Shipwrecking, Inc.

National Labor Relations Board - Board Decisions

Apr 26, 1962

136 N.L.R.B. 1518 (N.L.R.B. 1962)

1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that Respondent engaged in conduct that constitutes unfair labor
practices and illegally affected the results of the Board -conducted election of
August 2, 1961 , I shall recommend a broad order in the unfair labor practice pro-
ceeding requiring Respondent to refrain from engaging in such conduct and similar
or related conduct and to take certain affirmative action designed to prevent the
recurrence of the conduct engaged in or similar or related conduct, and recommend
an order in the representation proceeding vacating and setting aside the election of
August 2, 1961, and directing a new election at a time appropriate pursuant to the
Board's Decision and Direction of Election dated July 6, 1961 . The broad order in
the unfair labor practice proceeding is warranted by the interrogation , surveillance,
threats, and other intimidation.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Colvert Dairy Products Company is engaged in commerce, and
Local Union 670, International Union of Operating Engineers , AFL-CIO, is a labor
organization ; all within the meaning of the Act.
2. By questioning employees about their feelings for the above Union and their
union activity , and stating to an employee that the employees might lose the benefits
they were enjoying if they selected the above Union as collective-bargaining repre-
sentative , Respondent has engaged in and is engaging in interrogation and threats
violative of Section 8(a)1(1) of the Act, and intimidated or attempted to intimidate
employees in a manner that illegally affected the results of an election conducted by
the Board on August 2, 1961 , in a unit of Respondent's employees.
3. By photographing, or pretending to photograph , or focusing the camera on,
representatives of the above Union while they were engaged in organizational activity
at Respondent 's plant on July 31 and August 2, 1961 , Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the Act , and intimidated
or attempted to intimidate employees in a manner that illegally affected the results
of the above Board election.
4. The aforesaid conduct constituting unfair labor practices and conduct illegally
affecting the results of a Board-conducted election is conduct affecting commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Shipwrecking , Inc. and Industrial Union of Marine & Shipbuild-
ing Workers of America , Local No. 18 and International Hod
Carriers ', Building and Common Laborers ' Union of America,
Local No. 430 , AFL-CIO
International Hod Carriers ', Building and Common Laborers'
Union of America , Local No. 430 , AFL-CIO and Industrial
Union of Marine & Shipbuilding Workers of America, Local
No. 18 and Shipwrecking, Inc. Cases Nos. 15-CA-1943,1.5-CA-
1994, 15-CB-539, and 15-CB-552. April 26, 1962
DECISION AND ORDER
On December 18, 1961, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceedings, finding
that Respondents had engaged in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
136 NLRB No. 131.
SHIPWRECKING, INC. 1519
hereto. Thereafter Respondents, Shipwrecking, Inc., hereinafter re-
ferred to as Shipwrecking, and International Hod Carriers', Building
and Common Laborers' Union of America, Local No. 430, AFL-CIO,
hereinafter referred to as Hod Carriers, filed exceptions to the Inter-
mediate Report and briefs in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers herein to a three-member panel [Chairman
McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the 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, with the following exceptions, addi-
tions, and modifications.'
The record shows that since 1959 and at all times during the 6-
month period preceding the filing of the charge the Respondents
Shipwrecking and Hod Carriers maintained a noncontractual hiring
practice which, in effect, required all employees as a condition of con-
tinued, if not initial, employment to be members of the Union.2 The
Trial Examiner found and we agree that Respondents Shipwrecking
and Hod Carriers by maintaining such a hiring practice violated
Section 8(a) (1), (2), and (3) and Section 8(b) (1) (A) and (2) of
the Act.
In July 1961, Respondents entered into a bargaining agreement
which, like its predecessor, recognized the Union as the exclusive
representative of Shipwrecking's employees. However, at the time
of the execution of that agreement the majority status of the Union
was tainted by the illegal support it had received through the unlaw-
ful hiring practices and no basis exists for concluding that at such
time the Union, in fact, represented an uncoerced majority of the
employees involved. Therefore, we find in agreement with the Trial
Examiner that the Respondent Company and Union by executing,
and thereafter maintaining and enforcing, the 1961 contract violated
1 The Trial Examiner found , and we agree , that Hall's solicitation of employee Nelson
to withdraw charges violated Section 8 ( a) (1). We need not pass upon his further find-
ing that through such conduct Shipwrecking also violated Section 8 ( a) (2), for the Sec-
tion 8 ( a) (1) remedial provisions will provide a full remedy for the unlawful conduct
The Trial Examiner also found that Respondent Union violated Section 8 (b) (1) (A)
by interrogating and threatening certain employees . In absence of exceptions thereto, we
adopt pro forma the Trial Examiner ' s finding
2 Shipwrecking took exception to the Trial Examiner ' s admission into evidence of the
prehearing affidavit of Samuel Shannon , an officer and representative of the Union, and
his reliance upon such affidavit in concluding that it had engaged in unlawful hiring
practices However, as other credible , independent evidence appears in the record show-
ing that Shipwrecking engaged in unlawful hiring practices , as found by the Trial
Examiner , we do not rely on the prehearing affidavit and need not pass upon the above-
noted exception
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a) (1) and (2) and Section 8(b) (1) (A) respectively?
However, as the 1961 contract did not contain any union-security pro-
vision we conclude, contrary to the Trial Examiner, that the Re-
spondents, through the foregoing conduct involving their contract,
did not also respectively violate Section 8 (a) (3) and Section 8 (b) (2).
THE REMEDY
The Trial Examiner recommended that the Respondents reimburse
all present and former employees for moneys unlawfully deducted
from their wages since January 6, 1961, as a result of the "closed
shop" practices in effect at the Company's operations. However, we
do not believe that a reimbursement order is warranted except with
respect to those employees who were actually coerced into paying
moneys to the Union. Accordingly, we shall limit reimbursement to
those employees listed in Appendix C who, the record shows, were
in fact subject to specific coercion and discrimination in the payment
of various union initiation fees and dues.
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 :
A. The Respondent, Shipwrecking, Inc., Chickasaw, Alabama, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Maintaining or giving effect to the current collective-
bargaining agreement with the Respondent Hod Carriers, or to any
extension, renewal, or modification thereof.
(b) Recognizing said labor organization as the representative of
any of its employees for the purposes of dealing with it concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said labor organi-
zation shall have been certified as such representative by the Board.
(c) Assisting or contributing support to the aforesaid or any other
labor organization.
(d) Encouraging membership in the above-named or any other labor
organization by discriminating in regard to hire or tenure of employ-
ment or any term or condition of employment.
(e) Discriminating against employees because of charges filed or
testimony given under the Act.
(f) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Industrial Union of Marine &
See Checker Taxi Company, 131 NLRB 611.
SHIPWRECKING, INC. 1521
Shipbuilding Workers of America, Local No. 18, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold recognition from International Hod
Carriers', Building and Common Laborers' Union of America, Local
No. 430, AFL-CIO, as the representative of its employees for the
purpose of dealing with it concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment,
unless and until the said labor organization shall have been certified
as such representative by the Board.
(b) Offer employee James Nelson immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority and other rights and privileges, and make him whole
for any loss of pay he may have suffered by reason of the discrimina-
tion against him, by payment to him of a sum of money equal to that
which he would normally have earned from the date of the discrimina-
tion against him to the date of the offer of reinstatement, less his net
earnings during said period, said backpay to be computed on a quar-
terly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289.
(c) Jointly and severally with the Respondent Hod Carriers re-
imburse these employees listed in Appendix C, for all fees, dues, assess-
ments, or other moneys unlawfully exacted from they as a condition
of employment, in the manner and to the extent set forth in the section
of this decision entitled "The Remedy," above.
(d) Preserve and, upon request, make available to the 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 to analyze the amounts of backpay due Nelson
and other employees and former employees under the terms of this
Order.
(e) Post at its yard at Chickasaw, Alabama, copies of the notice
attached hereto marked "Appendix A." 4 Copies of the said notice,
to be furnished by the Regional Director for the Fifteenth Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon receipt there-
of, and be maintained for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to its em-
' 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 tha United States Court of Appeals, Enforcing an Order "
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material.
(f) Post at the same places and under the same conditions as set
forth in (e) above, as soon as they are forwarded by the Regional
Director, copies of the Respondent Union's notice herein marked
"Appendix B."
(g) Notify the Regional Director for the Fifteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
B. The Respondent, International Hod Carriers', Building and
Common Laborers' Union of America, Local No. 430, AFL-CIO, its
officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Maintaining or giving effect to its current collective-
bargaining agreement with Respondent Shipwrecking, or to any ex-
tension, renewal, modification, supplement, or other contract with the
said Employer, unless and until Respondent Union shall have been
certified as the exclusive bargaining representative by the Board.
(b) Restraining and coercing employees of the Respondent Ship-
wrecking in the exercise of their Section 7 rights by engaging in un-
lawful interrogation and solicitation of employees to withdraw
charges filed with the Board, or by like or related conduct.
(c) In any other manner restraining or coercing employees in the
exercise of their rights to engage in or refrain from engaging in any
or all of the activities guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with the Respondent Shipwrecking reim-
burse those employees listed in Appendix C, for all fees, dues, assess-
ments, or other moneys unlawfully exacted from them as the price of
their employment, in the manner and to the extent set forth in the
section of this decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all membership dues, rec-
ords, permits, and other records necessary to compute the moneys
illegally exacted from the employees.
(c) Post at its business offices and hiring hall, copies of the notice
attached hereto marked "Appendix B." 5 Copies of said notice, to
be furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent Hod Carriers' representa-
tive, be posted immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places, including
5 See footnote 4, supra.
SH1PWRECKING, INC. 1523
all places where notices to members are customarily posted. Reason-
able steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Post at the same places and under the same conditions as set
forth in ( c) above, and as soon as they are forwarded by the afore-
said Regional Director , copies of the Respondent Shipwrecking's
notices attached hereto marked "Appendix A."
(f) Deliver to the said Regional Director signed copies of "Ap-
pendix B " for posting by the Respondent Employer.
(g) Notify the Regional Director for the Fifteenth Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply therewith.
APPENDIX A
NOTICE TO ALL E31PLOYEES
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 :
AVE WILL NOT give effect to the current collective-bargaining
contract, supplements thereto or modifications thereof, or any
superseding contract with International Hod Carriers', Building
and Common Laborers' Union of America, Local No. 430,
AFL-CIO.
AVE WILL NOT encourage membership in the above- named or in
any other labor organization of our employees, by conditioning
hire upon such membership, or by discriminating in any other
manner in regard to hire, tenure, or any term or condition of
employment.
WE WILL NOT contribute financial or other support to the above-
named labor organization.
EVE WILL withdraw and withhold recognition from the above-
named labor organization , or any successor thereto, unless and
until it shall have demonstrated exclusive majority represnetative
status pursuant to a Board-conducted election among our
employees.
WE WILL NOT give effect to any checkoff cards, heretofore
authorized by our employees , authorizing deductions from the
wages for remittance to the above-named labor organization.
WE WILL NOT discriminate against employees because of charges
filed or testimony given under the Act.
WE WILL NOT interfere with, restrain, or coerce employees or
applicants for employment, in any other manner in the exercise
of their right to self -organization, to form, join , or assist labor
641795-63-vol. 136-9T
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities.
WE WILL offer James Nelson immediate and full reinstatement
to his former or substantially equivalent position, without preju-
dice to his seniority or other rights and privileges.
WE WILL jointly and severally With the above-named labor
organization reimburse employees Louis Andrews, William Allen,
Willie E. Bell, Steve Brown, Hubert M. Doby, Claude Cochran,
Jr., Oscar Gay, Edward E. Green, Felix Whitted, William B.
Tillery, Luther E. Howard, McKellar Coleman, Reese Stoker, and
Jim Nelson for moneys illegally exacted from them, as a condition
of employment, since January 6,1961.
All our employees are free to become, remain, or refrain from be-
coming members of Local 430 of the Hod Carriers' Union, or of any
other labor organization.
SHIPWRECKING, INC.,
Employer.
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.
Employees may communicate directly with the Board' s Regional
Office, T 6024 Federal Building (Loyola), 701 Loyola Avenue, New
Orleans 12, Louisiana, Telephone Number, 529-2411, if they have any
question concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS', BUILDING
AND COMMON LABORERS' UNION OF AMERICA, LOCAL No. 430, AFL-
CIO, AND TO ALL EMPLOYEES OF SHIPWRECKING, INC.
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:
WE WILL NOT give effect to our current collective-bargaining
agreement, or to any other contract covering employees of the
above-named Employer, unless and until we shall have demon-
strated our majority representative status pursuant to a Board-
conducted election among said employees.
WE WILL NOT cause or attempt to cause the above-named Em-
ployer to refuse to hire, to discharge, or to discriminate in
any other manner against employees and applicants for employ-
SHIPWRECKING, INC. 1525
meat in regard to their hire or tenure of employment or any term
or condition of employment.
WE WILL NOT unlawfully interrogate employees, solicit them
to withdraw charges filed under the Act, or in any other manner
restrain or coerce employees, or applicants for employment of the
above-named Employer, in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from any and all such activities.
WE WILL jointly and severally with the above-named Employer
reimburse employees Louis Andrews, William Allen, Willie E.
Bell, Steve Brown, Hubert M. Doby, Claude Cochran, Jr., Oscar
Gay, Edward E. Green, Felix Whitted, William B. Tillery,
Luther E. Howard, McKellar Coleman, Reese Stoker, and Jim
Nelson for moneys illegally exacted from them, as a condition of
employment, since January 6,1961.
INTERNATIONAL HOD CARRIERS', BUILDING AND
COMMON LABORERS' UNION OF AMERICA, Lo-
CAL No. 430, AFL-CIO,
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.
Employees may communicate directly with the Board's Regional
Office T 6024 Federal Building (Loyola), 701 Loyola Avenue, New
Orleans 12, Louisiana, Telephone Number, 529-2411, if they have any
question concerning this notice or compliance with its provisions.
APPENDIX C
Louis Andrews Edward E. Green
William Allen Felix Whitted
Willie E. Bell William B. Tillery
Steve Brown Luther E. Howard
Hubert M. Doby McKellar Coleman
Claude Cochran, Jr. Reese Stoker
Oscar Gay Jim Nelson
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Charges having been filed and served in each of the above-entitled cases; orders
consolidating the cases, complaints, and notices of hearing thereon having been
issued and served by the General Counsel of the National Labor Relations Board,
and answers having been filed by each of the Respondents, a hearing involving alle-
gations of unfair labor practices in violation of Section 8(a)(1), (2), (3), and (4)
and 8(b) (1) (A) and (2) of the National Labor Relations Act, as amended, was
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held in Mobile, Alabama, on November 1, 1961, before the duly designated Trial
Examiner.
At the hearing all parties were repiesented by counsel, and were afforded full
opportunity to present evidence pertinent to the issue, to argue orally, and to file
briefs. Briefs have been received from General Counsel and the Respondents.
On November 24 the Trial Examiner received from General Counsel a motion to
correct the transcript in certain respects. Attached to said motion is a statement of
service upon other parties. No objection to said motion having been received it is
hereby granted and made a part of the record.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
Shipwrecking, Inc., is an Alabama corporation with its principal office and place
of business at Chickasaw, Alabama. It is engaged in the business of salvaging and
selling steel. During 1960 it sold products valued at more than $500,000, and
products valued at more than $50,000 were shipped directly by it to points outside
the State of Alabama.
The Respondents concede and it is found that Shipwrecking, Inc, is an employer
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Hod Carriers', Building and Common Laborers' Union of America,
Local No. 430, AFL-CIO, and Industrial Union of Marine & Shipbuilding Workers
of America, Local No. 18, are labor organizations within the meaning of the Act.
IH. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
All of the issues raised in the complaint stem from a hiring practice and agree-
ment between the employer, Shipwrecking, and the Respondent Union, the Hod
Carriers, and General Counsel's efforts before the hearing to obtain settlement of
the cases against the Employer.
In substance, General Counsel claims that since July 1959, there has continuously
existed a "closed shop" hiring arrangement between the two Respondents; that be-
cause of the "closed shop" practice a written contract entered into by the same
parties in July 1961 is unlawful; that both Respondents unlawfully solicited employee
Nelson to withdraw, and to urge other employees to withdraw, charges filed with
the Board in these cases; and that employee Nelson was unlawfully discharged in
September 1961 because of his failure to obtain such withdrawal and/or because
of his lawful activity on behalf of the Charging Party, Local 18.
B. Relevant facts concerning the hiring practice and current contract
The facts noted in his section are based upon uncontradicted evidence; neither
of the Respondents having called witnesses.
(1) Since July 1959, by successive written agreements, the Respondent Shipwreck-
ing has accorded exclusive bargaining recognition to the Respondent Hod Carriers.
Neither the 1959 nor the 1961 contract contains a valid union-shop clause; both
provide for checkoff of union dues.
(2) Throughout the period from July 1959, up to the time of the hearing, appli-
cants for employment have been required to join the Union and pay fees and dues
in order to obtain or retain employment.
(3) The hiring practice is thus described in an affidavit of Samuel Shannon, an
officer and representative of the Respondent Union, the document being in evidence
as an admission against interest:
All employees hired by the (Respondent) company are either hired through
Local 430, or hired by the company and sent to Local 430 to get a referral slip
and sign the necessary papers for deduction of dues and initiation fees, except
some of the employees are hired by the company and put to work without
coming to Local 430. Whenever employees are put to work by the company
without coming to the union hall, either the company later sends them to
Local 430 to sign up or I go out to the company yard and get these employees
to sign up.
SHIPWRECKING, INC. 1527
Under Article I of Local 430's contract with the company, in the old con-
tract and also the present contract, all employees are required to join the union i
Whenever I find that an employee is working for the company and hasn't
joined the union I bring the matter to the attention of the company representa-
tive or foreman, who in turn advise me that it is an oversight on their part and
also advise me that they will send the man to the union hall to be signed up or
that they are going to lay the man off anyway. The company has never re-
fused to send a man down here to join the union after it has been brought to
their attention that the man was hired without coming through the hall.
When men come to the union hall to see about going to work at the company
I asked [sic] them what kind of work they do, and whether they are burners if
I have an order from the company for burners. I ask the man where he worked
and for his social security number. I get the man to sign an application for
union membership card and an authorization card to deduct union dues and
initiation fees. I give a man a referral slip to give to the company and also tell
him to go by the Chickasaw Infirmary and take a physical exam by Dr. Lange.
Dr. Lange has been the company doctor since Mr. Albritten took over as
General Manager, before that time the employees were given physicals by
Dr. Arnendola in Mobile as arranged by the company.
When a man signs a dues authorization card I usually mail it the same day
he signs it. If a man doesn't make a full week the Company doesn't deduct
money from his check that week but waits until he makes a full week.
(4) Shannon's admissions as to the hiring practice were fully confirmed by many
employee and former employee witnesses, who testified in substance that upon appli-
cation for work at the company premises they were instructed by company officials
and representatives to go first to the "union" to be "written up." The record con-
tains undisputed testimony from some 14 such employees as to events surrounding
their hire or rehire, and the requirement that they join the Respondent Union as a
condition of employment, all such hirings occurring after January 6, 1961, the date
of the beginning of the 6 months' period before the filing of charges.
(5) The testimony of these witnesses is also undisputed that upon their going to
work the amount of their dues and initiation fees was promptly deducted from
their pay.
C. Conclusions as to the hiring practices and contract
Undisputed evidence leads to the conclusion, here made, that since July 1959, and
continuing up to the time of the hearing, an effective "closed shop" hiring arrange-
ment has existed between the two Respondents, and has been maintained and en-
forced, whatever the language of the contracts. The Respondents offered no evi-
dence to establish any exception to the common practice of requiring an application
for employment to join the Respondent Union, and to authorize his dues and initia-
tion fee deduction, as a condition of obtaining such employment.
This practice, clearly unlawful, effectively invalidated the contract entered into
in 1961, since the Union at no time has represented an uncoerced majority of the
employees. Therefore the execution of the 1961 contract was, of itself, an unfair
labor practice within the meaning of Section 8(a)(1), (2), and (3) on the part of
the Respondent Shipwrecking, and within the meaning of Section 8(b)(1)(A) and
(2) on the part of the Respondent Union.2 The closed-shop practices, engaged in
since January 6, 1961, constituted violations of the same sections of the Act.
D. Facts relevant to the discharge of Nelson
The record contains no dispute as to the evidence establishing the following facts:
(1) In August 1961, after the filing of charges, counsel for General Counsel in
these proceedings presented Respondent Shipwrecking's president, William H. Kivette,
in the presence of Shannon, the union representative, a proposed settlement agreement
relating to the issues raised by the charges. This proposal, in written form and in
evidence, listed the names of 12 employees, including that of James Nelson. Upon
the list Kivette himself noted that amount of moneys due to each employee as unlaw-
fully deducted dues and initiation fees.
'Article I of the contracts Shannon refers to reads, "The Company recognizes the
Union as the exclucsive bargaining agent for all of the Company's employees who are en-
gaged, or will be engaged, for the purpose of collective bargaining, as to wages, hours
and working conditions, excluding all supervisory employees as now defined in the Labor
Relations Act of 1947, guards, and those employees engaged in office and clerical capacities "
2 See Checker Taxi Company, 131 NLRI 611.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Early in September Nelson, who in June of the same year had actively assisted
in organizing the employees in the Charging Union, Local 18, was approached by
Superintendent Hall of the Respondent Shipwrecking. Hall produced a list of
names, and told Nelson, "I've got the names of all you guys who filed charges with
the Labor Relations Board." Beside the names were the amounts of money which
Hall said "each was supposed to get back." Nelson's name was on the list. Hall
told him, "Well, if you will withdraw the charges everything will be all right," and
added: "You can go down and see Mr. Shannon. He'll tell you how to do it." Hall
further asked Nelson to see if he could "get the other boys to withdraw their charges."
(3) Nelson went to see Shannon about withdrawing the charges. Shannon com-
mented, "You guys sure made a hell of a mistake and this yard is in a hell of a mess
now," and sent him to see the attorney who appeared for both Respondents in these
proceedings, addmg that "the union was so poor they couldn't hire a lawyer and they
were going to use a company lawyer." The attorney was not in. Nelson explained
his errand to the office secretary. The next day Nelson received from the attorney
certain forms to be filled out.
(4) Nelson took the forms to Hall but told him he had not yet talked to any of
the other ".boys" about withdrawing. Kivette mailed the signed forms to the Board.
(5) On September 18 the Regional Director returned to Nelson the two with-
drawal requests, pointing out that only the Charging Party could request such with-
drawal, and that the charges had been signed by an official of Local 18.
(6) During the morning of September 22, Nelson informed Hall that he had not
as yet approached the "other boys" about getting withdrawal of the charges, and Hall
replied, "Well, it don't make no difference nohow it's all going to be taken care of
anyway." It was promptly "taken care of." That afternoon Hall summarily laid
Nelson off, giving him no reason for this action.
(7) Three days later Nelson asked Kivette the reason for his layoff. Kivette
gave him a slip stating that it was because of "reduction in force." This reason col-
lides with the Respondent's answer, which claims that the employee was "terminated,"
among other things, due to his "inability or unwillingness to perform the work to
which he was assigned." The Respondent Shipwrecking offered no evidence, of any
nature, to support either the statement on the layoff slip or the contention in the
answer.
(8) In August, after the settlement proposal described above, Hall declined to
rehire Reese Stoker, a former employee, in effect telling him that his refusal was
based upon the fact that the company stockholders had said that all those whose
names appeared on the settlement list and who had not already left the Respondent's
employ would "have to go "
E. Conclusions concerning solicitation and the discharge
The allegations of the complaint relating to Nelson are of the "and/or" variety,
claiming as alternative and conjunctive reasons for the discharge discrimination
because of his activities on behalf of Local 18, in violation of Section 8(a)(3), and
retaliation for the charges filed on behalf of Local 18, of which he was a member.
It is noted however, that the complaint does not allege that the Respondent Hod
Carriers caused or attempted to cause the Employer to discriminate against Nelson
in violation of Section 8(a).(3) and thereby itself violated Section 8(b)(2).
The complaint does allege, however, that both Shipwrecking and Hod Carriers
violated the Act (Section 8(a) (1), (2), (3), and (4) and Section 8(b)(1)(A) and
(2), respectively), by soliciting Nelson, before the actual discharge, to withdraw the
charges and persuade other employees to do the same. Determination of this point
will first be made.
It is difficult here to disentangle the joint-or at least intermingled-accountability
of the two Respondents. The relationship between Shipwrecking and Hod Carriers
has been shown to be of a nature seldom revealed by undisputed evidence. The
practice of the employer in delegating its hiring authority to the Union, in instruct-
ing applicants that they must join that union if they wish to work at its yard, in per-
mitting the Union to perform the administrative and employer function of sending
applicants to the "company" doctor, and in sharing with the Union the services of
its own attorney, creates a problem in determining what respect, if at all, the Union
serves as the representative of employees and not as the instrument of the employer.
The collateral question is suggested as to who really controls whom.
As to the events themselves, it is clear that the "solicitation" of Nelson to with-
draw the charges was made by Hall In showing the list to Nelson, upon which
his name appeared, Hall explained that the charges he referred to were "against
us, not against the Union " His assurance to Nelson that if he would withdraw
the charges "everything will be all right" included the plain implication that if he
did not, "everything" would not be all right The later discharge, after Nelson had
SHIPWRECKING, INC. 1529
failed both to have the charges withdrawn and to obtain withdrawals from other
employees, was but the carrying out of the implied threat previously uttered by Hall.
It is therefore concluded and found that Hall's solicitation of Nelson in this matter
constituted interference , restraint , and coercion of employees' rights under Section 7
of the Act, and was violative of Section 8(a)(1).
Since at this time no actual discrimination against Nelson had taken place, the
Trial Examiner is unable to agree that the same solicitation was violative of Section
8(a)(3) or (4).
As to the alleged violation of Section 8(a) (2) -which involves unlawful assistance
to a labor organization-the Trial Examiner concludes that Hall's solicitation was in
fact unlawful assistance . The charge Hall referred to, in Case No. 15-CA-1943,
specifically referred to and placed in issue, among other things, the alleged unlawful
hiring and contractual relationship between the two Respondents . The charge had
placed in jeopardy the Union's continuing receipt of deducted dues and initiation
fees. Thus, Hall, by soliciting Nelson and by sending him to Shannon to effectuate
the withdrawal, clearly gave unlawful aid and assistance to the Respondent Union.
Turning to the Respondent Union 's accountability under the Act.
While it is not shown that Shannon precipitated Hall's move to solicit Nelson's
withdrawal of the charges, it is established that he participated in the actual process
of requesting withdrawal . And in passing it is noted that the only two withdrawal
forms placed in evidence were for Case No. 15-CB-539, the charge against the
Union. The Trial Examiner concludes and finds that the Respondent Hod Carriers,
by participating in the Respondent Shipwrecking's violation of Section 8(a)(1) it-
self violated Section 8(b)(1)(A). But because no actual discrimination had oc-
curred at this time , the facts fail to support a conclusion of 8(b )(2) violation.
As to the discharge itself. The Trial Examiner is convinced and concludes that
the precipitating motive for the discharge of Nelson was the employer 's resentment
of the fact that the employee had failed to effectuate withdrawal of the charges
against it or to obtain withdrawal requests from other employees . The failure of
the Respondent Employer to adduce any evidence to support either of its written
claims-on the layoff slip or its answer-lends added support to General Counsel's
prima facie case. The discharge violated Section 8 ( a)(4) and (1) of the Act.
Since the remedy recommended would be the same , it appears unnecessary here to
discuss the 8(a)(3) involvement of the same discriminatory discharge.
F. Other restraint and coercion
The Trial Examiner finds that the following conduct on the part of the Respond-
ent Union 's representatives , Shannon and Steward Harvey, evidence as to which
is uncontradicted , constitutes restraint and coercion of employees in the exercise
of rights guaranteed them under Section 7 of the Act:
(1) Interrogation by Shannon in June and July 1961 , of employees Andrews,
Wiley, and Johnson as to whether they had signed cards for Local 18, the Charging
Union, and as to who was circulating cards on behalf of that labor organization.
(2) Shannon 's comment to employees Andrews and Wiley to the effect that he
had "got rid of" one employee known to have distributed Local 18 cards and that
another employee 's "days are numbered."
(3) Harvey's interrogation of employees Johnson and Green at about the same
time concerning the identity of those passing out Local 18 cards.
Board precedent for the above conclusion is found in Stokely-Van Camp, Inc., et
al., 130 NLRB 869. Here, moreover , as noted above, the Respondent Union's overt
sharing of an employer 's functions and authority makes such interrogation doubly
offensive and coercive.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III , above, occurring in con-
nection with the operations of the Respondent Shipwrecking described in section I,
above, 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.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, it
will be recommended that they cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
As the Respondents' continued unlawful activities indicate a purpose to defeat
the free self-organization rights of the Respondent Shipwrecking's employees, the
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner is convinced that they are potentially related to other unfair labor
practices proscribed by the Act that the danger of their commission in the future is
to be anticipated from the Respondents' conduct in the past. The preventive pur-
poses of the Act will be thwarted unless the remedy is coextensive with the threat.
Accordingly, in order to make effective the independent guarantees of Section 7 and
thus effectuate the policies of the Act, it will be recommended that the Respondents
cease and desist from in any manner infringing upon the rights of employees guaran-
teed in the Act.
It has been found that the Respondent Employer unlawfully assisted the Re-
spondent Hod Carriers by executing and maintaining the 1961 contract. It will, there-
fore, in accordance with the Board's established policy in such cases, be recommended
that further recognition of the Respondent Union and performance of the agreement
shall be conditioned upon demonstration by the Respondent Union of its exclusive
representative status in a Board-conducted election.
The "closed shop" practices herein revealed fully warrant the remedial provision,
recommended below, that the Respondents jointly and severally make all employees
and former employees whole for moneys unlawfully deducted from their pay since
January 6, 1961, the date 6 months before charges against each were filed.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Hod Carriers', Building and Common Laborers' Union of America,
Local No. 430, AFL-CIO, and Industrial Union of Marine & Shipbuilding Workers
of America, Local No. 18, are labor organizations within the meaning of Section
2(5) of the Act.
2. By executing and maintaining the contract of 1961 the Respondent Ship-
building has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a)(1), (2), and (3) of the Act, and the Respondent Hod Carriers has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act.
3. By requiring, as a condition of obtaining employment, applicants and em-
ployees to join the Respondent Union, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8(a)(1), (2), and
(3) and Section 8(b) (1) (A) and (2) of the Act.
4. By discriminating against employee Nelson because he failed to obtain with-
drawal of charges filed under the Act, the Respondent Shipwrecking his engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (4) and
(1) of the Act.
5. By restraining and coercing employees in the exercise of rights guaranteed by
Section 7 of the Act, the Respondent Hod Carriers has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Marietta Paint and Color Company, a Division of Martin-
Marietta Company 1 and Local Union No. 13589, District 50,
United Mine Workers of America. Case No. 9-CA-2145. April
26, 1962
DECISION AND ORDER
On April 18, 1961, Trial Examiner Earl S. Bellman issued his
Intermediate Report in the above-entitled proceeding, finding that
'After the issuance of the Intermediate Report herein, the Respondent named in the
complaint, American Marietta Company, merged with the Martin Company. Marietta
Paint and Color Company, a division of American Marietta Company, was included in
this merger. The Respondent's motion for substitution of Martin-Marietta Company as
the successor to American Marietta Company in this matter is hereby granted.
136 NLRB No. 130.