Oertel Brewing Co., 530 (1951)

OERTEL BREWING COMPANY AND LOUISVILLE BREWERS ASSOCIATION and DISTRICT No. 27, INTERNATIONAL ASSOCIATION OF MACHINISTS LOUISVILLE BUILDING & CONSTRUCTION TRADES COUNCIL and DISTRICT No. 27, INTERNATIONAL ASSOCIATION OF MACHINISTS FALLS CITIES CARPENTERS DISTRICT COUNCIL OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL and DISTRICT No. 27, INTERNATIONAL ASSOCIATION OF MACHINISTS. Cases Nos.

9-CA-168,9-CB-41, and .9-CB-42. March 1,1951.

Decision and Order On September 29, 1950, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that Respondents Oertel and Carpenters had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that Respondents Association and Council had not engaged in certain other alleged unfair labor practices and recommended dismissal of the complaint as to these Respondents. Thereafter, the General Counsel and Respondents Oertel and Carpenters filed exceptions to the Intermediate Report and supporting briefs.

The Board 1 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the recommendations of the Trial Examiner, with the additions set forth below :

1. The General Counsel has excepted to the Trial Examiner's failure to find that Respondent Council, as well as Respondent Carpenters, caused Respondent Oertel discriminatorily to discharge the four machinists involved herein. The Respondent Council is comprised of various local building trades unions. The General Counsel contends that the Respondent Council became liable for causing the discharges as a result of certain statements made by Hudson, who at the time was president of the Council as well as business representative of Local 369, Electrical Workers, Union, which was a council member, and represented the electricians employed by Respondent Oertel.

   Hudson had participated in discussions with Respondent Oertel relative to the dispute about whether certain equipment installation work ' Pursuant to the provisions of Section 3 (b) of the Act , the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles].

   93 NLRB No. 78.

   should be performed by machinists 2 or by members of the Respondent Carpenters, and the statements in question were made during these discussions. Hudson at no time during these discussions represented himself as speaking on behalf of the Respondent Council, and representatives of Respondent Oertel apparently understood that Hudson was speaking for the Electrical Workers, and not for the Respondent Council. We have considered the entire record in this case and, although the matter is not entirely free from doubt, we are of the opinion that Hudson participated in the discussions as a representative of the Electrical Workers, and that his statements were not made for and cannot be attributed to the Respondent Council. We find therefore, that the Respondent Council did not violate Section 8 (b) (2) of the Act, and accordingly we shall, as did the Trial Examiner, dismiss this allegation of the complaint.

   Order Upon the basis of the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that :

1. Oertel Brewing Company, a corporation, its officers, agents, successors, and assigns, shall :

   (a) Cease and desist from:

   (1) Discouraging membership in District No. 27, International Association of Machinists, or in any other labor organization of its employees, or encouraging membership in Falls Cities Carpenters District Council of the United Brotherhood of Carpenters and Joiners of America, AFL, or in any other labor organization of its employees, by discharging any of its employees or discriminating in any other manner in regard to their hire or tenure of employment or any terms or conditions of employment.

   (2) 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 District No. 27, International Association of Machinists, or any other labor organization, to bargain collectively through representatives of their own choosing, and to ' The Machinists claimed this work on the basis of its contract with Oertel. On June 17, 1948, after an election conducted pursuant to Section 9 (e) (1) of the Act, the Board issued its certification of results authorizing the Machinists to make an agreement requiring membership in the Machinists as a condition of employment . ( Louisville Brewers Association,

   Case No 9-UA-520.) Section 2 of the agreement , set forth in the Intermediate Report, provides that certain work shall be performed 'by qualified employees who are in accord with the articles of this agreement and a part of the' Machinists. However, this clause is concerned with the matter of work jurisdiction and not with the question of union membership. The latter subject is set forth in section 3 of the agreement and provides only that upon request the Machinists will furnish competent help, if possible, and that any person so employed shall within 30' days' become and remain a member in good standing of the Machinists.

   engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, authorized in 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) Post at its plant in Louisville, Kentucky, copies of the notice attached hereto as Appendix A.3 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly, signed by Respondent Oertel's representative, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Oertel to insure that said notices are not altered, defaced, or covered by any other material.

   (2) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith.

2. Falls Cities Carpenters District Council of the United Brotherhood of Carpenters and Joiners of America, AFL, its officers, representatives, and agents, shall :

   (a) Cease and desist from:

   (1) Causing or attempting to cause, by picketing or threatening to picket, Oertel Brewing Company, its officers, agents, successors, or assigns, to discharge or otherwise discriminate against its employees because they are not members of Falls Cities Carpenters District Council of the United Brotherhood of Carpenters and Joiners' of America, AFL, except in accordance with Section 8 (a) (3) of the Act.

   (2) In any other manner causing or attempting to cause Oertel Brewing Company, its officers, agents, successors, or assigns, to discriminate against its employees in violation of Section 8 (a) (3) of the Act.

   (b) Take the following affirmative action which the undersigned finds will effectuate the policies of the Act :

   (1) Post at its offices, if any, at Louisville, Kentucky, and wherever notices to its members are customarily posted, copies of the notice attached hereto as Appendix B 4 Copies of said notice, to be fur' In the event this Order is enforced by a United States Court of Appeals , there shall be inserted before the words 'A Decision anal Order ,' the words, 'A Decree of the United States Court of Appeals Enforcing ' 4In the event this Order is enforced by a United States Court of Appeals, there shall be inserted before the words 'A Decision and Order ,' the words, 'A Decree of the United States Court of Appeals Enforcing.' nished by the Regional Director for the Ninth Region, shall, after being duly signed by said Union's representatives, be posted by it immediately upon receipt thereof, and be maintained by it for -a period of at least sixty (60) consecutive days thereafter, in conspicuous places, including places where notices are customarily posted.

   Reasonable steps shall be taken by said Union to insure that such notices are not altered, defaced, or covered by any other material.

   (2) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith.

3. Oertel Brewing Company, its officers, agents, successors, and assigns, and Falls Cities Carpenters District Council of the United Brotherhood of Carpenters and Joiners of America, AFL, its officers, representatives, and agents, shall jointly and severally make whole Robert L. Crutcher, James W. Douglas, Ralph W. Ohlman, and R. G.

   Thompson for any loss of pay each may have suffered because of the discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages from July 6, 1949, the date he was discriminatorily discharged, to the date of the completion of the installation of the machinery at Respondent Oertel's project in Louisville, Kentucky, less his net earnings during said period.5

   AND IT Is FURTHER ORDERED that the complaint be, and it hereby is, dismissed as to Louisville Brewers Association and Louisville Building & Construction Trades Council.

   APPENDIX A

   NOTICE...