies of the Act.
The Union's conduct in causing the Company to discriminate against Kienow and
Ferguson strikes at the heart of the rights guaranteed employees by the Act.21 These
unfair labor practices are closely related to other types of unfair labor practices
abridging the rights guaranteed employees by Section 7 of the Act, and prohibited by
Section 8 (b) (1) (A) and (b) (2) of the statute. In view of the nature of the
unfair labor practices found above, and of the fact that the Union has previously
violated Section 8 (b) (1) (A) and (b) (2) of the Act,22 there are reasonable
grounds to anticipate that the Union will infringe upon other rights guaranteed em,
ployees in the future unless appropriately restrained. Therefore, in order to make
effective the interdependent guarantees of Section 7, I shall recommend an order
below which will in effect require the Union to refrain in the future from abridging
any of the rights guaranteed employees by said Section 7.23
As it has been found that the Union caused the Company to discriminate against
Kienow and Ferguson in violation of Section 8 (a) (3) of the Act, and that the
Union thereby violated Section 8 (b) (2) of the Act, I shall recommend that the
Union make Kienow whole by payment to him of the wages he lost as a result of
the discrimination against him on March 18, as found above; that the Union make
Ferguson whole for any loss of pay he may have suffered by reason of the Com-
pany's discrimination against him, by payment to him of a sum of money equal to
,the amount of wages he would have earned but for his discharge, between March
18, 1957, and the date that the Union notifies the Company, in writing, as hereafter
provided that it has no objection to the employment of Ferguson by the Company;
and that the loss of pay be computed on a quarterly basis, in accordance with the
formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289, to
which the parties to this proceeding are referred.
Upon the basis of the foregoing findings of fact, and of the entire record in this
proceeding , I make the following conclusions of law:
CONCLUSIONS OF LAW
1. Local 13 is, and has been at all times material to this proceeding , a labor
organization within the meaning of Section 2 (5) of the Act.
2. Lumber Yard Supply Company is, and at all times material to this proceeding
has been, an employer within the meaning of Section 2 (2) of the Act.
20 The General Counsel's brief makes a point of the forefeiture of the $15 Kienow
initially paid on account of the initiation fee required by the Union, and of testimony by
Salter, as the brief puts it, that "this forfeiture was not authorized by the Union constitu-
tion or bylaws, but was just 'the practice of the union' " It is far from clear, to what
end the point is made. There is no allegation in the complaint that the Union required
the payment of a "discriminatory" initiation fee from Kienow in violation of Sec-
tion 8 (b) (5) of the Act, nor is there any claim made by the General Counsel (in explicit
terms at least) that the forfeiture was not an application of uniform requirements by the
Union pertaining to the payment of initiation fees. In the absence of a clear explication
of the General Counsel's position regarding the legality of the forefeiture, I see no reason
to determine whether the forfeiture was warranted by the language on the rear of the
membership application signed by Kienow, or to pass on the legality of the forfeiture.
91 See N. L. R. B. v. Entwhi8tle Mfg Co., 120 F. 2d 532 (C. A. 4).
ea See the Board's decision in Broderick Wood Products Company, 118 NLRB 38, of
which I take official notice for the purpose of recommending a remedy in this proceeding.
as May Department Stores v. N. L. R. B., 326 U S. 376; Bethlehem Steel Co. v.
N. L. R. B., 120 F . 2d 641 (C. A., D. C.).
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 727
3. By causing Lumber Yard Supply Company to discriminate against Ronald
Kienow and Lloyd E. Ferguson in violation of Section 8 (a) (3) of the Act, as
found above, Local 13 has engaged in unfair labor practices within the meaning of
Section 8 (b) (2) of the Act.
4. By restraining and coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act as found above, Local 13 has engaged in unfair labor prac-
tices within the meaning of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Sections 2 (6) and 2 (7) of the Act.
[Recommendations omitted from publication.]
International Brotherhood of Teamsters , Chauffeurs, Ware- -
housemen and Helpers of America ; Central States Drivers'
Council ; and International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , Over-the-Road
and City Transfer Drivers, Helpers, Dockmen and Warehouse-
men, Local No. 147 and Clark Bros. Transfer Company. Case
No. 17-CC-60. August °,9,1958
DECISION AND ORDER
On May 8, 1958, Trial Examiner Eugene E. Dixon issued his Inter-
mediate Report in the above-entitled proceeding finding that Respond-
ent Council and Respondent Local i had engaged in and were engaging
in certain unfair labor practices and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. The Trial Exami-
ner also found that Respondents had not engaged in certain other
unfair labor practices and recommended that the complaint be dis-
missed with respect thereto. Thereafter, the General Counsel and
Respondents filed exceptions to the Intermediate Report and sup-
porting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Bean, and
Fanning].
The Board 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. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case 2 and hereby' adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following addition.
' The Trial Examiner found that Respondent International had not engaged in any
unfair labor practices . As the General Counsel has not excepted to this finding of the
Trial Examiner, we adopt it pro forma.
'Respondents ' request for oral argument is denied because the record , the exceptions,
and the briefs adequately present the issues and the positions of the parties.
121 NLRB No. 92.