Local 271 of the Int'l Association of Machinists, 426 (1958)

Local 271 of the International Association of Machinists, AFLCIO [Hardie-Tynes Manufacturing Company] and J. W. Chaney John West, An Agent of Local 271, International Association of Machinists, AFL-CIO and J. W. Chaney Lloyd C. Bradley, An Agent of Local 271, International Association of Machinists, AFL-CIO and J. W. Chaney Local 271 of the International Association of Machinists, AFLCIO and Dan M. Jones Lloyd C. Bradley, An Agent of Local 271, International Association of Machinists, AFL-CIO and Dan M. Jones John West, An Agent of Local 271, International Association of Machinists, AFL-CIO and Dan M. Jones Local 271, International Association of Machinists , AFL-CIO and Paul Schnader John West, An Agent of Local 271, International Association of Machinists, AFL-CIO and Paul Schnader Lloyd C. Bradley, An Agent of Local 271, International Association of Machinists, AFL-CIO and Paul Schnader. Cases Nos.

10-CB-643, 10-CB-644, 10-CB-645, 10-CB-646, 10-CB-647, 10CB-648, 10-CB-649, 10-CB-650, and 10-CB-651. March 06, 1959 DECISION AND ORDER

On April 25, 1958, Trial Examiner Louis Plost issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. 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 Intermediate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings and conclusions of the Trial Examiner only to the extent consistent with our decision herein.

The Trial Examiner found that the Respondents did not violate Section 8(b) (2) and (1) (A) of the Act by attempting to cause the Company to discharge the three complainants 1 herein. We disagree, for the following reasons :

1 Schnader, Chaney, and Jones.

123 NLRB No. 41.

LOCAL 271 OF THE INT'L ASSOCIATION OF MACHINISTS 427

1. During the period material herein, the Company and the Re=spondent Union had a contract which required maintenance of membership in good standing for those employees who voluntarily .joined the Union. The bylaws of the Union provided that a member who held two jobs would be subject to having charges filed against him and the Union could take such action as it thought fit.

   The three complainants, at the time of the incident herein, were employed by the Company and each also held another job. They were members of the Union. On December 12, 1957, the three were called to a company office where the latter's president, Stobert, and West and Bradley, business representatives of the Respondent Union, among others, were present.

   The three complainants, who were credited by the Trial Examiner, testified, inter alia, that Business Representative West told Company President Stobert that the contract required maintenance of membership in good standing and that, as the complainants had violated the Union's bylaws, the Company would have to discharge them.

   They further testified that President Stobert stated that he did not read the contract that way and that before he would take any action against the three employees, the contract would have to spell out such a rquirement in no uncertain terms. West's response, according to the complainants, was to threaten Stobert with labor trouble if he did not comply.2

   Business Representative West testified 3 that he had made a verbal agreement with the Company that the latter would make, and post, a rule prohibiting the holding of other jobs by its employees on pain of discharge. He further testified that he asked the Company to discharge the three complainants, but that such request was made pursuant to the verbal agreement and not the written contract and the Union's bylaws. In partial agreement, the three complainants testified that West, in addition to requesting their discharge pursuant to the contract, also asked for their termination pursuant to this alleged verbal agreement, but that President Stobert denied making any such agreement, and refused to discharge them.

   After the above discussion had taken place, the meeting terminated. The three complainants, at the time of the hearing, were still employed by the Company and were also working for other employers. The Respondents apparently have made no further attempts to get the Company to take action against them.

   2 Although the Trial Examiner credits the testimony of the three complainants , and sets forth part of their testimony in the Intermediate Report, he omits from the report their testimony that west actually requested the Company to discharge them. Instead, the import of that part of their testimony set forth in the Intermediate Report (excepting perhaps Jones' testimony) is that west -merely made a conditional request for their discharge, if they should lose their good standing in the Union.

   I The parties stipulated that three other witnesses would testify to the sane effect as west.

   On this state of facts, the Trial Examiner found no violation of the Act. Although his rationale is not clear, he apparently believed that in order to find a violation herein, it was necessary to show actual discrimination.4 Obviously, it is also a violation of Section 8(b) (2) and (1) (A) of the Act to attempt to cause discrimination, which occurred here.

   It is clear that the parties' written contract does not provide that employees be discharged if they hold two jobs, but merely provides for maintenance of membership in good standing. Under such circumstances, the Respondents could lawfully seek to have the Company terminate the employment of the three complainants, pursuant to that contract, only if they had not paid their initiation fees and dues. We find, therefore, that, as West's demand for their discharge was based at least in part on the written contract, and was predicated on their failure to perform an obligation of union membership other than the payment of dues and initiation fees, the Respondents violated Section 8(b) (2) and (1) (A) of the Act.5

2. Although the Intermediate Report is not clear, it seems that one reason why the Trial Examiner found no violation herein was because he apparently felt that, as a practical matter, no real harm had been done. The Trial Examiner characterized the Respondents' actions as 'nothing other than the letting off of steam' and he found that 'no one was hurt as the result of the alleged verbal explosion.' However, the Respondents did attempt to cause the discharge of the three complainants on the above occasion. Therefore, a complaint having been issued and the case brought for hearing before the Trial Examiner, he erred in not finding that the Respondents had violated the Act.

   We must, nevertheless, confess to a certain sympathy with this view of the Trial Examiner. As set forth above, the Company refused to comply with the Respondents' demand that it take action against the complainants; this incident has not been repeated; and the affair has apparently blown over and been forgotten. However, as it violation of the Act has occurred herein, we shall provide a remedial order.

   THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE

   The activities of the Respondents, as set forth above, which have been found to constitute unfair labor practices, occurring in connec4It also seems that the Trial Examiner found no violation for another reason which we shall discuss later in the text.

   b In view of our finding of a violation because of West's demand pursuant to the written contract, we find it unnecessary to, and we do not, pass upon the question whether the parties had the verbal agreement alleged by West. The Trial Examiner apparently found that the parties had no such agreement. Cf. Daugherty Company, Inc., 112 NLRB 98T;

   International Longshoremen's and Warehousemen's Union, Local No. 10, Independent ( Pacific Maritime Association ), 121 NLRB 938.

   LOCAL 271 OF THE INT'L ASSOCIATION OF MACHINISTS 429 t.ion with the operations of the Company involved herein, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.

   THE REMEDY

   Having found that the Respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act.

   ORDER

   Upon the entire record in these cases and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 271 of the International Association of Machinists, AFL-CIO, its officers, representatives, successors, assigns, and agents, including the Respondents John West and Lloyd C. Bradley, shall:

1. Cease and desist from :

   (a) Attempting to cause Hardie-Tynes Manufacturing Company, or any other employer, to discriminate against J. W. Chaney, Dan M. Jones, and Paul Schnader, or any other employee, in violation of Section 8(a) (3) of the Act or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.

   (b) In any like or related manner restraining or coercing employees of Hardie-Tynes Manufacturing Company, or any other employer, in the exercise of their rights guaranteed in Section 7 of the Act, except to the extend that such rights may be affected by an agreement requiring membership in a labor organization as a...