McCarron Co.

National Labor Relations Board - Board Decisions

Jul 8, 1952

100 N.L.R.B. 1537 (N.L.R.B. 1952)

McCARRON CO. 1537
6. All machine shop employees, including machinists "T" and "M",
tool and die makers, welder "T", die repairmen "T" and "M", tool
inspector "M", tool and die grinders "T", the shoe grinder "T", shoe
planer operator, the skip mill operator, and handyman and sweeper.
If a majority of the employees in any of the voting groups vote for
the Petitioner, they will be taken to have indicated their desire to be.
represented in a separate unit, and the Regional Director conducting
the elections directed herein is instructed, in that event, to issue a cer-
tification of representatives to the Petitioner for such unit, which the
Board, under such circumstances, finds to be appropriate for purposes
of collective bargaining. If, however, a majority of the employees in
any of the voting groups vote for the Intervenor, they will be taken
to have indicated their desire to remain part of the existing production
and maintenance unit, and the Regional Director is instructed to issue
a certificate of results to such effect.
[Text of Direction of Elections omitted from publication in this
volume.]
MCCARRON CO., A PARTNERSHIP CONSISTING OF GEORGE A. VARE AND
EDWIN H. VARE, JR., CO-PARTNERS; AND VARE BROTHERS, A PART-
NERSHIP CONSISTING OF GEORGE A. VARE AND EDWIN H. VARE, JR.,
CO-PARTNERS and GEORGE PAYTAS
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, LOCAL UNION 470, AFL and
GEORGE PAYTAS . Cases Nos. . -CA-413 and 4-CB-83. July 8,1953
Decision and Order
On November 26, 1951, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding. In his Inter-
mediate Report, the Trial Examiner found that during the period
from April 1 to April 28, 1950, the Respondent Employer, by Otto
Becker, its manager : (1) Interrogated George Paytas with respect
to his status as a member of the Union; (2) urged him to acquire
membership in good standing in the Union; and (3) threatened him
with loss of employment unless he should acquire membership in
good standing in the Union, and that on or about April 28, 1950, the
Respondent Employer terminated the employment of Paytas and
thereafter refused to reinstate him for the reason that he was not a
member in good standing of the Union. The Trial Examiner like-
wise found that, because George Paytas was not a member of the
Union in good standing, the Union, during the period from April 1 to
April 28, 1950, threatened George Paytas with loss of benefits or
100 NLRB No. 13.
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment unless he acquired membership in good standing in the
Union, caused the Employer to discriminate against Paytas with
respect to his hours of work, and on April 28, 1950, caused the Em-
ployer to discharge Paytas and thereafter refuse to reinstate him.
However, because the Trial Examiner concluded that the complaints
herein were issued in violation of Section 10 (b) of the Act, he granted
the Respondent's motions to dismiss the complaints and recommended
that the complaints be dismissed. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, a copy of which is attached hereto, the exceptions
and brief, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
only insofar as they are consistent with our findings, conclusions, and
order herein set forth.
1. Because of his conclusion that the complaints herein were issued
in violation of Section 10 (b) of the Act, the Trial Examiner did not
pass upon the Respondents' motions to dismiss the complaints for
failure of proof that the Respondent Employer was engaged in com-
merce within the meaning of the Act. He likewise did not pass upon
the effect of the Respondent Union's refusal to enter into a stipulation
with the Respondent Employer and the General Counsel as to the
extent and nature of the Respondent Employer's operations.
With regard to the Respondent Union's refusal to enter into the
stipulation with the Respondent Employer and the General Counsel,
it is clear that such stipulation was made to facilitate the hearing and
was received in lieu of the evidence which could have been obtained
from the examination of the Respondent Employer's records and the
testimony of the Respondent Employer's bookkeeper. The Union's
attorney stated at the hearing that he would agree to the facts stated
in the stipulation, but based his refusal to join in the stipulation upon
the ground that such evidence was not relevant because the original
charges filed related to a different employer. Accordingly, we find
that the Union is bound by the stipulation as to the extent and nature
of the Respondent Employer's operations and that the Union waived
whatever right it might have had to require that such facts be proved
by testimony and other evidence.
The Respondent Employer's Operations
McCarron Co., the Respondent Employer charged with the unfair
labor practices alleged in the complaints, is a partnership con-
McCARRON CO. 1539
listing of George A. Vare and Edwin H. Vare, Jr. It is engaged in
the operation of dump trucks within certain counties of the State of
Pennsylvania and offers such trucks for hire under a certificate of
public convenience issued by the Pennsylvania Public Utilities Com-
mission at rates established by that commission. Vare Brothers is a
partnership likewise consisting of George A. Vare and Edwin H. Vare,
Jr. It performs the work of a general contractor, and specializes
in the construction and maintenance of conduits and aerial and over-
head power lines.
The books and records of the two companies are kept separately
and McCarron Co. charges Vare Brothers for services performed
at the rates established by the Pennsylvania Public Utilities Com-
mission. However, one individual, who acts as a manager, has author-
ity to make minor decisions relating to the business of either McCarron
Co. or Vare Brothers and major decisions relating to either busi-
ness are made by George A. Vare, one of the partners. Although
the operations performed by the two partnerships are different, the
greater part of McCarron's trucking operations is supplementary to
the construction work performed by Vare Brothers.
It was stipulated that during the 7 months from April 1 to No-
vember 1, 1950, McCarron Co. hauled earth from a construction
site for Vare Brothers, the value of such services approximating
$95,485. Testimony establishes that almost all of the work which
McCarron Co. did for Vare Brothers was on construction work
for the Philadelphia Electric Company, a public utility."
Because of the common ownership of both businesses by the Vare
Brothers, the common supervision by the manager and by George A.
Vare, and the supplementary nature of McCarron's operations with
respect to those performed by Vare Brothers, we find that McCarron
Co. and Vare Brothers constitute a single employer within the
meaning of the Act 2 Accordingly, as the Respondent Employer;
during the 7-month period following April 1, 1950, furnished services
which were necessary to the operation of a public utility and had a
value in excess of $50,000, we find that the Respondent Employer is
engaged in commerce within the meaning of the Act and that it will
effectuate the policies of the Act for the Board to assert its jurisdiction
in this case.3
" See Philadelphia Electric Company, 95 NLRB 71.
'Wm. P McDonald Corporation , 97 NLRB 1471; Camp Concrete Rock Company, 94
NLRB 296 ; Gifford-Hill &.Company, Inc ., 90 NLRB 428.
8 Scott Construction Co., Inc, 91 NLRB 9,30 ; cf Hollow Tree Lumber Company, 91
NLRB 635. Contrary to the contention of the Respondent Union, the Board does utilize
the same criteria for determining whether or not to exercise its jurisdiction in unfair
labor practice cases and representation cases . William W. Kimmins & Sons, 92 NLRB
98, footnote 1.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner concluded that Section 10 (b) operated to
bar the issuance of the complaints in this case, for the reason that the
amended charges filed by Paytas constituted charges of new and dif-
ferent unfair labor practices committed at a different time and by a
different employer from those alleged in the original charges filed by
Paytas. We agree with neither the Trial Examiner's conclusion nor
the reasons which he advances in support of his conclusion.
George Paytas, the charging party, was hired in the latter part of
October 1948, by Charles McCarron, an individual proprietor who
operated a dump truck business in Philadelphia. From the time he
was hired until his discharge on April 28, 1950, Paytas was the object
of discrimination by his successive employers and the Union, in that
he was employed only when all union men had been given jobs, re-
gardless of whether they were hired before or after Paytas.
On August 19, 1949, Charles McCarron -died, but his dump-truck
business was continued by the executors of his estate. On April 1,
1950, the estate of Charles McCarron sold to a partnership, consist-
ing of George A. Vare and Edwin H. Vare, all the trucks, physical
equipment, merchandise, tools, and real-estate, used in the business and
the certificate of public convenience from the Pennsylvania Public
Utilities Commission, as well as the right to use the name McCarron
in the operation of the business. The business was thereafter con-
ducted under the name of McCarron Co. in the same manner and
with the same employees, who retained seniority from the date they
were hired by McCarron, the individual, or-the estate. Although the
employees did learn of the change in ownership of the business from
conversations with the union steward and the Respondent's super-
visor, they were given no formal notice of the change.
As found by the Trial Examiner, Paytas was discharged by the
Respondent Employer on April 28,1950, because he was not a member
of the union in good standing. Thereafter, on August 14, 1950,
Paytas filed charges with the Board. The original charge of 8 (a) (1)
and (3) violations alleges, in the printed portion of the charge, that
an employer named Charles McCarron Co. had engaged and was
engaging in unfair labor practices (emphasis supplied). As the basis
of the charge, the following statement was typed on the form :
The Company, through Otto Becker, refused to hire George
Paytas for a full time job as a- truck driver in February and
March 1950 because he had been unable to get a work permit from
Local 470, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL.
The original charge of 8 (b) (1) and (2) violations likewise alleges,
in the printed portion of the charge, that the Union had engaged and
McCARRON CO. 1541
was engaging in unfair labor practices (emphasis supplied). As the
basis of the charge, the following statement was typed on the form :
The above named union in February and March 1950 caused or
attempted to cause the Charles McCarron Co:, Phila., Pa., to dis-
criminate against George Paytas in violation of'Section 8 (a),
subsection (3) in that employment as a truck driver was denied
to him because of his failure to'join the above named union.
On June 12, 1951, Paytas filed amended charges which correctly
named the Respondent Employer. As the basis of the amended charge
of 8 (a) (1) and (3) violations the following statement was typed on
the form :
McCarron Co., a partnership consisting of George A. Vare and
Edwin H. Vare, Jr., copartners, through its officers and agents,
deprived George Paytas of full time work on or about April 1,
1950, to on or about April 28, 1950; terminated his employ-
ment on or about April 28, 1950, has failed and refused to rein-
state him, to his former job or to a substantially equivalent job
since April 28, 1950, all because he was not a member of . . . [the
Union] ... ; by these and other acts, including the question of
Paytas as to his union affiliation, the urging of Paytas to join
said Union, and the threatening loss:of benefits or employment to
Paytas unless he should join said Union, it interfered with, re-
strained and coerced employees in the exercise of rights guar-
anteed in Section 7 of the Act.
As a basis of the amended charge of 8 (b) (1) and (2) violations,
the following statement was typed on the form :
The above union, through its officers and agents, on and after
April 1, 1950, caused and attempted to cause the McCarron Co.,
employer of the charging party, to discriminate against him in
violation of Section 8 (a) (3), with respect to his hire, tenure,
and conditions of employment.
Both the original and the amended charges alleging violations of
Section 8 (a) (1) and (3) were mailed to the address of the Respond-
ent Employer and were received by Becker, the Respondent Em-
ployer's supervisor.
It is clear that the individual differences between the original and
amended charges, if considered separately, would not be sufficient to
render Section 10 (b) operative and thus bar the issuance of the
complaints in this case. In Cathey Lumber Company ,4 the Board
reached the conclusion that ". . . the proviso to Section 10 (b)
' 86 NLRB 157, 162-163, enforced N. L. R. B. V. Cathey Lumber Company, 185 F. 2d
1021 (C. A. 5, 1951), set aside on other grounds 189, F. 2d 428.
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely extinguishes liability for those unfair labor practices which
were committed more than 6 months prior to the filing and service of
the charge initiating the case , and that a complaint may lawfully
enlarge upon a charge if such additional unfair labor practices were
committed no longer than 6 months prior to the filing and services
of such charges." Thus, the change from the allegations of the orig-
inal charge that the company refused to hire Paytas for a full-time
job to the allegations of the amended charge that the company had
deprived him of full-time work, discharged him, and interrogated
and threatened him would not render Section 10 (b) operative or bar
the issuance of the complaints herein.5 Nor would Section 10 (b) be
applicable if the only variation between the original and the amended
charges related to the dates on which the unfair labor practices oc-
curred where, as here, the unfair labor practices alleged in the
amended charges occurred within 6 months of the date of the filing
of the original charges.6 Likewise, if the only variation between the
original and the amended charges was that the original charges failed
to set out the correct name of the employer, i. e., a case of misnomer,
Section 10 (b) would not be applicable.7
However, this case presents a peculiar factual situation in which,
because of the change in ownership and the name of the business
and the difference in the dates of the alleged unfair labor practices,
the original charges might be construed to relate only to the unfair
labor practices of the estate of Charles McCarron and not to those
of the Respondent Employer. We believe that such a construction
of charges served on the Respondent Employer and Respondent Union
would be unduly restrictive and technical.
As the Board stated in Cathey Lumber Company,8 the proviso to
Section 10 (b) is a statute of limitation, and no more. The require-
ment of service of the charge in conjunction with the filing thereof
was doubtless included to make certain that the operation of the
statute could not be tolled without notice to the person charged that
the date had been established, on which his liability for unfair labor
practices might commence. However, specificity is the purpose and
function of the complaint, not the charge. We believe, and we find,
5 N. L R B. v Stokely Foods, Inc., 193 F 2d 736 (C. A. 5,1952) ; American Shuffleboard
Co. V N. L R B., 190 F 2d 898 (C. A 3, 1951) ; N. L. R B v Cathey Lumber Company,
185 F 2d 1021 (C A. 5, 1951) , set aside on other grounds 189 F. 2d 428, Kansas Milling
Co v N L. R B, 185 F . 2d 413 (C A. 10, 1951).
eJ H Rutter-Rex Manufacturing Company, 86 NLRB 470. cf. Stokely Foods, Inc, 91
NLRB 1267, Tennessee Knitting Mills, Inc ., 88 NLRB 1103.
7 Fairchild Cafetenna. 92 NLRB 809; Vulcan Forg,ng Company, 85 NLRB 6185 6251; cf.
Delwce Motor Stages, 93 NLRB 1425, footnote 2; Illinois Bell Telephone Company,, 88
NLRB 1171, footnote 3. Cf. also Grannis v Ordean, 234 U. S 385 ( 1914 ) ; Willsams v.
Pennsylvania R. Co., 91 F Supp 652 (D C., D Dela., 1950 ) ; Godfrey v. Eastern Gas ci
Fuel Associates , 71 F. Supp 1.75 (D. C., D. Mass ., 1947.).
8 86 NLRB 157, 161-162, enfd N. L. R B. v. Cathey Lumber Company , 185 F. 2d
1021 (C. A 5, 1951), set aside on other grounds 189F. 2d 428.
MCCARRON CO. 1543
that the filing and service of the original charges in this case upon the
Respondent Employer and the Respondent Union satisfied the re-
quirements of Section 10 (b).
In reaching this conclusion, we note that the purpose of a charge
is to set the Board's investigatory processes in motion; it does not
frame the issues for litigation with the precision normally sought in
pleadings at law.' To require that the charging party, in this case
a truckdriver, define with the precision of an experienced attorney
the particular legal entity operating the business by which he was
employed and correctly set forth the changes in ownership thereof 10
as a prerequisite of a valid charge, would be inconsistent with the in-
vestigatory functions of the Board and the remedial purposes of the
Act. As the Board said in Cat hey Lumber Company 11 such a require-
ment "would emasculate the Board's long recognized investigatory
power and would put the onus of investigation on private parties, a
situation hardly consistent with the public nature of the Act and the
agency created to administer it."
Considering the facts of this case more specifically, we note that
the Respondent Employer was actually served with both the original
and the amended charges,12 that the unfair labor practices alleged by
the original charges to have been committed in February and March
relate to the same employee and are of the same nature as those com-
mitted by the Respondent Employer in April, and that the original
charges, in the printed portion thereof, alleged that unfair labor prac-
tices had been and were being committed. We also note that the
Respondent Employer took over an operating business under circum-
stances analogous to those cases in which the Board has held bona fide
successors liable for remedying the unfair labor practices of their
predecessors. 13 Although the complaints in this case do not seek a
remedy for the unfair labor practices committed by the Respondent
Employer's predecessors, the original charges contained allegations
that unfair labor practices had been committed by a business enter-
° N L R. B. v Indiana d Michigan Eleetric Co., 318 U . S 9, 18 ( 1943 ), N. L. R B.
v Kingston Cake Co, 191 F. 2d 563 (C A. 3, 1951) , Consumers Power Co. v. N L R B,
113 F . 2d 38 ( C. A 6, 1940 ) ; Cathey Lumber Company, 8^6 NLRB 157.
10 As mentioned above, the employees were never formally notified of the change of
ownership.
11 86 NLRB 157, 163,
12 Becker signed the registered mail return receipt for the original charge against the
Employer as McCarron Company, and then signed his name as agent for the Respondent
Employer.
13 The Alexander Milburn Company, 78. NLRB 747, j8ee Charles R Krimm Lumber
Company, et at, 97. NLRB 1574; Indianapolis Wire-Bound Box Company , 93 NLRB 875;
The L. B. Hosiery Co., Incorporated , 8& NLRB 1000; Un4on Products Company, 75 NLRB
591. Cf. N. L. R. B. V. Cotten , 10,51 F. 2d 179,, 183 (C. A. 6, 1939 ), where the court in
denying a contention that the affirmative remedy of reinstatement could not be enforced
because of the death of one of the partners , said, "It is the employing industry that to
sought to be regulated and brought within the corrective and remedial provisions of the
Act in the interest of industrial peace."
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prise which was owned and operated by the Respondent Employer at
the time the charges were filed and served. The Respondent Em-
ployer had purchased a going concern, continued the same methods of
operation, kept the same work force, and retained the same local su-
pervisor through whom the unfair labor practices had been committed
according to the original charges. Under these circumstances, we
believe that the service upon the Respondent Employer of the original
charges was, notwithstanding the misnomer therein, reasonably cal-
culated to and did in fact Y4 put it on notice of a claim against it for
remedying the unfair labor practices of its predecessor's and also to
charge the Respondent Employer with, notice of a claim of continued
and related unfair labor practices committed after the transfer of the
business and of Paytas' desire to obtain a remedy for such unfair labor
practices .16 In particular is this so in view of the fact that the unfair
labor practices committed after the transfer of the business were not
only related, to and a continuation of the discriminatory practices al-
leged in the original charges, but were the culmination of such prac-
tices. We therefore find that the filing and service of the original
charges, despite their technical deficiencies, were sufficient notice to
satisfy the requirements of both due process and the proviso to Section
10 (b) of the Act.
Insofar as the preceding discussion affects the Respondent Union,
it should be noted that the problem of the application of Section 10
(b) to the charges against the Union appears in a different posture
from that relating to the charges against the Respondent Employer.
The Union was notified by the original charges of the place and
nature of the alleged unfair labor practices and of the employee in-
volved. By no conceivable construction could the original charges
against the Union be considered to relate to any other union than the
Respondent Union. Hence, the variations between the original and
amended charges with respect to the correct name of the Employer
and the exact dates of the unfair labor practices alleged are imma-
terial where, as here, the unfair labor practices found are a continu-
14 There is no evidence in the record that the Respondent Employer expressed, any doubt
when served with the original charge that it was the party intended to be charged.
3° We find it immaterial that such a claim might not have been enforceable or that, as
argued by the Respondent Employer, the Board may not have had jurisdiction over the
unfair labor practices committed by the Respondent Employer 's predecessors . As stated
above, we are not concerned with requiring the Respondent Employer to remedy the unfair
labor practices of its predecessors nor are we concerned with the Board's jurisdiction ovei
such unfair labor practices . The question here presented is whether or not the original
charges were sufficient in form . to satisfy the requirements of Section 10 (b) with respect
to the unfair labor practices committed by the Respondent Employer.
10 Cf. New York Central R. R. v. Kinney, 260 U . S. 340 ( 1922), wherein Justice Holmes
said, ". . . when a defendant has had notice from the beginning that the plaintiff sets
up and is trying to enforce a claim against it because of specified conduct, the reasons for
the statute of limitations do not exist and we are of opinion that a liberal rule should be
applied ." Cf also U. S . v. Memphis Cotton Oil Co., 288 U. S 62 ( 1933).
McCARRON CO. 1545
ation of and closely related to the unfair labor practices with which,
even on a very strict and literal reading, the Respondent Union was
originally charged. Accordingly, we find that the requirements of the
proviso to Section 10 (b) were satisfied with respect to the Union by
the service upon it of the original and amended charges.
3. The Trial Examiner found that Paytas was discharged on or
about April 28, 1950, because he was not a member of the Union in
good standing. The record fully supports the Trial Examiner's find-
ing, which we hereby adopt.
However, assuming arguendo that, as contended by the Respondents,
Paytas "quit" on or about April 28, 1950, we find that the termination'
of his employment under the circumstances in this case constituted
a constructive discharge based upon the fact that Paytas was not a
member of the Union in good standing. The record in this case shows
that Paytas had been discriminated against from the time he was
hired in October 1948, in that he was employed only when all members
of the Union had been given work, regardless of whether they were
hired before or after Paytas. The record also establishes that during
the month of April 1950, Paytas was again interrogated as to his
union membership, threatened with loss of his job if he did not
obtain membership in good standing with the Union, and informed
that he could not obtain seniority until he had become a member in
good standing. Such interrogation and threats justified a belief on
the part of Paytas that he could never achieve seniority or full employ-
ment status unless he yielded to the illegal demands of the Respondents
that he become a member of the Union in good standing.'' Paytas'
quitting under such circumstances, instead of continuing to be the
object of illegal discrimination, amounted to no more than his recog-
nition of the situation as it then existed and constituted a constructive
discharge by the Respondent Employer, which discharge was caused
by the Respondent Union 18
As mentioned above, the Trial Examiner found that during the
period from April 1 to April 28, 1950, the Respondent Employer
interrogated George Paytas with respect to his status as a member
of the Union, urged him to acquire membership in good standing
in the Union, threatened him with loss of employment unless he
should acquire membership in good standing in the Union, and denied
him full employment, and that on or about April 28, 1950, the Re-
spondent Employer terminated Paytas' employment and thereafter
refused to reinstate him for the reason that he was not a member
"The parties stipulated that there was no contractual provision requiring membership
in the Union as a condition of employment by the Respondent
ns Saxe-G1assonan Shoe Corporation, 97 NLRB 332 ; Psnkertons National Detective Agency,
Inc., 90 NLRB 2031 ; Randolph Corporation, 89 NLRB 1490 ; Hamilton -Scheu t Walsh
Shoe Co., 80 NLRB 1496.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in good standing in the Union. The Trial Examiner also found that,-
because Paytas was not a member of the Union in good standing,
the Union, during the period from April 1 to April 28, 1950, threat-
ened him with loss of benefits or employment unless he acquired
membership in good standing in the Union, and caused the Em-
ployer to discriminate against Paytas with respect to his hours of
work; and on April 28, 1950, caused the Employer to discharge Paytas
and thereafter refuse to reinstate him. We further find that by
engaging in such conduct the Respondent Employer violated Sec-
tion 8 (a) (1) and 8 (a) (3) of the Act and that the Respondent Union
violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
The Effect of the Unfair Labor Practices Upon Commerce
The activities of the Respondent Employer and the Respondent
Union, described above and in the Intermediate Report, occurring
in connection with the operations of the Respondent Employer, have
a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes,
burdening and obstructing commerce and the free flow of commerce.
The Remedy
Having found that the Respondents engaged in unfair labor prac-
tices, we shall order the Respondents to cease and desist therefrom
and to take certain affirmative action to effectuate the policies of
the Act.
Because we have found that the Respondent Employer discriminated
in regard to the hire and tenure of George Paytas, we shall order that
it offer him immediate and full reinstatement to the position he held
at the time of the discrimination or to a substantially equivalent
position, without prejudice to his seniority 19 and other rights and
privileges.
Because we have found that the Respondent Union violated Sec-
tion 8 (b) (2) of the Act by causing and attempting to cause the
Respondent Employer to discharge George Paytas, we shall order the
Respondent Union to notify the Respondent Employer, in writing,
that it withdraws its objections to George Paytas' employment and
that it requests the Respondent Employer to offer George Paytas im-
mediate and full reinstatement to his former or a substantially equiva-
lent position without prejudice to his seniority and other rights and
privileges.
10 See The Chase National Bank of the City of New York, 65 NLRB 827. Paytas'
seniority shall be computed from April 1 , 1950, the earliest date upon which illegal
discrimination has been found herein . Cf Childs Company , 93 NLRB 281, 286.
McCARRON CO. 1547
Because we have found that the Respondent Employer and the
Respondent Union are responsible for the discrimination suffered by
George Paytas, we shall order the Respondent Employer and the Re-
spondent Union, jointly and severally, to make George Paytas whole
for any loss of pay he may have suffered as a result of the discrimina-
tion against him. For the reasons stated in F. W. Woolworth Com-
panay,20 the loss of pay shall be computed on the basis of each separate
calendar quarter or portion thereof during the period from the dis-
criminatory action, in the case of the Respondent Employer, to the date
of a proper offer of reinstatement and, in the case of the Respondent
Union, to the date of a proper withdrawal of objections to employ-
ment. The quarterly periods, hereinafter called "quarters,' shall be-
gin with the first day of January, April, July, and October. Loss of
pay shall be determined by deducting from a sum equal to that which
Paytas normally would have earned for each quarter or portion
thereof, his net earnings'21 if any, in other employment during that
period. Earnings in one particular quarter shall have no effect upon
the back-pay liability for any other quarter. We shall also order the
Respondent Employer to make available to the Board, upon request,
payroll and other records to facilitate the checking of the amount of
back pay due.
Upon the basis of the findings of fact made above and in the Inter-
mediate Report and upon the entire record in this case, the Board
makes the following :
CONCLUSIONS OF LAW
1. McCarron Co., a partnership consisting of George A. Vare and
Edwin H. Vare, Jr., copartners, and Vare Brothers, a partnership con-
sisting of George A. Vare and Edwin H. Vare, Jr., copartners, is en-
gaged in commerce and business activities which affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local Union 470, AFL, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
3. By discriminating with respect to the hire and tenure of employ-
ment of George Paytas, thereby encouraging membership in the Re-
spondent Union, the Respondent Employer has engaged and is
engaging in unfair labor practices within the meaning of Section 8
(a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act, the Respond-
20 90 NLRB 280 _
21 Crossett Lumber Company , 8 NLRB 440. ; Repubkc Steel Corporation v N L. R B,
311 U. S. 7.
227260-53-vol. 100-99
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent Employer did engage and has continued to engage in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
5. By causing the Respondent Employer to discriminate against an
employee in violation of Section 8 (a) (3) of the Act, the Respondent
Union has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (2) of 'the Act.
6. By restraining and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent Union has en-
gaged and is engaging in unfair labor practices within the meaning
of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
Order
Upon the entire record in this case and pursuant to Section 10 (c) of
the National Labor RelationsAct, the National Labor Relations Board
hereby orders that:
I. The Respondent George-A. Vare and Edwin H. Vare, Jr., doing
business as McCarron Co., Philadelphia, Pennsylvania, their agents,
successors , and assigns, shall :
(a) Cease and desist from:
1. Encouraging membership in International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of America, Local
Union 470, AFL, or in any other union of its employees, by discharg-
ing any of its employees or discriminating in any other manner in
regard to their hire or tenure of employment, or any terms or condi-
tions of their employment, except to the extent authorized by Section
8 (a) (3) of the Act.
2. Interrogating employees concerning union membership, urging
employees to acquire membership in the Respondent Union, or any
other union, or threatening employees with loss of employment unless
they obtain such membership.
3. In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights to engage in or
to refrain from engaging in activities guaranteed them by Section
7 of the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
1. Offer to George Paytas immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to
his seniority or other rights and privileges, and jointly and severally
with the Respondent Union make him whole in the manner set forth
McCARRON CO. 1549
in the section entitled "The Remedy" for any loss of pay suffered by
reason of the discrimination against him.
2. Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel records and
reports, and all other records necessary for a determination of the
amount of back pay due and the right of reinstatement under the terms
of this Order.
3. Post at its place of business in Philadelphia, Pennsylvania, at
such places where notices to employees are customarily posted copies
of the notice attached hereto as Appendix A.22 Copies of said notice,
to be furnished by the Regional Director for the Fourth Region,
after having been duly signed by the Respondent Employer's repre-
sentative, shall be posted immediately upon receipt thereof, and shall
be maintained by Respondent Employer for a period of at least sixty
(60) consecutive days thereafter. Reasonable steps shall be taken by
the Respondent Employer to insure that such notices are not altered,
defaced, or covered by any other material.
4. Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of the Order, what steps it has
taken to comply herewith.
II. The Respondent International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local Union 470,
AFL, its officers, agents, representatives, successors, and assigns, shall :
(a) Cease and desist from :
1. Causing or attempting to cause the Respondent Employer, its
agents, successors, or assigns, to discriminate against its employees in
violation of Section 8 (a) (3) of the Act.
2. Restraining and coercing employees of the Respondent Em-
ployer, its successors or assigns, in the exercise of their right to refrain
from any and all concerted activities guaranteed to them by Section
7 of the Act, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment as authorized by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act.
1. Notify the Respondent Employer in writing that it withdraws
all objections to the employment of George Paytas, and request the
Respondent Employer to offer to him immediate and full reinstate-
ment to his former or substantially equivalent position without preju-
dice to his seniority and other rights and privileges. -
22 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."
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Jointly and severally with Respondent Employer make George
Paytas whole, in the manner set forth above in the section entitled
"The Remedy," for any loss of pay he may have suffered by reason
of the discrimination against him.
3. Post in conspicuous places in its offices in Philadelphia, Penn-
tylvania, where notices to members are customarily posted, copies of
the notice attached hereto and marked "Appendix B." 23 Copies of
said notice, to be furnished by the Regional Director for the Fourth
Region, shall, after being duly signed by an official representative of
the Respondent Union, be posted by it immediately upon receipt
thereof and maintained by it for a period of at least sixty (60) con-
secutive days thereafter. Reasonable steps shall be taken by it to
insure that said notices are not altered, defaced, or covered by any
other material.
4. Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto and marked "Appendix B," for
posting, Respondent Employer willing, at the places where notices
to the Respondent Employer's employees are customarily posted.
Copies of said notice, to be furnished by the Regional Director for
the Fourth Region, shall, after being signed as provided above, be
forthwith returned to the Regional Director for said posting.
5. Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
MEMBER MURDOCK, dissenting :
I am constrained to dissent from the majority's failure to affirm
the Trial Examiner's recommended dismissal of the complaint, because
I believe that Section 10 (b) of the Act requires such dismissal.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in INTERNATIONAL BROTH-
ERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
of AMERICA LOCAL UNION 470, AFL, or in any other labor organi-
zation of our employees, by discriminatorily discharging or sus-
21 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."
McCARRON CO. 1551
pending any of our employees or refusing to hire any applicant
for employment for failure to obtain clearance from that labor
organization, or by discriminating in any other manner in regard
to their hire and tenure of employment, or any term or condition
of employment.
WE WILL NOT interrogate our employees concerning union mem-
bership, urge our employees to acquire membership in INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, LOCAL UNION 470, AFL, or any other
union, or threaten our employees with loss of employment unless
they obtain such membership.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed them by Section 7 of the Act, 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.
WE WILL offer to George Paytas immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to any seniority or other rights and privileges previ-
ously enjoyed, and make him whole for any loss of pay suffered
as a result of the discrimination against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named union or any
other labor organization, except to the extent that this right may
be affected by an agreement in conformity with Section 8 (a) (3)
of the Act.
MCCARRON CO.
Employer.
By -------------------------=--
(Representative ) (Title)
Dated----------------------------
This notice must remain posted for 60 days from the date thereof.
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE
To ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL
UNION 470, AFL, AND TO ALL EMPLOYEES OF MCCARRON CO.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
1552 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
WE WILL NOT cause or attempt to cause MCCARRON CO., its of-
ficers, agents, successors, and assigns, to discharge or otherwise
discriminate against employees in violation of Section 8 (a) (3)
of the Act.
WE WILL NOT restrain or coerce employees of MCCARRON Co., its
successors or assigns, in the exercise of the rights guaranteed in
Section 7 of the Act.
WE WILL notify MCCARRON Co., that we withdraw all objections
to the employment of George Paytas, and we will request Mc-
CARRON Co. to offer to George Paytas immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to his seniority and other rights and privileges.
WE WILL make George Paytas whole for any loss of pay he.may
have suffered because of the discrimination against him.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELP-
ERS, OF AMERICA, LOCAL 470, AFL,
Union.
By -------------------------------- --------------
.(Representative ) ( Title)
Dated ------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
Upon two amended charges' filed on June 12, 1951, by George Paytas, the
General Counsel of the National Labor Relations Board, respectively called
herein the General Counsel and the Board,' by the Regional Director for the
Fourth Region (Philadelphia, Pennsylvania), issued companion complaints
dated June 12, 1951, against McCarron Co, a partnership consisting of George
A. Vare and Edwin H. Vare, Jr ,7 copartners, and Vare Brothers, a partnership
consisting of the same individuals, herein referred to as the Employer, and the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union 470, AFL, herein referred to as the Union. The com-
plaints alleged that the Employer had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and
(3) of the National Labor Relations Act as amended, 61 Stat. 136, hereinafter
called the Act, and that the Union had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (b) (1) (A)
and Section 8 (b) (2) of the Act.
With respect to the unfair labor practices, the complaint against the Union
alleged in substance that, because George Paytas was not a member of the
Union in good standing, the Union had taken the following action against him
during the period April 1 to 28, 1950: (1) Caused the Employer to discriminate
1 The original charges and the amended charges are discussed at length in the body of
this report.
:The representative of the General Counsel at the hearing is also referred to herein as
the General Counsel.
McCARRON CO. 1553
against Paytas with respect to his hours of employment; (2) attempted to cause
the Employer to discriminate against Paytas in the tenure of his employment ;
(3) threatened Paytas with loss of benefits or employment, unless he acquired
membership in good standing in the Union; and (4) on April 28, 1950, caused the
Employer to discriminate against Paytas by terminating his employment.
The complaint against the Employer alleged in substance that, because Paytas
was not a member in good standing in the Union, the Employer had taken
the following action against him during the period April 1 to 28, 1950: (1) Em.
ployed Paytas on a less than full-time basis; (2) interrogated Paytas with
respect to his union membership, urging him to acquire membership in good
standing in the Union, and threatening him with loss of benefits or employment,
unless he acquired membership in good standing in the Union; and (3) on
April 28, 1950, terminated his employment, and since that date had failed and
refused to reinstate him.
Each Respondent filed an answer denying the commission of the unfair labor
practices. On June 12, 1951, by, order of the,, Regional Director for the Fourth
Region, the above-captioned cases were consolidated and a notice of hearing
issued.
Pursuant thereto, a hearing was held at Philadelphia, Pennsylvania, on
August 8-13, 1951, before David F: Doyle, the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner. The General Counsel and Re-
spondent were represented by counsel and the charging party attended in
person. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing'upon the issues was afforded all parties. At
the close of the hearing, the Employer and • the Union both moved to dismiss
the complaints' upon various grounds. These motions are discussed, and one
of the motions is decided in the course of this report. At the close of the hear-
ing, the parties were advised that they might present oral argument, proposed
findings of fact, conclusions of law., and briefs. All the parties have filed briefs
which have been considered.
FINDINGS OF FACT
I. THE BUSINESS INVOLVED; ORIGINAL OWNERSHIP BY CHARLES M'CARRON, PRO-
PRIETOR; M 'CARRON'S DEATH AND SUBSEQUENT OPERATION OF THE BUSINESS BY HIS
ESTATE; THE PURCHASE OF THE BUSINESS BY GEORGE A. VARE AND EDWIN H. VARE,
JR.8
The present case is founded upon charges by, and the testimony of, George
Paytas. Paytas testified that he was hired as a truckdriver by Charles McCar-
ron in the latter part of October 1948 and that immediately upon his employ-
ment, a system of unfair labor practices was instituted against him by Charles
McCarron, which was continued by McCarron's estate, the present Employer, and
the Union.
At the time Paytas was hired , Charles McCarron, as proprietor, operated a
dump truck business in the city of Philadelphia. McCarron owned and operated
a fleet of approximately 14 dump trucks . His business consisted of hauling dirt
or mud from construction jobs where excavations were performed to other jobs
where fill was required , or to a dump. He was almost exclusively occupied In
performing this service for Vare Brothers , a partnership which conducted its
business in the Philadelphia area. At the time Paytas was hired, Otto P.
Becker performed the duties of bookkeeper , manager , and dispatcher for
McCarron.
The facts set forth in this section of the report are undisputed.' -
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vare Brothers, for whom McCarron did practically all his work, is a partner-
ship composed of George A. Vare and Edwin H. Vare, Jr. Vare Brothers is
engaged in the general contracting business , specializing in the aerial and under-
ground installation of electric cable, the erection of line poles, steel towers, and
substations for electric transmission lines, and in laying out conduit for under-
ground electric cables. The partnership performed work for both commercial
and public utility accounts and performed yearly a very substantial amount of
work for the Philadelphia Electric Company.
On August 16, 1949, after Paytas had been employed for approximately 10
months, Charles McCarron died . In his will he named 3 executors, 1 of whom
was Otto P. Becker, the bookkeeper, manager, and dispatcher of his business,
previously referred to. Immediately upon the death of McCarron, his executors
took over the assets of his estate, among which was the dump-truck business,
which they continued to operate, while they offered it for sale as a going concern.
The executors entered into negotiations with several prospective buyers of the
business, but those negotiations did not result in a sale of the business.
During the early part of March 1950, the executors entered into negotiations
with George A Vare and Edwin H. Vare, Jr, for the sale to then' of all the trucks,
equipment, machinery, tools, the real estate in the estate, and the right to use
the name "McCarron" in the operation of'the business formerly conducted by
Charles McCarron. An agreement of sale, covering the aforesaid items between
the executors and the widow of McCarron, and George A. Vare and Edwin H.
Vare, Jr., was entered into on March 10, 1950. A bill of sale dated March 31,
1950, transferred all of the personal property' connected with the hauling busi-
ness of Charles McCarron to Vare Brothers as of that date. By further agree-
ment, the executors of the estate granted to George A. Vare and Edwin H. Vare,
Jr., the right to use the name "McCarron" in the operation of the business form-
erly conducted by Charles McCarron. The employment of Paytas continued
during the period that the business was operated by the estate.
On April 1, 1950, George A. Vare and Edwin H. Vare, Jr., actually took over
the operation and control of the dump-truck business. Thereafter on May 9, 1950,
the real estate on which the business of Charles McCarron was conducted was
conveyed to Vare Brothers.
For the purpose of carrying on the dump-truck business, the Vare Brothers
assumed the name McCarron Co., and duly registered the name with the proper
authorities under the Fictitious Names Act of Pennsylvania. Otto P. Becker
was retained by McCarron Co. in the same position which he had held during
operations by Charles McCarron and the estate.
The employment of Paytas was terminated on April 28, 1950, approximately
28 days after McCarron Co. took possession of the business.
The legal effect of the various changes in ownership on the present case is
discussed at length in another section of this report.
II. THE LABOR ORGANIZATION INVOLVED
It Is admitted by the pleadings , and I find, that International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , Local Union
470, AFL, is a labor organization within the meaning of Section 2, subsection (5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
George Paytas, the charging party, was the principal witness for the General
Counsel. His testimony encompassed the entire period of his employment by
Charles McCarron, McCarron's estate, and McCarron Co. The credibility of
McCARRON CO. 1555
Paytas as a witness has been subjected to severe attacks by Respondents in their
briefs, and not without good reason. Paytas as a witness was his own eager
advocate. Sometimes he misunderstood the question of counsel in his eagerness
to testify ; at other times he disregarded the questions of counsel and volunteered
information ; and at other times he was garrulous, and prone to exaggerate
and expand his testimony. Despite these qualities which ordinarily would
cause a trier-of-the-fact to pause before accepting his testimony, I find in the
light of the entire record that the substance of the testimony of Paytas is accept-
able, especially those portions which are uncontradicted in the record, or are
corroborated by Becker, or appear to be supported by the circumstances sur-
rounding the event.
The only other witness whose testimony encompassed the whole period of
Paytas' employment is Otto P. Becker. He was the supervisor of the garage
where the trucks were kept, and of the office from which McCarron' s business
was conducted when Paytas first went to work for McCarron. He has con-
tinued in substantially the same position up to and including the present.
On many points Becker's testimony corroborated that of Paytas. On some
points it differed, notably as to the discharge of Paytas. On that point I have
accepted the testimony of Paytas for reasons stated later herein.
From the testimony of these two men and certain documentary evidence,'
the pattern of conduct engaged in by the successive employers and the Union
is clearly established.
Paytas testified that in October 1948, he applied to the late Charles McCarron
for a job as a truekdriver. McCarron asked Paytas if he was a member of
the Union. Paytas told him he had formerly been a member of the Union, but
was no longer in good standing, and did not have a union book. McCarron
thereupon instructed Becker to put Paytas to work, and in doing so, called to
the attention of Becker that Paytas had no book. Paytas thereupon entered
his employment with McCarron. The assignment of truckdrivers to daily jobs
was performed by Becker as manager-dispatcher. Each evening Becker posted
on a bulletin board each driver's name, with the number of the truck he was
to drive, and a description of the job he was to perform on the following day.
Paytas soon learned that the other drivers were assigned before him, and that
he received an assignment only after all other drivers had been assigned. In
the course of the employment of Paytas, other drivers were later hired by
McCarron. These men had books and were in good standing with the Union.
They were placed ahead of Paytas on the seniority list, and were assigned jobs
in accordance with this seniority. After all the men with books, even those
employees hired later, were assigned, then Paytas was given an assignment,
if a job was still available . This system of assignment resulted in Paytasi
receiving less than full-time employment, for sometimes there were only enough
assignments for the men with books. In that case, Paytas went home.
Paytas testified that he complained many times to Becker about this method
of assignment, and that he also complained to Larry Dumphy, the union steward
on the job. On each occasion, Becker and the union steward urged Paytas to
straighten himself out with the Union. They pointed out to him that if he
paid his dues and obtained a book, be would take his regular place on the
-seniority list, and that men having books would no longer go ahead of him.
Paytas had formerly been a member of the Union but he had stopped paying
his dues and he had not taken out a withdrawal card as was customary. As
a result, he owed a substantial amount of delinquent dues to the Union . Paytas
* General Counsel Exhibit No. 8-Seniority list of employees. General Counsel Exhibit
No. 9-Hours of work performed by each employee during April 1960.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at this time made contact with officials of the Union to find out the amount of
his delinquent dues, and to arrange for their payment in installments. The
Union informed him of the amount of his delinquent dues, but informed him
that he would have to pay his delinquent dues before he could be reinstated
in good standing. It is apparent that thereafter Paytas assured both the
Union and Becker that he intended to straighten out with the Union, as soon
as he had the full amount of his back dues. On several occasions thereafter,
Paytas renewed his request to the Union to be allowed to pay up his delinquency
by installments. On each occasion the Union's position was the same, that he
would have to pay all back dues before he would be given his book as a member
in good standing. The negotiations on this subject appear to have extended
through all the period of Paytas' employment. Meanwhile, the amount of his
delinquent dues continued to mount with each passing month, and men with
books continued to pass him on the seniority list.
Substantially,. that was the situation when Charles McCarron died on August
1G, 1949. Thereafter, during the period that the business was operated by the
l'lcCarron estate, the same situation continued. Paytas continued to assure
Becker that he was making plans to get his book and he also kept contact with
the Union on the points of how much he owed, and if he could pay the sum
in small installments. As to the installments, it is worthy of note that Paytas
never tendered any part of his delinquent dues to the Union, and that the
Union repeatedly told Paytas that its regulations required that he pay his
delinquent dues in full.
On April 1, 1950, the business was taken over by McCarron Co., the partnership
consisting of George A. Vare and Edwin H. Vare, Jr. Also, at about this time,
Paytas testified that Becker told him if he did not get his union book, there
would no longer be any work for him. Paytas testified that at that time he
made plans to cash some bonds which were the property of his son and to use
the funds to pay his union dues.5
According to Paytas, on April 28, 1950, Becker told him that there would be
no more work for him in view of his failure to acquire union membership. On
that date, Becker gave Paytas his check in full together with a withholding
statement and discharged him. Thereafter he did not report for work."
The testimony of Paytas as to his hiring by McCarron , his disclosure that he
had- no book and the mention of this fact by McCarron to Becker, is undisputed
in the record. Becker, in his testimony, admitted frankly that McCarron and his
estate had an arrangement with the Union whereby union men were given pref-
erence over nonunion men in the assignment of work . This arrangement was
based on seniority ; the union steward on the job setting up the seniority list.,
Becker made assignments in accordance with the list. This arrangement, by
which men with books were assigned before men without books , was of long
standing. Becker testified at one point that he thought this arrangement was
required by virtue of a contract between Charles McCarron and the Union, but
counsel for the parties stipulated that no such provision was contained in any
contract between those parties. Becker denied that he ever urged Paytas to
obtain his union book or that he pointed out the advisability of obtaining his
union book. However , he admitted that Paytas reported to him the results of
6 Paytas testified that at this time he talked to Peter Schultz , president of the Union,
and told him that he was going to go home and get the money and pay up his union dues.
Paytas testified that the president of the Union then told him that he was "done" and
gave Paytas to understand that his delinquent dues would no longer be accepted by the
Union. Schultz , as a witness, categorically denied that he had any such conversation
with Paytas. Schultz testified in a frank and fair manner. He evinced no animosity to
Paytas. 11 credit the testimony of Schultz on this point.
' McCARRON CO. 1557
his efforts to obtain his union book, and that they talked about that subject.
In that posture of the testimony , I credit Paytas ' testimony that Becker urged
him to get his union book, and told him if he did not get his union book, there
would not be work for him . Becker denied that he discharged Paytas . Becker
testified that after April 28, Paytas did not appear for work; that he was carried
on the assignment board for some days and then dropped , and that Paytas
therefore voluntarily quit . On this point , I credit the testimony of Paytas. It
seems to fit the pattern of events more closely than Becker 's version of the inci-
dent . It is not credible that Paytas walked off the job unless he was discharged.
He had been the object of discrimination for a period of approximately 2 years,
but had borne the discrimination and continued his employment . I am con-
vinced that he gave up his part-time employment only when he was discharged.
On this point , it is also worthy of note that Becker testified that ordinarily when
drivers did not show up for work , he oftentimes phoned for them, or sent for
them . When Paytas did not show up for work after April 28, 1950 , Becker made
no effort to contact Paytas , and Paytas never again went back to the garage.
That Paytas was discharged and did not voluntarily quit is proven by a
statement of Becker . After his discharge , Paytas applied for unemployment
compensation . As part of his application , Paytas was required to fill out Form
UC-45. In the space provided for stating the reason for his unemployment,
Paytas wrote "union trouble" ; this form was subsequently sent to the Employer
for verification as to the reason for unemployment . Performing that function
for the Employer , Becker wrote on the form , "Mr. Paytas is unable to secure his
reinstatement in Local 470, Teamsters Union and therefore it is impossible for
us to employ him even though we have work for him ." Becker offered an ex-
planation in regard to his answer on Form UC-45 , but I find this explanation
unsatisfactory. I find that Becker 's statement on Form UC-45 corroborates the
testimony of Paytas and establishes the fact that Paytas was discharged on
April 28, 1950.
Paytas testified that on many occasions Larry Dumphy , union steward at the
garage, urged him to pay up his union dues, and threatened him with the ultimate
loss of his employment if he did not pay them . He also testified that the union
steward was the final authority on the seniority list maintained at the garage,
and that on that list men with books who were hired after him were placed
ahead of him.'
Upon the record as a whole, and upon the basis of the testimony of Paytas,
some portions of which are uncontradicted, some portions of which are corrobo-
rated by Becker, and some portions of which are corroborated by the facts and
circumstances surrounding the event, I find that the Employer by Otto P. Becker,
its manager, (1) interrogated George Paytas with respect to his status as a
member of the Union; (2) urged him to acquire membership in good standing
in the Union; (3) threatened him with loss of employment unless he should
acquire membership in good standing in the Union ; and (4) on or about April
28, 1950, terminated his employment and thereafter refused to reinstate him for
the reason that he was not a member in good standing of the Union.
I find that , because George Paytas was not a member of the Union in good
standing, the Union during the period April 1 to 28 , 1950, threatened him with
loss of benefits or employment unless be acquired membership in good standing
in the Union; caused the Employer to discriminate against Paytas with respect
to his hours of work; and on April 28, 1950, caused the Employer to discharge
Paytas and thereafter refuse to reinstate him.
0 Union Steward Dumphy did not testify.
1558 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
A. Motions to dismiss based on Section 10 (b) of the Act
Both the Employer and the Union moved at the hearing for the dismissal of the
complaint herein because the charge upon which the complaint was based was
not filed within 6 months of the occurrence of the alleged unfair labor practice
as required by Section 10 (b) of the Act. The pertinent section of 10 (b) reads
as follows :
Provided, That no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom such
charge is made, . . .
The General Counsel contends that the charges of August 14, 1950, were
amended by the charges of June 12, 1951, and that these amendments were author-
ized by virtue of many cases interpreting and construing the section.'
The Respondents both urge that the first amended charge is not an amendment
at all but an entirely new charge against a new and different respondent and
that it is not timely filed within the 6-month period prescribed by Section 10 (b).
In considering the motions of the Respondents, the changing ownership of the
business here involved must be kept firmly in mind.
The original charge against the Employer in this case was filed by George
Paytas on August 111, 1950. The Vare Brothers as McCarron Co., had taken over
the business on April 1, 1950, and Paytas was discharged on April 28, 1950. The
original charge alleges that an employer named as "Charles McCarron Co." com-
mitted an unfair labor practice as follows :
The Company, through Otto Becker, refused to hire George Paytas for
a full time job as a truck driver in February and March, 1950, because he
had been unable to get a work permit from Local 470, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL. (Emphasis supplied.)
The original charge against the Union is also dated August 14, 1950. The
basis of this charge is as follows :
The above named union in February and March, 1950, caused or attempted
to cause the Charles McCarron Co., Phila., Pa., to discriminate against
George Paytas in violation of Section 8 (a) subsection (3) in that employ-
ment as a truck driver was denied to him because of his failure to join
the above named union. (Emphasis supplied.)
The two charges were mailed to the address of McCarron Co. and received by
that partnership. A copy of the charge was also mailed to the Union and re-
ceived by it. As to this charge against the employer, three facts are noteworthy :
(1) The Employer is named as Charles McCarron Co. A company so named
never existed. Charles McCarron operated his business as a proprietorship
until his death on August 16, 1949. His executors had continued it as a func-
tion of the estate, in the name of the estate. McCarron Co. came into existence
° Cathey Lumber Co., 80 NLRB 15.7; Rutter-Rem Manufacturing Co., Inc., 86 NLRB
470; Tennessee Knotting Mills, 88 NLRB 1103; Illinois Bell Telephone Co, 88, NLRB 11711;
Globe Wireless, Ltd, 88 NLRB 1262; Stokely Foods, Inc., 91 NLRB 1267; Standard
Oil Company of California (El Segundo Refinery), 91 NLRB 1640; Royal Palm Ice Com-
pany, 92 NLRB 7124; Gaynor News Co., 93 NLRB 299 , Ferro Stamping and Manufacturing
Cc, 93 NLRB 1459; Kansas Milling Co. v. N. L. R B, 185 F 2d 412 (C. A. 10) remanding
on other grounds, 80 NLRB 925; American Shuffleboard Co. v N. L. R. B., 190 F. 2d 898
(C. A 3) enforcing 92 NLRB 1272; N. L. R. B. v Kingston Cake Company, 191 F. 2d
563 (C A. 3) remanding on other grounds 91 NLRB 447.
McCARRON CO. 1559
only when the Vares purchased the business and filed their certificate of doing
business under an assumed name under the laws of Pennsylvania on April 1,
1950. (2) The charge alleges that the named Employer "refused to hire George
Paytas for a full time job as a truck driver in February and March 1950, be-
cause he had been unable to get a work permit from Local 470. . . " In Febru-
ary and March 1950 the business was operated by the executors of Charles
McCarron. Consequently, the acts complained of took place prior to the advent
of McCarron Co. and it is apparent that the unfair labor practices were com-
mitted, if found, by the McCarron Estate.
It is also worthy of note that the charge against labor organization or its
agents specifies that in February and March 1950 the Union "caused or attempted
to cause the Charles McCarron Co., Phila., Pa., to discriminate against George
Paytas in violation of Section 8 (a) subsection (3) in that employment as a
truck driver was denied to him because of his failure to join the above named
union."
It should also be noted that on August 14, 1950, when Paytas filed the two
above charges with the Board, he was no longer employed by McCarron Co,
having been discharged on April 28, 1950. Presumbly at that time, he had full
knowledge of all the unfair labor practices committed against him.
No complaint was ever issued against any Respondent on the basis of the
two charges filed on August 14, 1950. Presumably the Regional Office was
engaged in an investigation of the charges.
On June 12, 1951, Paytas filed a first amended charge against each of the
instant Respondents. On the same date, the Regional Director issued the
complaints and the order by which these cases were consolidated.
The first amended charge against the Employer, one of the charges upon
which the complaint is based, names as the Employer "McCarron Co., a part-
nership consisting of George A. Vare and Edwin H. Vare, Jr., co-partners ; Vare
Brothers, a partnership consisting of George A. Vare and Edwin H. Vare, Jr.,
co-partners."
The first amended charge against Employer gives the basis of the charge
as follows :
McCarron Co, a partnership consisting of George A. Vare and Edwin H.
Vare, Jr., co-partners, through its officers and agents, deprived George Paytas
of full time work from on or about April 1, 1950, to on or about April 28,
1950; .terminated his employment on or about April 28, 1950, has failed and
refused to reinstate him to his former job or to a substantially equivalent
job since April 28, 1950, all because he was not a member of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union 470, AFL, in good standing; by these and other acts,
including questioning of Paytas as to his union affiliation, the urging of
Paytas to join said union, and the threatening loss of benefits or employ-
ment to Paytas unless he should join said union, it interfered with, re-
strained and coerced employees in the exercise of rights guaranteed in
Section 7 of the Act.
Comparison of the first amended charge with the original charge discloses
three grave differences : (1) The original charge undoubtedly charges the
McCarron Estate with the commission of unfair labor practices, because it
specifies the months of February and March 1950, in the body of the charge,
and the estate controlled the operation of the business during those months.
The first amended charge definitely charges a new and different Respondent with
the commission of unfair labor practices. The new Respondent is McCarron
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co., a partnership consisting of George A. Vare and Edwin H. Vare, Jr., co-
partners, and Vare Brothers, a partnership consisting of George A. Vare and
Edwin H. Vare, Jr, copartners. _ (2) The original charge alleged unfair labor
practices committed in February and March 1950, while the first amended
charge alleges unfair labor practices committed in the period April 1, 1950, to
April 28, 1950. (3) In the original charge, the Employer was charged with
not giving Paytas full-time work because he did not have a work permit from,
the Union. The first amended charge charges McCarron Co. and Vare Brothers
with terminating • the employment of Paytas on April 28, 1950, refusing to re-
instate him after that date, with interrogating Paytas as to his union affiliation,
with urging him to join the Union, and with threatening him with the loss of
his employment unless he should join such Union, thereby restraining and co-
ercing its employees in the exercise of rights guaranteed in Section 7 of the Act.
The unfair labor practices alleged in the first amended charge are far wider,
broader, and of a different character than the single allegation contained in
the original charge. The first amended charge contains a group of entirely new
unfair labor practices. -
The first amended charge against the Union is likewise dated June 12, 1951.
Basis of the charge is set forth in this charge as follows :
The above union, through its officers and agents, on and after April 1, 1950,
caused and attempted to cause the McCarron Co., employer of the charging
party, to discriminate against. him in violation'of Section 8 (a) (3), with
respect to his hire, tenure and conditions of employment.
In the first amended charge against labor organization, the name of the labor
organization is substantially the same as in the original charge. However, this
charge also substantially broadens and widens the scope of the unfair labor
practices charged against the Union. In the original charge the unfair labor
practice was set out "that employment as a truck driver was denied him because
of his failure to join the above named union." The first amended charge sets
forth the unfair labor practice in much wider and broader terms.
The original charge alleged that the Union caused or attempted to "cause
Charles McCarron Co. to discriminate . . ." The first amended charge alleges
that the Union caused or attempted to cause "McCarron Co., employer of the
charging party to discriminate ..." This charge alleges an act of unfair
labor practice in collusion with an altogether different employer , and conse-
quently a different act of unfair labor practice. The first amended charge alleges
acts occurring after April 1, 1950, which is the date on which McCarron Co.,
Vare Brothers, took over the business-a time and an employer entirely different
from that alleged in the original charge.
There is no question but that the discriminatory practices set forth in the
complaint were committed between the dates of April 1 to 28, 1950, and that the
first amended charges on which the complaints are based were filed on June 12,
1951. If the amendment was not authorized by virtue of the authorities cited
by the General Counsel , or is a new charge against a new and different employer
and the Union, the unfair labor practice charge has not been timely filed and the
complaint has been issued in violation of Section 10 (b).
I must agree with the Respondents in their contention that the first amended
charge is in reality a new charge and is not an amendment . The original charge
against Employer charges the McCarron Estate with unfair labor practices
committed during the months of February and March 1950. The first amended
charge against Employer charges an entirely new and different employer. It
McCARRON CO. 1561
charges new and substantially different unfair labor practices committed at a
new and different time. Likewise, the first amended charge against the Union
charges that the Union caused, and attempted to cause, a new and different em-
ployer, McCarron Co., to commit unfair labor practices, which are new and
different in nature from those alleged in the original charge, at a time-different
from the time alleged in the original charge.
I have examined the authorities cited by the General Counsel, but I cannot
agree that those cases authorize this alleged amendment of the charge, and the
issuance of these complaints. The gist of the question here is not of a lack of
specificity in a charge which is later amended, nor is-it the addition of, names to
an existent charge, nor is it that the Respondent lias been under a misspelled
name, or in the wrong name, nor is it that McCarron Co. is the- alter ego, sub-
sidiary, or successor of McCarron or his estate. Here, the amendment charges
George A. Vare and Edwin H. Vare, Jr., as McCarron Co. and as -Vare Brothers,
with a whole group of unfair labor practices, for the first time on June 12, 1951,
which were committed April 1 to 28, 1950. If Section 10'(b) is to be given any
meaning as a statute of limitation, it must certainly bar this procedure. I can-
not see how a charge against the McCarron Estate preserves the timeliness of
the charge against the Brothers Vare, especially when the matters charged against
the Brothers Vare are entirely different, and occurred at a time different from the
charges against the McCarron Estate. Here, the General Counsel seeks not to
make a successor employer remedy the unfair labor practice of a predecessor
employer, but seeks to make a new employer remedy his own unfair labor prac-
tices, committed, however, 14 months prior to the filing of a charge against that
employer.
For the reasons stated above, I find that the first amended charges against the
Employer, and the Union, both dated June 12, 1951, are not permissible amend-
ments of the original charges, both dated August 14, 1950, but are in fact and in
law new and different charges involving a new and different respondent, and
that the charges of June 12, 1951, were not timely filed, and that both complaints
herein were issued in violation of Section 10 (b) of the Act. Therefore, I grant
the motions, and recommend that the complaints be dismissed in their entirety.
B. Motions to dismiss because of lack of jurisdiction
Both Respondents moved at the close of the evidence to dismiss the complaints
on the ground that the General Counsel had failed to prove that the operations
of the Employer constituted interstate commerce.
As to these motions, the case is in a peculiar posture. The General Counsel, in
the complaints, alleged facts which he contends are sufficient to show that the
Board has jurisdiction of the Respondents. As to the truth of the facts alleged
in the complaint, the Employer stipulated, but denied, that these facts were
sufficient to show that the Employer was engaged In Interstate commerce. The
Union consistently refused to join in any stipulation as to commerce facts, thus
resting on its answer, in which it denied any knowledge on this subject, and
demanded proof. Thus a question is presented as to the legal effect of the stipu-
lation between the General Counsel and the Employer, in which the Union re-
fused to join.
After the resolution of the above question, there remains a question as to the
sufficiency of the proof on this point.
Since my granting of the Respondents' motion based on Section 10 (b) is dis-
positive of the proceeding , I will not pass on these motions.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAw
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union 470, AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. The complaint herein issued June 12, 1951, charging McCarron Co., a part-
nership consisting of George A. Vare and Edwin H. Vare, Jr., copartners ; and
Vare Brothers, a partnership consisting of George A. Vare and Edwin H. Vare,
Jr., copartners, with the commission of unfair labor practices in violation of
Section 8 (a) (1) and (3) of the Act; and the complaint herein issued June 12,
1951, charging International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local Union 470, AFL, with the commission of
unfair labor practices in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the
Act, were issued in violation of Section 10 (b) of the Act and must, therefore,
be dismissed.
[Recommendations omitted from publication in this volume.]
O