Austin Co.

National Labor Relations Board - Board Decisions

Dec 22, 1952

101 N.L.R.B. 1257 (N.L.R.B. 1952)

AUSTIN COMPANY 1257
A. SIEGEL & SONS and LOCAL 80-A, PACKINGHOUSE WORKERS, CIO,
PETITIONER . Case No. 4-RC-1636. December 19,1952
Order
On November 21, 1952, following the conviction of Anthony Valen-
tino, in a United States district court, for having previously made
false statements in a non-Communist affidavit filed with the Board
under Section 9 (h) of the Act, the Board issued and sent to all parties
a notice to show cause, returnable on or before December 1, 1952,
why its certification of August 11, 1952, issued in the above-entitled
proceeding, should not be revoked for abuse of its processes.
Upon request of the Union, an enlargement of time in which to
answer was granted to all parties. The Union filed a brief in response
and requested opportunity to be heard and to present the facts and the
position of the Union to the Board. Pursuant to notice to all parties,
the Board heard oral argument on December 16,1952. The Union and
the C. I. 0., which was permitted to intervene and file a brief, partici-
pated in the argument. The A. F. of L. was permitted to, and did,
file a brief. The Employer did not reply or participate in the
argument.
The Board having duly considered the response, briefs, and argu-
ments, concludes that, in the interest of protecting its own processes
from further abuse, its certification of August 11, 1952, should be con-
sidered of no further force and effect.
Now THEREFORE said certification is adjudged and declared to be of
no further force and effect.
By direction of the Board :
OGDEN W. FIELDS,
Executive Secretary.
1 Member Houston did not participate in this matter because of his absence from official
duty due to illness.
101 NLRB No. 228.
AUSTIN COMPANY and Louis C. LINKER
LABORERS AND HOD CARRIERS UNION LOCAL No . 300 and Louis C.
LINKER . Cases Nos. 21-CA-1037 and 21-CB-335. December 22,
195°
Decision and Order
On February 4, 1952, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding that
each of the Respondents had engaged in and was engaging in certain
unfair labor practices, and recommending that each of them cease and
101 NLRB No. 197.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
both of the Respondents filed exceptions to the Intermediate Report
and supporting briefs.
Oral argument was heard by the Board on October 9, 1952; the
General Counsel, Austin, and Local 300 participated.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications noted below.
We agree with the Trial Examiner's finding that Austin committed
,in unfair labor practice in having the three Pinkerton guards removed
from its construction project. As set forth more fully in the Inter-
mediate Report, Austin, a general construction firm, contracted with
Pinkerton to supply guards for Austin's large construction project in
Los Angeles. Local 300, which represented the large group of con-
struction employees on the job, voiced to Austin its objection to the
presence of the guards on the project because they were not members
of Local 300. In consequence of this complaint, Austin and Pinker-
ton canceled their contract ; the guards were thereupon removed from
the Austin job, and Austin made other arrangements for guard
service. The contract between Austin and Pinkerton provided that
"Guards not acceptable to the Contractor and/or owner shall be re-
moved and replaced by an acceptable guard immediately upon notifi-
cation." Apart from this right reserved in the contract to remove
any nonacceptable guard, there is no other evidence that Austin exer-
cised any control over the guards, who were assigned, directed, and
paid entirely by Pinkerton.
Austin's defense rests squarely on the assertion that an employer
cannot violate Section 8 (a) (3) of the Act except with respect to its
own employees, and as these guards were employees of Pinkerton,
no violation can be found against Austin. At oral argument, it con-
tended that the guards were independent contractors with relation to
Austin because they dealt with Austin only through Pinkerton. We
view his latter assertion as but a restatement of Austin's basic
argument.
It is evident, as the Trial Examiner found, and as the General
Counsel concedes, that these guards were not employees of Austin.
However, Austin's defense, grounded on this fact alone, finds no
statutory support. Rather, the statute, read literally, precludes any
employer from discriminating with respect to any employee, for
Section 8 (a) (3) does not limit its prohibitions to acts of an employer
AUSTIN COMPANY 1259
vis-a-vis his own employees. Significantly, other sections of the Act
do limit their coverage to employees of a particular employer. Thus,
Section 8 (a) (5) makes it an unfair labor practice for an employer
"to refuse to bargain collectively with the representative of his
employees . . ." and Section 8 (b) (4) (B) prohibits a labor organi-
zation from striking to force or require any other employer to recog-
nize the labor organization "as the representative of his employees..."
[emphasis supplied]. Thus, the omission of qualifying language in
Section 8 (a) (3) cannot be called accidental. Moreover, Section 2
(3), in defining the term "employee," provides that the term
"... shall not be limited to the employees of a particular employer,
unless the Act explicitly states otherwise . . ." The statutory lan-
guage therefore clearly manifests a congressional intent not to delimit
the scope of Section 8 (a) (3) in the manner urged here by Respondent
Austin."
Notwithstanding the absence of a direct employer-employee
relationship between Austin and the guards, the association between
Austin and Pinkerton had an intimate business character. Their
community of interests, as employers, is emphasized by the recog-
nition in their contract of Austin's right to remove the guards. We
cannot say, as did the Trial Examiner, that Austin had no control
over the guards, for, together with Pinkerton, Austin held a veto
power over a most significant aspect of their employment, the right
to work at the Austin project, which Pinkerton would normally have.
Added to this clear picture is the equally clear fact that Austin exer-
cised its control at the behest of Local 300, and only in order to quiet
that union's dissatisfaction with the guards' particular union affilia-
tion. That Austin thereby discriminated in regard to the guards'
"tenure of employment" to encourage membership in Local 300 is
inescapable. On these facts, therefore, and on the record as a whole,
we find, like the Trial Examiner, that Austin violated Section 8 (a) (3)
and 8 (a) (1) of the Act by having the guards, Spohr, Linker, and
Schuler, removed from its construction project.
In reaching this conclusion in the case here presented, we deem it
unnecessary to delineate the extent of the area in which a respondent
employer's conduct may violate the prohibition of Section 8 (a) (3)
a The Supreme Court , in different factual situations , has recognized, and attached great
weight to, this lack of delimiting language in Section 8 (a) (3). In N. L. R. B. v. Hearst
Publications , Inc, et at., 322 U. S. 111, that Court said , "Congress . . . was not thinking
solely of the immediate technical relation of employer and employee . It had in mind at
least some other persons than those standing in the proximate legal ;elation of employee
to the particular employer involved in the labor dispute." And in Phelps Dodge Corp. v.
N. L. R. B ., 313 U. S. 177 , the Court said, "The broad definition of 'employee ,' `unless the
Act explicitly states othewise ,' . . . expressed the conviction of Congress 'that disputes
may arise regardless of whether the disputants stand in the proximate relation of employer
and employee . . . '
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
despite the absence of a direct employer-employee relationship or a
measure of association with the direct employer. Therefore, although
we agree with the Trial Examiner's conclusion, we do not adopt his
broad rationale to the effect that conduct of any employer which
results in coercion of any employee necessarily constitutes an unfair
labor practice.
2. Unlike the Trial Examiner, we are of the opinion that Austin's
letter of March 15, offering to employ the guards at its project "as
per terms of your former employment," constituted an offer of rein-
statement to them. We shall not, therefore, order the guards rein-
stated, and shall award them back pay only from the date of their
removal from the project to March 15, 1951, the date of Austin's offer.
The Respondents also argue that because it does not appear that the
guards were severed from Pinkerton's payroll, no back pay should be
awarded at all. For aught that the record shows, it may well be that
the guards never ceased work, for apparently they continued in
Pinkerton's employ after being transferred from the Austin project.
It is equally possible, as the Trial Examiner states, that Pinkerton's
needs for guards having pro tanto diminished by the loss of the Austin
contract, the earnings of Spohr, Linker, and Schuler may have been
adversely affected. On the record as made we cannot finally decide
this question now. Accordingly, we shall leave to the compliance
stages of this proceeding the question of whether or not the guards are
to receive any back pay in order to be made whole under our Order.
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. Respondent Austin Company, Los Angeles, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Encouraging membership in Laborers and Hod Carriers Union,
Local No. 300, or in any other labor organization, by discriminating
in regard to terms or conditions of employment at any of its projects
in the Los Angeles area except in the manner permitted by Section
8 (a) (3) of the Act.
(b) In any like or similar manner interfering with, restraining,
or coercing employees in the exercise of their rights under Section 7
of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Notify Pinkerton's National Detective Agency, Inc., Los Ange-
les, California, that it does not object to the assignment of guards to
AUSTIN COMPANY 1261
its projects who are not members of Laborers and Hod Carriers
Union, Local No. 300.
(b) Post at its projects in the Los Angeles, California, area, copies
of the notice attached hereto and marked "Appendix A." 2 Copies of
said notice, to be furnished by the Regional Director for the Twenty-
first Region, shall, after being duly signed by a representative of
Austin, be posted 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 to insure that such notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Twenty-first Region,
in writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
B. Respondent Laborers and Hod Carriers Union, Local No. 300,
its officers, representatives, and agents, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Austin Company, Los Angeles,
California, to discriminate in regard to terms or conditions of em-
ployment, except in the manner permitted by Section 8 (a) (3) of
the Act.
(b) Restraining or coercing employees in the exercise of their
rights under Section 7 of the Act to engage in or refrain from engag-
ing in any or all the concerted activities therein listed.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Notify Austin Company, Los Angeles, California, in writing,
that it has no objections, based upon considerations of union member-
ship or nonmembership, to the assignment by Pinkerton's National
Detective Agency, Inc., of any guards to any of the projects of Austin
Company.
(b) Post at its business offices in the Los Angeles area copies of
the notice attached hereto and marked "Appendix B." 3 Copies of
said notice, to be furnished by the Regional Director for the Twenty-
first Region, shall, after being duly signed by a representative of Local
300, 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 members are customarily posted.
Reasonable steps shall be taken to insure that such notices are not
altered, defaced, or covered by any other material.
In the event that this Order is enforced by decree of 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."
0 See footnote 2.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Additional copies of Appendix B, to be furnished by the said
Regional Director, shall be signed by a representative of Local 300
and forthwith returned to the Regional Director for posting, Austin
and Pinkerton willing, on the bulletin boards of each where notices
to employees are customarily posted.
(d) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
C. The Respondents, Austin Company, Los Angeles, California,
and Laborers and Hod Carriers Union, Local No. 300, and their offi-
cers, representatives, successors, agents, and assigns, shall jointly and
severally, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy," make whole Herman Spohr, Louis C.
Linker, and William Schuler for any loss of pay each of them may
have suffered as a result of the discrimination against him from tha
date of such discrimination to March 15, 1951, the date of Austin's
offer to reinstate them.
MEMBER MuRDOCK took no part in the consideration of the above
Decision and Order.
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 you that:
WE wll.i. NOT encourage membership in LABORERS AND HOD
CARRIERS UNION, LOCAL No. 300, or in any other labor organization
by requiring guards furnished to us by Pinkerton's National
Detective Agency, Inc., to be members of or approved by that
labor organization.
WE Do NOT object to the assignment of guards by Pinkerton's
National Detective Agency, Inc., for duty on our projects in the
Los Angeles area who are not members of LABORERS AND HOD
CARRIERS UNION, LOCAL No. 300 and we will make HERMAN SPOHR,
LOUIS C. LINKER, and WILLIAM SCHULER whole for any loss of
earnings caused by the discrimination against them.
WE WILL NOT, by means of contract cancellation or in any like
or related manner, interfere with, restrain, or coerce employees
in the exercise of rights guaranteed them in Section 7 of the Act.
AUSTIN COMPANY,
Employer.
Dated -------------------- By ---------------------------
(Representative ) (Title)
AUSTIN COMPANY 1263
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF LABORERS AND HOD CARRIERS UNION, LOCAL
No. 300, AND TO ALL EMPLOYEES OF AUSTIN COMPANY AND PINKER-
TON 's NATIONAL DETECTIv1 AGENCY, 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 cause or attempt to cause AUSTIN COMPANY, its
officers , agents, successors, or assigns, to refuse to permit assign-
ment of guards to projects of that company by Pinkerton's
National Detective Agency, Inc.
WE WILL NOT, in any like or similar manner, restrain, or coerce
employees in the exercise of rights guaranteed by Section 7 of
the Act.
WE WILL withdraw any objection to the assignment by PINK-
ERTON'S NATIONAL DETECTIVE AGENCY, INC., of Herman Spohr,
Louis C. Linker, and William Schuler, as guards to any project
of AUSTIN COMPANY and we will make them whole for any loss
of pay suffered as a result of the discrimination against them.
LABORERS AND HOD CARRIERS
UNION, LOCAL No. 300,
Labor Organization-
Dated -------------------- By ------------------------------
(Representative ) (Titav)
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 and Recommended Order
STATEMENT OF THE CASE
Upon separate charges duly filed by Louis C. Linker, an individual, against
Austin Company, herein called Austin, and against Laborers and Hod Carriers
Union, Local No. 300, herein called Local 300, the General Counsel of the
National Labor Relations Board, herein called, respectively, the General Counsel
and the Board, caused the cases to be consolidated and issued a complaint dated
December 12, 1951, against Austin and Local 300 alleging violations of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act,
within the meaning of Sections 8 (a) (1) and (3) ; 8 (b) (1) (A) and (2) ; and
2 (6) and (7). Copies of the charges, the complaint, an order consolidating
the cases , and notice of hearing were duly served upon the parties herein.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to unfair labor practices , the complaint alleges, in substance,
that on or about February 15, 1951, upon the demand of Local 300, Austin
caused the layoff of Herman H. Spohr, Louis C. Linker, and William Schuler,
employees of Pinkerton's National Detective Agency, Inc., herein called Pinker-
ton, by canceling a contract with Pinkerton because the named individuals were
not members of Local 300.
Austin's answer denies the commission of unfair labor practices and alleges
that it is not an employer in the premises. Local 300, by its answer, denies each
of the allegations set forth in the complaint.
Pursuant to notice, a hearing was held on January 17, 1952, at Los Angeles,
California, before the undersigned Trial Examiner. The General Counsel, Aus-
tin, and Local 300 were represented by counsel, participated in the hearing, and
were afforded full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues. Some discussion in the
nature of oral argument was had upon the record at the close of the hearing.
Permission to file briefs with the undersigned was not requested.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF AUSTIN
Austin is an Ohio corporation engaged in Los Angeles, California, in engineer-
ing and building construction. During the calendar year ending December 31,
1950, Austin purchased material valued at approximately $1,225,000, 20 percent
of which in value was shipped to Austin from points outside the State of Cali-
fornia. During the same period Austin sold products and services for ap-
proximately $2,000,000, of which about 2 percent in value was shipped to points
outside the State of California. The Board has previously asserted jurisdiction
over its operations.
II. THE LABOR ORGANIZATION INVOLVED
Local 300 is a labor organization admitting to membership employees of
Austin.
III. THE UNFAIR LABOR PRACTICES
In January 1951 Austin was engaged in the construction of a building in the
City of Los Angeles for the Ford Motor Company. On January 9 Austin ar-
ranged with Pinkerton for the latter to supply guards at the building site
during all hours when construction was not in progress. Under the terms of
the contract, Austin undertook to pay Pinkerton an hourly rate for each guard
detailed and reserved the right to reject any guard not acceptable to it. The
contract appears not to have been made for any specified period and presumably
was terminable by either party at any time.
Pinkerton assigned Spohr, Linker, and Schuler to perform guard duty at the
place of construction and for a period of several days or perhaps weeks these
three continued to work without incident. On a date not entirely clear from the
record but probably in early February, Joseph D'Amico, the business agent for
Local 300, remarked to Superintendent Maddox that the guards were not mem-
bers of Local 300 and that, as his local had "jurisdiction" over the work being
done on the project, the guards should be members of that local' Maddox
I D'Amico did not testify The evidence, however, sufficiently identifies him as a
responsible agent for Local 300.
AUSTIN COMPANY 1265
answered that he would discuss the question with Pinkerton. Maddox tele-
phoned the Pinkerton office to report that there was some labor trouble he desired
to discuss. Pinkerton's manager , Wadsworth, and another came to Maddox'
office, where Maddox explained what D'Amico had told him. Wadsworth said
that the guards belonged to a union other than Local 300 and that he believed
that the one to which they belonged was appropriate for the work they were
doing. Maddox explained that the construction contract would not permit of
delay. Wadsworth answered that be did not want to cause any trouble and that
if necessary the guards would be removed from the job. Later in the day in
another conversation with D'Amico, Maddox was told by the former that the
matter had to be "straightened up" pretty soon.
When he learned of the difficulty, Wadsworth telephoned D'Amico concerning
it and was told, he testified credibly, that D'Amico insisted upon the removal of
the guards because they were not members of Local 300.2 Wadsworth answered
that another labor organization had been certified by the Board as bargaining
representative for Pinkerton' guards and that he questioned the legality of
D'Amico's demand. In a second conversation later in the day, D'Amico told
Wadsworth that if the guards were not removed it would be necessary for Local
300 to place a picket line about the project. Thereupon Wadsworth conferred
with Maddox again and still later with Howard Knapp, district auditor for
Austin. Wadsworth told Knapp that he did not want to embarrass Austin or
place that company in a position where it might be damaged and that although
he was willing to continue detailing guards as long as Austin desired, he was also
willing to discontinue the service if Austin requested it. As a result of this
conference, it was decided that Pinkerton no longer would furnish guard service
to Austin and a formal cancellation reading, "This cancels the original Subcon-
tract Purchase Order in its entirety due to circumstances beyond the control of
the Vendor and purchaser," was executed effective February 16.
Thereupon, Austin made other arrangements for guard service.
On March 15, 1951, Austin sent separate letters to Spohr, Linker, and Schuler,
reading :
We hereby request that you report back to work as a guard as per terms
of your former employment, at the Ford Warehouse project at 4940 Sheila
Street, Los Angeles, California, on Tuesday, March 20th, 1951 at 4: 00 P. M.
Please report to Mr. Everett Maddox at that address.
Kindly advise of your acceptance upon receipt of this letter.
There is no evidence that Austin exercised any control over the guards. They
were paid, assigned, and worked under the direction of Pinkerton, solely. I am
sure that under any common law construction of the word the guards were not
employees of Austin and that fact is relied upon by counsel for Austin to exculpate
it for any action that it took in respect to them. However, in enacting the Na-
tional Labor Relations Act, as amended , the Congress was concerned with remov-
ing impediments to the flow of commerce among the several States and territories
stemming from labor disputes, and, as a means of diminishing the number of
such disputes, sought to encourage the collective bargaining process and to pro-
tect employees from discrimination in their employment because they chose to
become or to refrain from becoming members of a labor organization. In en-
forcing the provisions of the Act, the Board and the courts have found an em-
ployer-employee relationship to exist where under common-law principles there
perhaps was none. Thus, in the Phelps Dodge case,' the United States Supreme
3 This incident is not alleged in the complaint as an unfair labor practice.
3 Phelps Dodge Corporation v. N. L. R. B., 313 U. S. 177.
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Court found an employer to have violated Section 8 (3) of the Act, before amend-
ment, by refusing to hire two individuals for discriminatory reasons. The em-
ployer's argument that the individuals could not be considered as employees until
they had been hired, was rejected. In the Hearst case,' the same Court said that
Congress had in mind in enacting the statute "at least some other persons than
those standing in the proximate legal relationship of employee to the particular
employer involved in the labor dispute." It seems almost unnecessary to say
that here the guards were not employees of Austin for some purposes : collective
bargaining, for example. But they were employees in a generic sense and as
such had rights which the Act purports to protect. Among these is the right
to select a bargaining representative of their own and to be free from employer
and union hindrance in the field of their employment no matter what their
election in that respect. Austin is, of course, an employer and is prohibited by
the terms of the Act from discriminating in regard to hire or tenure of employ-
ment to encourage or discourage membership in any labor organization. Sec-
tion 8 (a) (3) of the Act, which is here brought into focus, with seeming inten-
tion does not limit the prohibition to situations arising between an employer and
his employees. In establishing a broad national policy in respect to employer-
employee relationships, as set forth in Sections 7 and 8 of the Act, Congress
proscribed the imposition of employment conditions which encourage or dis-
courage membership in labor organizations. One who finds that his oppor-
tunities to work at his trade are circumscribed because lie belongs or fails to
belong to a particular labor organization has, of course, suffered a discrimina-
tion and it would seem to follow that the one responsible for the discrimination,
if he be amenable to the Act, has violated its provisions. To hold otherwise
would limit the usefulness of the Act and to that extent defeat its purposes.
Little more than a recital of the statutory objective coupled with Board and
Court interpretations is needed to convince that Congress intended all those
within the reach of the jurisdiction conferred upon the Board to conform to
the Act's provisions and all those within the definition of employee to receive
the protection that the Act affords. By apt language the force of the Act is not
limited to those situations arising between an employee and his employer. Little
imagination is needed to foresee the consequences of a different interpretation.
In the construction industry, for example, a dominant union might uniformly
insist that employees of another employer and with other representation, not
work on the project without becoming its members! Similarly, an employer
might impose conditions of union membership or nonmembership on such em-
ployees on the theory that as he was not the direct employer he need not concern
himself with their rights under Section 7.
I find that Austin is an employer within the meaning of Section 2 (2) of
the Act and that Spohr, Linker, and Schuler are employees within the meaning
of Section 2 (3) of the Act. I further find that by canceling its contract with
Pinkerton because the guards supplied by Pinkerton were not members of Local
300, Austin discriminated in regard to the terms and conditions of employment
of Spohr, Linker, and Schuler, thereby encouraging membership in Local
300, and that Austin thereby violated Section 8 (a) (3) of the Act. By such
discrimination I find Austin interfered with, restrained, and coerced employees
in the exercise of their rights under Section 7 of the Act and thereby violated
Section 8 (a) (1) of the Act.
By the same reasoning Local 300 caused Austin to discriminate against Spohr,
Linker, and Schuler, in violation of Section 8 (a) (3) and thereby violated
+N L R B v. Hearst Publications, incorporated, et at., 322 U. S. 111.
8 Possibly, but not surely, violating another section of the Act, 8 (b) (4) (A) and (B).
AUSTIN COMPANY 1267
-Section 8 (b)- (2) of the Act. By this conduct I further find that Local 300
restrained and coerced employees in the exercise of rights guaranteed in Section
7 of the Act, in violation of Section 8 (b) (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Austin and Local 300, described in section III, above,
considered in connection with the business of Austin , set forth in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States , and such of them as have been found to
constitute unfair labor practices tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
v. THE REMEDY
Having found that Austin and Local 300 have committed certain unfair labor
practices , it will be recommended that each cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that Local 300 has restrained and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act, and has caused Austin
to discriminate against Spohr, Linker, and Schuler, it will be recommended that
Local 300 cease and'desist from such conduct.
Having found that Austin has interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed in Section 7 of the Act, and has
encouraged membership in Local 300 by preventing Spohr, Linker, and Schuler
from pursuing their employment as guards on its premises because they were
not members of Local 300, it will be recommended that Austin cease and desist
from such conduct.
When the contract with 'Pinkerton was terminated, Pinkerton' s need for
guards was pro tanto diminished . Whether this affected the employment op-
portunities of Spohr, Linker, and Schuler is uncertain a Pinkerton's situation
may have been such that the three could have been assigned elsewhere without
loss of earnings, or it may have resulted in one or more of the three being
given less work than otherwise would have been available to him, or still other
guards, not named in the complaint, may have been deprived of employment.
In order, as nearly as possible, to restore the status quo, it will be recommended
that to the extent, if at all, Spohr, Linker, or Schuler suffered any loss of earnings
because of the discrimination against them, Austin and Local 300, severally, make
them whole in that respect by payment to each of a sum of money equal to
that which he normally would have earned as wages from February 16 to
the date that the need for guards on this particular project ended , less his
net earnings during that period . Loss of pay shall be computed upon the
basis of each calendar quarter or portion thereof during the period from
February 16 to the time when no guards were used by Austin at the Ford
Building. Loss of pay shall be determined by deducting from a sum equal
to'that which each would have earned for each quarter or portion thereof his
net earnings, if any , for that period. Earnings in one particular quarter shall
have no effect upon back pay liability for any other quarter. It will also be
recommended that Austin be ordered to make available to the Board or its
agents, upon request, all pertinent records in order to facilitate the checking
of the amount of back pay due.
The offer of employment by Austin on March 15 did not permit them to work on
Austin's premises as Pinkerton guards.
242305-53-81
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Laborers and Hod Carriers Union, Local No. 300 is a labor organization
within the meaning of Section 2 (5) of the Act.
2. Austin Company is an employer within the meaning of Section 2 (2) of
the Act.
3. By causing Austin Company to discriminate in regard to the terms of em-
ployment of Herman H. Spohr , Louis C. Linker , and William Schuler , Laborers
and Hod Carriers Union , Local No . 300, has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act.
4. By such conduct Laborers and Hod Carriers Union, Local No. 300, has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act.
5. By discriminating in regard to the terms of employment of Herman H.
Spohr, Louis C. Linker, and William Schuler, thus encouraging membership in a
labor organization , Austin Company has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
6. By such conduct, Austin Company has interfered with, restrained, and co-
erced employees in the exercise of rights guaranteed in Section 7 of the Act and
thus has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) 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.
[Recommendations omitted from publication in this volume.]
MATSON NAVIGATION COMPANY and LESLIE E. BOATWRIGHT AND
ROBERT B . STEWART
NATIONAL UNION OF MARINE COOKS AND STEWARDS and LESLIE E. BOAT-
WRIGHT AND ROBERT B. STEWART . Cases Nos. 20-CA-524 and
O-CB172, December, 196$
Decision and Order
On May 15, 1952, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner fur-
ther found that the Respondent Matson had not engaged in other un-
fair labor practices alleged to violate Section 8 (a) (4), and dismissed
the pertinent allegations of the complaint.' Thereafter, the Respond-
s Absent exceptions, and in view of our determination herein, we deem it unnecessary
to pass upon the merits of this action of the Trial Examiner.
101 NLRB No. 214.