Warehouse & Distribution Workers' Union Local 207, 342 (1957)

342 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD Charles Carter, Carson Goff, Charles Presswood, Vernon Ridner, James Thomas, and Augustus Watson. It is further found that by these layoffs and by its failure and refusal to reinstate said employees, the Respondent discriminated in respect to hire and tenure of employment of employees, discouraged membership in the Union, and interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act.

4. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in, connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.

5. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom, and take certain affirmative and remedial action designed to effectuate the policies of the Act.

   It will be recommended that the Respondent offer Matthew Heeger, Clarence Buck, Charles Carter, Carson Goff, Charles Presswood, Vernon Ridner, James Thomas, and Augustus Watson immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges, and make them whole for any wage losses incurred as a result of the discrimination against them, in accordance with the Board's usual remedial policies.

   Whether the eight employees would be presently employed if the Respondent had followed nondiscriminatory reduction-in-force policies, and if not for how long they would have continued to be employed by the Respondent nondiscriminatorily, are questions to be determined at the compliance stage of proceedings-if the parties are unable to reach agreement thereon. See J. S. Brown, et at., 115 NLRB 594; cf.

   East Texas Steel Castings Company, Inc., 116 NLRB 1336. Provision is made for the reinstatement of Ridner because it is not clear whether his rehiring included restoration of all his rights and privileges.

   Upon the basis of the foregoing findings of fact, and the entire record in the case,

   I make the following:

   CONCLUSIONS OF LAW

   1. Local No. 183, International Association of Sheet Metal Workers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act.

   2. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.

   3. By discriminating in regard to the hire and tenure of employment of the employees named above, and discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.

   4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act.

   5. The Respondent did not engage in surveillance of the union meeting of January 23, 1956.

      (Recommendations omitted from publication.] Warehouse & Distribution Workers' Union Local 207 of the International Longshoremen's and Warehousemen's Union and Mitchell Pierce Waterway Terminals Corporation and Mitchell Pierce. Cases Nos. 15-CB-160 and 15-CA-888. June26,1957 DECISION AND ORDER

      On October 8, 1956, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding finding that the 118 NLRB No. 52.

      WAREHOUSE & DISTRIBUTION WORKERS' UNION LOCAL 2.07 343

      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.

      Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Murdock and Rodgers].

      The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case sand hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith.

      The Trial Examiner found that the Respondent Company did not violate Section 8 (a) (3) and (1) of the Act by denying employment at the Galvez Street wharf to Mitchell Pierce, the Charging Party, and 9 other employees named in the complaint, and that the Respondent Union did not violate Section 8 (b) (2) and (1) (A) of the Act by causing the Company to deny such employment. In so doing, the Trial Examiner found that the reason the Union opposed the employment of the Harahan employees was not their previous refusal to join in the Union's strike against the Company but rather the Company's failure to comply with its alleged contractual obligation to notify employees who had seniority at the Galvez Street wharf of the existence of work opportunities there. He therefore concluded that the denial of employment was not such discrimination which encouraged union membership within the meaning of the Act. As the evidence persuades us that the employees in question were not hired by the Company at the demand of the Union because of their prior refusal to support the Union's strike, we find, in disagreement with the Trial Examiner, that the Company and the Union respectively violated Section 8 (a) (3) and (1) and Section 8 (b) (2) and (1) (A) of the Act.

      It is undisputed that the Respondent Union, which was the bargaining representative of the Respondent Company's employees at the Galvez Street wharf, had a dispute with the Company over the use of certain pallets and called the Galvez Street employees out on strike.

      To make this strike more effective, the Union, which also `represented the Company's employees at its Harahan warehouse, requested the Harahan employees to join in the walkout.' This they refused to I Contrary to the Trial Examiner's assertion , there is no testimony in the record denying that Union President Nelson requested the Harahan employees to walk out in sympathy with the Galvez Street employees. General Counsel 's witnesses Mitchell Pierce, Edward Thigpen, and Henry Bryant testified that Nelson made such request. Sheppard , the Respondent Union's committeeman , testified in effect that he did not participate in the condo.2 About 2 weeks later, the strike ended and the Galvez Street employees returned to work. To assist in cleaning up the accumulation of work that resulted from the strike, the Company assigned the 10

      Harahan employees involved herein to work temporarily at the Galvez Street wharf. On November 30 these employees reported at the shapeup and were denied employment because of the Union's objection, although jobs were concededly available.3 No reason was given a the time by the Union for its objection other than the men would not work with the Harahan employees, and no questions were asked by the Company.

      Although the Union's explanation given at the hearing for its opposition to the employment of Harahan employees is not too clear, it seems to rely on its interpretation of its contract with the Company that no Harahan employees could be hired unless the Company first gave notice of job openings to all employees appearing on the seniority list for the Galvez Street operation, even though they had not appeared at any shapeup in a year or more. The Company, on the other hand, states that it yielded to the Union's demands only to avoid another strike.

      In our opinion, the evidence convincingly establishes that the Union's asserted reason for the discrimination against the Harahan employees is a mere pretext for its true motivation, which was to penalize these employees for exercising their statutory right to refrain from supporting the Union's strike at Galvez Street wharf.

      Not only does there appear to be no reasonable basis in the contract for the Union's ostensible interpretation of the notice requirement,' but actually the custom and practice of hiring at the time of the incident was to the contrary. The record discloses that before November 30, Harahan employees were eligible for employment at the Galvez Street wharf and were in fact hired after Galvez Street employees who appeared for jobs were first hired. However, there never was any additional requirement to the hiring of Harahan employees that Galvez Street employees who did not appear at the shapeup first versation between Nelson and Brown ( union vice president and committeeman) on the one hand and the Harahan employees on the other. Brown denied that he had asked the employees to go out on 'strike' maintaining that there had been no 'strike', at Galvez Street but simply a 'labor dispute.' Brown testified that he did not remember if Nelson had asked the employees to do anything. Nelson, although present at the hearing, did not testify.

      9 Contrary to the Trial Examiner ' s finding, the fact that the Union did not insist on the Harahan employees joining the strike, after its efforts to persuade them to join the strike failed, does not necessarily establish that the Union approved the decision of the Harahan employees or that the Union did not thereafter take retaliatory .measures against them for the uncooperative conduct.

      3 It is undisputed that Blanchard , the Company ' s foreman at Galvez Street, instructed the Company's timekeeper to hire all employees who appeared at the shapeup on November 30.

      4 Section 3 (b) of article IV of the contract reads...