Cedar Rapids Block Co., Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1963

143 N.L.R.B. 986 (N.L.R.B. 1963)

986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cedar Rapids Block Company, Inc. and Cedar Sand and Gravel
Company and International Union of Operating Engineers,
Local 234, AFL-CIO
Chauffeurs, Teamsters and Helpers Local Union No. 238 , affili-
ated with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America [Cedar Rapids Block
Company, Inc. and Cedar Sand and Gravel Company] and
Clarence C . Johnson . Cases Nos. 18-CA-1444 and 18-CB-179.
July 31, 1963
DECISION AND ORDER
On November 21, 1962, Trial Examiner Frederick U. Reel 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 attached Intermediate Report. The
General Counsel has filed exceptions and a brief in support thereof.
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 [Members Leedom, Fanning, 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 brief, and the entire record in this
case, and finds substantial merit in the exceptions. The Trial Ex-
aminer's findings, conclusions, and recommendations are adopted to the
limited extent consistent with this decision.
As found by the Trial Examiner, Cedar Sand and Gravel Com-
pany, a wholly-owned subsidiary of Cedar Rapids Block Company,
Inc., began the production of sand and gravel in the spring of 1957
and ceased such production in November 1958. Its stockpile of mate-
rial was exhausted in 1959 and in 1962 the sand plant equipment was
sold. Thereafter this Company became defunct. While the Trial
Examiner found that the two Companies "may be considered as a
single employer" for purposes of the Board's jurisdiction, he failed
to find that the two Companies were, in fact, a single employer. The
record shows that the sand company was acquired and operated by the
president of the Block Company as an alternative source of supply
for the latter Company. In 1959 the stock of the Sand Company was
sold to the Block Company. At all times both Companies were com-
monly owned, controlled, and operated as a single integrated enter-
prise. Indeed, Johnson, the alleged discriminatee in this case, was
originally paid by the Block Company, while an employee of the Sand
Company, and thereafter performed work for both Companies. On
143 NLRB No. 106.
CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 987
these facts we find that the Sand Company and the Block Company,
hereinafter called the Company, constituted a single employer for all
purposes material to this case.
Johnson was first employed by the Sand Company to install and
operate the sand plant. When the sand plant ceased operations John-
son was employed to operate a Koehring or crawler crane at the J
Street plant of the Block Company, continuing to spend about 10 per-
cent of his time at the sand plant. The employees of the Block Com-
pany at the J Street plant were represented by Respondent Teamsters
under a collective-bargaining agreement which provided, inter alia,
that "Vacancies in jobs are to be filled on the basis of seniority among
qualified employees bidding for such jobs." Assuming Johnson's
work as a crane operator at the J Street location came within the
coverage of the contract, the parties had orally agreed to exclude
him from the unit. This was not distasteful to Johnson who was a
member of Local 234, International Union of Operating Engineers,
and regarded that Union, if any union, as his bargaining representa-
tive. In the spring of 1961 the Block Company contemplated the in-
stallation of an overhead crane which would eliminate virtually all of
the work of the crawler crane and a certain amount of other yard-
work. In April 1961 representatives of the Teamsters took the posi-
tion, according to the credited testimony of L. F. Becker, vice president
of the Block Company, that the operation of the overhead crane was
a job covered by the Teamsters' agreement with that Company.
Nevertheless, Johnson was sent by the Company to Mount Vernon,
Illinois, to dismantle and ship the overhead crane to the J Street plant
in May 1961, and was assigned the job of assembling and installing
the crane at this location in the winter of 1962. Upon his return from
Mount Vernon, Johnson was told by the Teamsters' assistant steward,
Joe Shuff, that the overhead crane was a piece of Teamsters' equip-
ment and that Shuff would be the operator.
On April 6, 1962, Johnson was handed a letter signed by Clyde
Stewart, then general manager of the Block Company, stating as fol-
lows : "Due to the inactivity of our sand operation and causes beyond
our control, your employment with this company will terminate as of
Friday, April 6." However, Johnson continued to be employed at
the sand plant location until the following May 11. In the interim
Shuff, a yardman, who did not bid for the job, was assigned to operate
the overhead crane until his promotion to foreman on May 14, 3 days
after Johnson's final termination. Thereafter the crane was operated
by Nile Mentzer, a yard employee, who, so faras the record shows, had
no experience in this line of work.
Testimony with respect to the reasons for Johnson's discharge is
conflicting. According to Johnson's uncontradicted testimony he was
told in mid-March by Stewart that "pressure was being put on by the
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Union and he didn't want no labor trouble so he figured
he would have to let me go." Becker, who was credited by the Trial
Examiner, denied having told Johnson after the latter's discharge :
"I hate to see you go . . . I heard that you didn't want to join the
Teamsters Union . . . I don't blame you." According to Becker, the
reasons for Johnson's discharge were related solely to the sale of the
sand plant equipment "because we didn't need a sand plant operator
if we didn't have a sand plant." Becker also believed Johnson was too
high priced at a salary of $150 per week. Although Becker was one
of the Company's officials who decided upon Johnson's discharge, he
was unable to explain the meaning of the phrase "causes beyond our
control" which appeared in Johnson's discharge letter of April 6.
Leo Jasien, then J Street plant manager, expanded on the reasons for
Johnson's discharge. Denying that he had told Johnson that Jasien
was "pretty sure" Johnson could operate the overhead crane if he
would join the Teamsters Union, Jasien testified that the Company at
all times regarded Johnson as an employee of the Sand Company on
"temporary" loan to the Block Company. The whole dispute, accord-
ing to Jasien, might have been resolved if Johnson had agreed to be-
come an employee of the Block Company. Jasien testified to several
conversations with Melvin J. Smith, business representative of the
Teamsters, in which the latter took the position that the job of the
overhead crane belonged in the unit which his union represented. Ac-
cording to Jasien, he suggested to Johnson that if the latter became
an employee of the Block Company "either in a special seniority ca-
pacity or as a new employee" Jasien believed "Mr. Shuff would have
respected Mr. Johnson's ability and not pushed the fact that he had
seniority over Mr. Johnson." Jasien further testified that he "as-
sumed" Johnson would eventually become a member of the Teamsters
Union if he became an employee of the Block Company. Johnson,
again according to Jasien, rejected the suggestion of a special place
on the seniority list or becoming a new employee of the Block
Company.
The threatened discharge of Johnson was referred to a committee
of the local Building Trades Council as the result of a protest by
E. A. Mahannah, vice president of the Operating Engineers. Ma-
hannah, corroborated by Glen DeWald, business representative of
the International Brotherhood of Electrical Workers, testified that
Smith for the Teamsters took the position that Johnson had had an
opportunity to join the Teamsters and, having failed to do so, had to
go. Smith, corroborated by Joseph Fiala, then president of the
Building Trades Council, testified that at all times he argued that
Johnson had to become a member of the bargaining unit with
seniority from the date of his transfer into that unit. A fifth witness,
Earl Edwards, assistant business representative of the Carpenters,
CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 989
testified that Smith had stated that Johnson "was not a member of the
Teamsters." Edwards did not recall Smith using the term "unit" or
"union" in juxtaposition to the term "Teamsters."
The Trial Examiner uniformly discredited all witnesses who testi-
fied that officials of the Respondent Company and Respondent Union
had stated that Johnson could not operate the overhead crane unless
he joined the Teamsters' Union. A Trial Examiner's resolution of
credibility is entitled to great weight and is normally accepted by the
Board. Standard Dry Wall Products, Inc., 91 NLRB 544. Although
the pattern of Becker's testimony compared with Jasien's and the text
of the discharge letter of April 6 suggest shifting or unspecified rea-
sons for Johnson's termination, the clear preponderance of all the
evidence does not warrant a reversal of the Trial Examiner's credi-
bility findings.
On these findings the Trial Examiner concluded that Johnson was
terminated because his services were no longer needed when it was
decided that the sand plant would not be reactivated, even assuming
that the Sand Company was another division of the Block Company.
He concluded, further that the new crane job was encompassed within
the unit represented by the Teamsters and the latter's pressure to
cause Johnson's discharge was merely "a concomitant of proper allo-
cation of the job." With respect to the alternative offered Johnson
by Jasien, the Trial Examiner found that Johnson might have been
assigned to the crane job if he had been willing, as he was not, to
accept "the Teamsters as his bargaining representative."
As to the Trial Examiner's first conclusion, it is perfectly clear that
Johnson's services were at all times available to either or both Com-
panies, which, as found above, constitute a single employer. He had
been employed at the J Street plant from January 1959 to April 1962
as a crawler crane operator. It is not, and cannot be, denied that
Johnson would have continued indefinitely at this job regardless
of the disposition of the sand plant. The record shows that Johnson
was the only employee at the J Street plant qualified to operate this
crane. During his absences an outside operating engineer of similar
qualifications rather than a member of the Teamsters' unit was em-
ployed, as needed, to substitute for him. It is apparent, moreover,
from Jasien's testimony that the Company was desirous of retaining
Johnson's services if an accommodation could be reached between
Johnson and the Teamsters. Jasien testified that Johnson "was a
very industrious man and an excellent employee." He pointed out
that Johnson's "advice and counsel in many cases was extremely valu-
able to me." Whether the Company would have decided after its
experience of 3 years to discontinue the use of a crawler crane at
the J Street plant in the event the sand plant was reactivated is a_
matter of conjecture. The evidence indicates that a crane had become
'990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so necessary a part of the Company's operations that in 1961 the
Company bought and in 1962 installed a permanent overhead crane,
admittedly a substitute for the crawler crane. In any event, no issue
was raised as to Johnson's continued employment prior to the acquisi-
tion of the overhead crane. On these facts we find that the Company's
decision, at the insistence of the Teamsters, to discharge Johnson
was due to the substitution of the latter crane for the former rather
than the sale of the sand plant equipment.
The Trial Examiner's final conclusion, that Johnson was discharged
lawfully because his job as the operator of a crawler crane came to an
end and the job of operating the overhead crane was simply not avail-
able to him because it was work within the unit represented by the
Teamsters, presents the critical issue in this case. The record sug-
gests that proper allocation of the new crane job based upon unit
considerations was not necessarily the reason for the inclusion of
that job in the Teamsters' unit. It would have been just as proper
to include the operation of the crawler crane in that unit. However,
as indicated above, Johnson was the only employee at the J Street
plant qualified to operate the crawler crane. On the other hand, the
overhead crane could be operated by an employee less skilled in this
line of work, such as Shuff or Mentzer. It would therefore seem
more likely that the latter reason rather than mere unit considerations
prompted the Teamsters to insist that the overhead crane was a piece
-of Teamsters' equipment. However, this crane was more closely re-
lated in function to the crawler crane than to other production jobs
at the J Street plant. Johnson's superior qualifications to operate
either crane is beyond question. He was entrusted by the Company
with the job of disassembling and shipping the overhead crane from
its original location and then reassembling it at the J Street site. So
far as he was concerned, the operation of the new crane was work
that he had been "doing down there."
The Teamsters contract for the Block Company's employees covers
"employees coming within the jurisdiction of Chauffeurs, Teamsters
and Helpers Local No. 238" and that Union is recognized as the bar-
gaining agent for "all classifications of employees covered by the
agreement." Specific classifications enumerated for the Block plant
are : "working foremen, operator-block machine, operator-grinding,
sizing & beveling machines, operator-mixer, operator-power cuber,
operator-lifttruck, operator-material conveyors or bins, operator-
lintel maker, yardmen, truckdrivers." While "working foreman" and
"all other employees" are included in the Joist plant, no mention is
made of a classification designated "crane operator" at the J Street
site. Whether Respondent Teamsters regarded a crawler crane oper-
ator as outside their jurisdiction and an overhead crane operator as
within their jurisdiction is a matter we need not decide. The literal
CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 991
language of the contract did not specifically include either classifica-
tion. The first was deliberately excluded by oral agreement of the
parties and the second was, at most, a classification not contemplated
at the time the unit description was drawn. The inclusion of the
overhead crane job was, therefore, an addition to the existing unit.
In some circumstances Board representation law permits such an
addition under the theory of accretion where the new job or jobs are
no more than an extension of unit work or a new hiring in the same
or similar classifications. But the right of parties to a contract to
add a new classification to an existing unit is not absolute. In the
instant case the overhead crane, while a new piece of equipment, did
not create a totally "new" job. Johnson was given the curious al-
ternative of agreeing to join the "Teamsters unit" or face replacement
as a crane operator. It is clear from the record that he believed join-
ing the "Teamsters unit" meant nothing more or less than joining
the "Teamsters Union." He testified : "I figured I belonged to a
labor organization already, so why should I join another one to do
my work . . ." No official of Respondent Company or Respondent
Union attempted to reassure him on this point. Indeed, Jasien as-
sumed that Johnson would eventually become a member of the Team-
sters Union if he accepted the terms proposed to him.
On these facts we find that Johnson's discharge may not be defended
on unit grounds. Having excluded the crawler crane job from the
existing unit for a period of more than 3 years, the parties in this case
were not free to include the overhead crane with the concomitant dis-
charge of the crane operator because he was not "a member of the,
unit." A defense of this kind would require irrefutable proof that
the parties' unit determination, designed to coerce an employee to.
accept unwanted union representation, was made in good faith and
correct. Such proof does not exist in this case. Under these cir-
cumstances, we find that Johnson's discharge constituted discrimi-
nation against him which necessarily encouraged union membership.
Accordingly, we conclude that the Respondent Union violated Sec-
tion 8(b) (2) and (1) (A) of the Act by causing the Respondent Com-
pany to discharge Johnson, and that the Respondent Company vi-
olated Section 8(a) (3) and (1) of the Act by acceding to this demand.
The activities of the Respondents set forth above, occurring in
connection with the operations of the Respondent Company, 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 thereof.
THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices, we shall order that they cease and desist therefrom and
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take certain affirmative action designed to effectuate the policies of
the Act.
Since we have found that the Respondent Union and Respondent
Company are both responsible for the discrimination suffered by
Johnson, we shall order that they jointly and severally make Johnson
whole for the loss of pay he may have suffered by reason of the
discrimination against him, by payment to Johnson of a sum of
money equal to that which he normally would have earned as wages
from May 11, 1962, the date of the actual discrimination against him,
to the date of a valid offer of reinstatement less net earnings to be
computed in the manner set forth in F. W. Woolworth Company, 90
NLRB 289, together with interest at the rate of 6 percent per annum.'
We shall order the Respondent Company to offer immediate and
.full reinstatement to Johnson to his former or substantially equivalent
position without prejudice to his seniority or other rights and
privileges.
We shall order the Respondent Union to notify the Respondent
Company, in writing, and furnish a copy to Johnson, that it has
withdrawn its objections to the employment of Johnson as a crane
operator by the Respondent Company and accedes to the Respondent
Company's reinstatement of Johnson. The Respondent Union's lia-
bility for backpay shall cease 5 days after such notifications.
We shall further require, in accordance with our usual practice, that
the Respondent Company, upon request, make available to the Board
and its agents all pertinent records necessary to compute the amount
of backpay due.
CONCLUSIONS OF LAw
1. The Respondent Union, Chauffeurs, Teamsters and Helpers Local
Union No. 238 is a labor organization within the meaning of Section
2(5) of the Act.
2. By causing the Respondent Company to discriminate against
Clarence C. Johnson because he was not, and was unwilling to be,
represented by the Respondent Union, the Respondent Union has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8(b) (2) and (1) (A) of the Act.
3. By discriminating against Clarence C. Johnson at the demand
of Respondent Union, the Respondent Company has engaged in and
is engaging in unfair labor practices within the meaning of Section
8(a) (3) and (1) (A) 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.
i Isis plumbing & Heating Co., 138 NLRB 716.
CEDAR RAPIDS BLOCK COMPANY, INC., ETC.
ORDER
993
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 Union, Chauffeurs, Teamsters and Helpers Lo-
cal Union No. 238, its officers, agents, representatives, successors, and
assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause the Respondent Company, its
officers, agents, successors, or assigns, to discriminate against Clarence
C. Johnson with respect to his employment as a crane operator or
any term or condition of his employment because he is not, or is
unwilling to be, represented by Respondent Union, except as author-
ized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(b) In any like or related manner restraining or coercing em-
ployees of the Respondent Company in the exercise of the rights
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) Notify the Respondent Company, in writing, with a copy to
Johnson, that it has withdrawn its objections to the employment of
Johnson as a crane operator and accedes to the Respondent Com-
pany's reinstatement of Johnson.
(b) Jointly and severally with the Respondent Company make
Clarence C. Johnson whole in the manner set forth in the section
entitled "The Remedy."
(c) Post at its office and place of business in Cedar Rapids, Iowa,
and at all locations where notices to members are customarily posted,
copies of the attached notice marked "Appendix A." 2 Copies of said
notice, to be furnished by the Regional Director for the Eighteenth
Region, shall, after being duly signed by a representative of the Re-
spondent Union, be posted by it immediately upon receipt thereof, and
be maintained by it fora, period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its members
are customarily posted. Reasonable steps shall be taken by the Re-
spondent Union to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Additional copies of the attached notice marked "Appendix A"
shall be signed by a representative of the Respondent Union and
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall he substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forthwith returned to the Regional Director for the Eighteenth Re-
gion. These notices shall be posted, at places where notices to the
Respondent Company's employees at its Cedar Rapids, Iowa, place
of business are customarily posted.
(e) Notify the Regional Director for the Eighteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
B. The Respondent Company, Cedar Rapids Block Company, Inc.,
et al., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in the Respondent Union by dis-
charging Clarence C. Johnson or discriminating against him in any
manner because he is not, or is unwilling to be, represented by Re-
spondent Union, except as authorized by Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the polices of the Act :
(a) Offer Clarence C. Johnson immediate and full reinstatement to
his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and, jointly and sev-
erally with the Respondent Union, make him whole in the manner set
forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social Se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to insure expeditious compliance with this
Order.
(c) Post at its place of business at Cedar Rapids, Iowa, copies of
the attached notices marked "Appendix B." 3 Copies of said notice,
to be furnished by the Regional Director for the Eighteenth Region,
shall, after being duly signed by the Respondent Company's rep-
resentative, be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
Company to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Eighteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
3 Sce footnote 2, supra.
CEDAR RAPIDS BLOCK COMPANY, INC., ETC . 995
MEMBER BROWN, dissenting :
I would accept the Trial Examiner's recommendation that this com-
plaint be dismissed.
The basic issue in the case is whether the Respondent Union caused
the Respondent Company to remove Johnson as operator of the over-
head, crane for a lawful or unlawful reason. The majority opinion,
without reversing the Trial Examiner's credibility findings, recites
both credited and discredited testimony. At the outset, therefore, I
find it necessary to set forth my understanding of the pertinent facts.
Johnson and one Fox were hired in 1956 to construct and operate a
sand plant because the Respondent Company was then in need, of its
own source of sand and gravel. A continuing need for the operation
of this plant prevailed until late in 1958, when the plant stopped pro-
duction. The Employer, however, continued to use an existing stock-
pile until 1959, when it again became cheaper for it to use outside
sources of supply. Although the stockpile was depleted in 1959, the
Respondent Company decided to retain the sand plant as "insurance"
against the possibility of its outside sources being cut off once more.
Johnson was retained to maintain the sand plant for future operation
by him if the need for it were to arise. The Respondent Company also
decided to utilize Johnson's talents in other work while the sand plant
lay idle. It assigned him to a variety of production jobs at the J Street
plant, where he primarily operated, the crawler, or Koehring, crane.
The Employer has long had contracts with the Respondent Union.
Its latest agreement covers the J Street plant and states that job va-
cancies at J Street are to be filled by seniority among the employees
working there; seniority accrued in other divisions of the Respondent
Company is not transferable to J Street. As early as 1960, the Re-
spondent Union, in accordance with its contract, questioned the Re-
spondent Company about Johnson's operation of the crane and his
other participation in unit work. Its business agent insisted that, if
Johnson was to continue working at J Street, he be formally desig-
nated as a J Street employee and be placed on the J Street seniority
list. The Respondent Company replied that Johnson's assignment to
J Street was only temporary, pending reopening of the sand plant.
However, Johnson continued to spend most of his time at J Street, and
the Teamsters repeatedly renewed its protest. The Respondent Com-
pany sought to placate the Respondent Union with assertions that
Johnson's stay was only temporary. J Street's plant manager, Jasien,
also testified that on occasion he warned Johnson to stay away from
unit work.
Johnson was well aware of his special status. While he was working
at J Street, unit employees senior to him in uninterrupted J Street
work were laid, off, but Johnson's employment was never affected.
Johnson's name, in fact, never appeared on the seniority list of J
717-6764-vol. 143-64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Street employees, and at no time did he object to the omission. Nor
did Johnson ever receive the insurance and fringe benefits accorded
all J Street employees. He did not punch a timeclock as did the other
J Street production workers. Moreover, the possibility always ex-
isted that Johnson would return to sand plant operations.
The overhead crane began to be erected at J Street in July 1961.
Teamsters business agent, Smith, went to Jasien at that time and
urged that the crane job be awarded to that J Street employee having
the greatest unit seniority. He reiterated that Johnson was not a
unit member and consequently had no right to the job. Jasien antici-
pated the impending controversy, and, in March 19622, when the crane
finally became operable, tried to settle the matter by offering Johnson
three choices : Johnson could agree to become a unit member and Jasien
would try to obtain for him a privileged position on the J Street
seniority list; Johnson could become a J Street employee and accumu-
late seniority in the normal manner; or the situation would be left to
resolve itself. Johnson decided not to have Jasien try to work out an
accommodation for him.
The local Building Trades Council, a group comprised of repre-
sentatives of several unions located in the city, convened in an attempt
to settle the dispute. The position taken by the Respondent Union
was that Johnson was not entitled to the overhead crane job because
he was not a member of the J Street unit.
Meanwhile, the crane was installed and Joe Shuff, who had J Street
seniority dating from May 1958, and whose work was taken over in
part by the new machine, was assigned to it. Shortly thereafter,
Johnson was discharged, the Respondent Company having decided
to dispose of the sand plant.
These are the facts credited by the Trial Examiner and accepted
by my colleagues and, therefore, are the critical events upon which
this case must be decided. The basis for my colleagues' reversal of
the Trial Examiner presumably lies in their findings that the crawler
crane was excluded by oral agreement from the contract unit repre-
sented by the Respondent Union, that the overhead crane was an addi-
tion to that unit, and that "Having excluded the crawler crane job
from the existing unit for a period of more than three years, the
parties in this case were not free to include the overhead crane with
the concomitant discharge of the crane operator because he was not
a `member of the unit.' " I believe, however, that my colleagues have
concerned themselves with a problem which is not presented by this
case. As the majority opinion recognizes, in their contract Respond-
ents agreed to terms covering "those employees coming within the
jurisdiction" of the Respondent Union. The Respondent Company
therein recognizes the Respondent Union as the bargaining agent for
CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 997
"all classifications of employees covered by" the agreement.' And
the agreement recites that the classifications covered at the J Street
plant herein involved are "working foremen" and "all other em-
ployees." In the conversations between Respondents with respect to
Johnson, the Respondent Union's complaint was that Johnson, al-
though not a member of the unit represented by it, was engaged in
unit work, and the Respondent Company sought to placate the
Union by assurances that Johnson was only temporarily employed in
such work. When the overhead crane was acquired, it replaced the
crawler crane. Nobody in this case argues that either the crawler
crane or overhead crane was not unit work. Even the General Coun-
sel maintains that "The record is replete with evidence that at all
times since the beginning of his employment in 1956 Johnson worked
in a classification which brought him within the scope of the unit
represented by the Teamsters" and that "Johnson at all times worked
in a classification included within the scope of that unit." It accord-
ingly follows that my colleagues' contrary finding, upon which their
ultimate conclusion turns, was not urged in this proceeding nor is it
supported by the record.
As the General Counsel concedes, Johnson at all times worked in
a classification falling within the unit represented by the Respondent
Union. But I do not agree with the General Counsel that Johnson's
discharge was therefore discriminatory. For, from the very begin-
ning of his assignment to the crawler crane, Johnson, although there-
after engaged in unit work, was not considered by Respondents as
part of the contract unit, and Johnson himself enthusiastically ac-
quiesced in his exclusion pursuant to this understanding, which was
without any discriminatory basis. When the Respondent Union
periodically questioned the retention of a nonunit employee in a unit
job, the Company each time assured the Union that the arrangement
was not a permanent one; it also appears that no employee in the
unit represented by the Union was adversely affected by Johnson's
assignment to the crawler crane. So, until the overhead crane entered
the picture, the Respondent Union was willing to recognize Johnson's
special status and accommodate the Respondent Company in its utili-
zation of Johnson.
However, the introduction of the overhead crane altered Respond-
ent Union's attitude regarding Johnson's assignment to that machine,
and understandably so. Now, this temporary employee who was
excluded from the contract unit under the tripartite understanding
of Respondents and Johnson himself was threatening the job security
of Shuff, a unit member whose seniority dated back to May 1958,
'The crawler crane was , of course , in operation at the time of the execution of this
contract.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before Johnson's assignment to the crawler crane. The Respondent
Union renewed its protests against Johnson, all the while asserting
his nonunit status, until the Respondent Company replaced Johnson
with Shuff.
Plainly, all that the Respondent Union sought herein was to
preserve the contract work and seniority rights of employees whom it
represented under the contract with the Respondent Company. This
was a legitimate function, fulfilled by lawful means. I cannot see
how the Respondents can be held in violation of the Act on account
thereof. I would therefore dismiss the complaint.
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 WILL NOT cause or attempt to cause Cedar Rapids Block
Company, Inc., et al., its officers, agents, successors, or assigns,
to discriminate against Clarence C. Johnson with respect to his
employment as a crane operator or any term or condition of his
employment because he is not, or is unwilling to be, represented
by Chauffeurs, Teamsters and Helpers Local Union No. 238, ex-
cept as authorized by Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any like or related manner restrain or coerce
employees of the above-named Company, its officers, agents, suc-
cessors, and assigns, in the exercise of the rights guaranteed in
Section 7 of the Act.
WE WILL jointly and severally with the above-named Company
make Clarence C. Johnson whole for any loss of money he may
have suffered as a result of the discrimination against him.
WE HAVE no objection to the employment of Clarence C. John-
son as a crane operator by the above-named Company.
CHAUFFEURS, TEAMSTERS AND HELPERS
LOCAL UNION No. 238,
Labor Organization-
Dated ---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 999
Employees may communicate directly with the Board's Regional
-Office, 316 Federal Building, 110 South Fourth Street, Minneapolis,
Minnesota, 55401, Telephone No. 339-0112, Extension 2601, if they
have any question concerning this notice or compliance with its
,provisions.
APPENDIX B
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 our employees that:
WE WILL NOT encourage membership in Chauffeurs, Teamsters,
and Helpers Local Union No. 238 by discharging Clarence C.
Johnson or discriminating against him in any manner because he
is not, or is unwilling to be, represented by Chauffeurs, Teamsters
and Helpers Local Union No. 238 except as authorized by Section
8 (a) (3) of the Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed in Section 7 of the Act.
WE WILL offer Clarence C. Johnson immediate and full rein-
statement and, jointly and severally with the above-named Union,
will make him whole for any loss of money he may have suffered
as a result of the discrimination against him.
CEDAR RAPIDS BLOCK COMPANY, INC. ET AL.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
NOTE.-We will notify Clarence C. Johnson if presently serving in
the Armed Forces of the United States of his right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 316 Federal Building, 110 South Fourth Street, Minneapolis,
Minnesota, 55401, Telephone No. 339-0112, Extension 2601, if they
have any question concerning this notice or compliance with its
provisions.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
These cases, consolidated by the Regional Director, and presenting a single issue-
whether the discharge of Clarence C. Johnson was occasioned by his lack of member-
ship in the Respondent Union-were heard before Trial Examiner Frederick U. Reel,
at Cedar Rapids, Iowa, on September 17 and 18 and October 2, 1962.1 At the con-
clusion of the hearing counsel for Respondent Employers presented oral argument,
and thereafter he, as well as counsel for Respondent Union and counsel for the Gen-
eral Counsel, filed briefs, which have been carefully considered. Upon such con-
sideration and upon the entire record in the case, including my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYERS
Cedar Rapids Block Company, Inc., herein sometimes called the Block Company,
is an Iowa corporation maintaining its principal place of business in Cedar Rapids,
Iowa, where it manufactures and sells concrete building products and masonry wall
reinforcing materials. It annually receives from outside the State goods and ma-
terials valued in excess of $50,000, and annually ships across State lines products
valued in excess of $50,000. The Block Company is engaged in commerce within
the meaning of the Act. Respondent Cedar Sand and Gravel Company, herein some-
times called the Sand Company, is a wholly owned subsidiary of the Block Company
The operations of the Sand Company are described more fully infra. At this point, it
suffices to say that 90 percent of its production was used by the parent Block Com-
pany, that for purposes of the Board's jurisdiction the two may be considered as a
single employer, and that the Sand Company is engaged in commerce within the
meaning of the Act.
If. THE LABOR ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local 234, AFL-CIO, (herein called
the Operating Engineers) and Chauffeurs, Teamsters and Helpers Local Union No.
238, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America (herein called the Teamsters) are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The sand plant operation and the employment of Johnson
In 1956 the Block Company's sole local source of sand and gravel (a company
known as Concrete Materials) was shut down by a prolonged strike. The president
of the Block Company, Harold Spaight, decided to acquire and operate a sand plant
to protect the Block Company against future difficulties in obtaining sand and against
increases in the cost of sand and gravel which might be anticipated under the then
existing monopoly. In the latter part of 1956 he arranged with Clarence Johnson
and Ray Fox to erect and operate a sand plant. This plant started operating in the
spring of 1957, extracting sand and gravel from the Cedar River. Approximately 90
percent of its production was sold to the Block Company. In November 1958 the
sand plant stopped producing, but the Block Company continued to purchase sand
and gravel from the stockpile there accumulated, until the stockpile was exhausted
in 1959. At that time, the strike at Concrete Materials having ended, the Block Com-
pany discovered it was cheaper to obtain sand from its former supplier than from
the sand plant. The sand plant stood idle until the spring of 1962, when after abortive
efforts to move the equipment to another community, the sand plant was offered for
sale to one Ross. Ross, although he did not buy this equipment, did decide to open a
local sand plant, thereby furnishing the Block Company with an alternate source of
supply. The sand plant equipment was then sold in May 1962, for something over
$30,000, about half its original cost.
'The charge In Case No 18-CA-1444 was filed and served June 18, 1962, and an
amended charge was filed and served July 25, 1962. The charge In Case No. 18-CB-179
was filed and served July 19, 1962, and an amended charge was filed and served July 23,
1962 The consolidated complaint Issued July 30, 1962.
CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 1001
The stock in the sand plant company, which was incorporated in May 1957, was
originally owned by Spaight , but in the spring of 1959 he sold the stock to the Block
Company, and the Sand Company was thereafter operated as a wholly owned sub-
sidiary. The Sand Company continues to exist, although shorn of its assets, as a
subsidiary of the Block Company.
When Spaight arranged with Johnson and Fox to install and operate the sand
plant , they entered into an agreement , dated October 29 , 1956, providing , inter alia,
that Johnson and Fox would each receive an hourly wage of $2.141/2, and $3.211/4
for overtime , with a weekly guarantee of $150.05.2 The agreement also provided
for a profit-sharing agreement , and contained other provisions spelling out the rights
and duties of the parties. On February 26, 1960, the agreement was terminated by a
"Release and Satisfaction" which recited , inter alia, that from that point forward
Johnson and Fox assumed the status of employees of the Sand Company in a relation-
ship terminable at will. Fox did in fact sever his connection with the operation during
1960.
In 1958, between the execution of the original employment agreement in 1956
and its formal termination in 1959, the Sand Company also entered into an agreement
with the Operating Engineers affecting Johnson and Fox. This agreement was of a
conventional type, except that it expressly provided that the 1956 agreement between
the Sand Company, Johnson, and Fox was approved. The agreement with the
Operating Engineers provided for automatic renewal in the absence of 60 days'
notice, but such notice was never given , and indeed the entire agreement was ap-
parently regarded as a "dead letter" and was not resorted to in any way.
In the early period of his employment, Johnson spent most of his time at the sand
plant, although he did spend some portion of it at the J Street plant of the Block
Company.3 Beginning in January 1959, and continuing until April 6, 1962, when
he was notified of his discharge, Johnson spent less than 10 percent of his time at the
sand plant, where his primary task was the maintenance of the machinery for possible
future use in case the sand plant should again be put in operation. The balance of
his time he spent at the Block Company's J Street plant, where he was primarily
engaged in operating a machine variously described as a Koehring or crawler or
boom crane. Although thus employed on Block Company work, Johnson was paid
by the Sand Company throughout his employment except for the early months of his
employment (prior to May 1957) when he was paid by the Block Company. From
January 1959 until Johnson's discharge, the Block Company paid the Sand Company
for work that Johnson performed for the Block Company.
On April 6, 1962, Johnson received formal notification of discharge in the form
of a letter, dated March 29, 1962, which was signed "Cedar Rapids Block Company
by Clyde L. Stewart, General Manager." Johnson obtained a few more weeks of
work readying the sand plant for ultimate disposal, and was finally terminated
May 11, 1962. The circumstances surrounding his discharge are developed more
fully infra, but to understand them fully it is first necessary to consider the employ-
ment situation at the J Street plant where Johnson had been steadily employed for
several years.
2. Employment relations at the J Street plant
For a number of years the Teamsters have been the bargaining representative of
the employees of the Block Company, under collective-bargaining agreements. These
agreements covered, among others, all Block Company employees at the J Street
plant. The contract in effect at the time of the critical events in this case provided
for a separate seniority system at the J Street plant and also provided that job va-
cancies were to be posted and were to be filled by bidding on a seniority basis. Senior-
ity for bidding purposes under that contract dated from employment in the particular
plant, and not from employment by the Company at other locations.
Although the Teamsters represented all the J Street employees of the Block Com-
pany, neither they nor Johnson nor the Block Company regarded them as represent-
ing Johnson. In the view of all concerned, Johnson was an employee of the Sand
Company, and he was "temporarily" employed at the J Street plant until such time
as the sand plant should be reactivated. Johnson's name was never included in the
seniority lists posted at the J Street plant. Layoffs at that plant were effected from
time to time on a seniority basis, but did not affect him. He did not punch a time-
2 The stated hourly wage rates, for a 60 -hour week , would yield $150 05 The overtime
rate was manifestly in error and should have been $321s/h Thus corrected, a 60-hour
week would have yielded $ 15015, and Johnson's salary was later raised to that figure.
Apart from that correction , his salary was unaltered throughout his employment.
'Before the J Street plant was built, some of its functions were performed at the sand
plant, where Johnson participated in th" work with Block Company employees
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clock as did the other J Street employees, and he was paid a guaranteed weekly
wage whereas the other J Street employees, under the Teamsters contract, received
only an hourly rate . Teamsters representatives, inquiring of the Block Company as
to Johnson's status, were told that he was an employee of the Sand Company
temporarily assigned to operate the crawler crane at the J Street plant. Matters
were permitted to ride in this matter from January 1959 until early in 1962.4
In the summer of 1961 the Block Company acquired an overhead crane for installa-
tion and use at the J Street plant. This crane was not placed in operation until the
latter part of April 1962, but the work of installing it had been going on for some
months prior thereto. It was apparent to all that the overhead crane from the nature
of its installation would be a permanent part of the J Street plant, and that it would
do not only the work theretofore performed by Johnson with the crawler crane, but
also work done by a lift-truck, operated by an employee who was a member of the
bargaining unit . The Teamsters took the position that the job of operating the
overhead crane would fall within the bargaining unit which they represented.
B. The discharge of Johnson
As the foregoing discussion shows, in the late winter and early spring of 1962 two
independent factors were contributing to the insecurity of Johnson's future tenure
of employment: the decision to dispose of and not to reopen the sand plant, and
the imminent substitution of the permanent overhead crane for the crane Johnson
had been operating. Although Johnson hoped to be assigned to the new crane, he
was aware that the Teamsters were claiming that job as within their unit. During
this period, Johnson discussed the matter with E. A. Mahannah, business representa-
tive of the Operating Engineers , and also with various officials of the Respondent
Companies.
In mid-March the then general manager of the Block Company, Clyde Stewart,
told Johnson, according to the latter's testimony, that "pressure was being put on by
the Teamsters Union and he didn't want no labor trouble so he figured he would
have to let me go." A week or so thereafter Johnson had a conversation with
Leo Jasien, then J Street plant manager, in the course of which (according to John-
son) Jasien asked if Johnson would consider joining the Teamsters Union, and added
that if Johnson would do so, Jasien was "pretty sure" Johnson could have the
overhead crane job and that "Joe Shuff [a senior employee in the J Street plant who
operated the lift truck] would [not] event want it." As noted above, Johnson
received his discharge notice on April 6, but was then given some work at the sand
plant which lasted until May 11. On that date, according to Johnson, when he re-
ceived his final paychecks in the office of L. F. Becker, vice president of both
Respondent Companies, Becker said , "I hate to see you go . . . I heard that you
didn't want to join the Teamsters Union .... I don't blame you."
With respect to the above three alleged conversations, that with Stewart stands
undenied, as Stewart, who has left the city for other employment, was not called as
a witness. Backer denied making the statement attributed to him. Jasien 's version
of his conversation with Johnson is that Jasien, seeing the problem of Johnson's future
coming to a head, suggested three alternatives to Johnson: to become an employee
of the Block Company and have Jasien undertake to negotiate with the Teamsters
to give Johnson a preferred place on the seniority roster; to become a Block Company
employee in the normal manner at the foot of the seniority list; or to let matters
ride. According to Jasien, he felt that if Johnson became a member of the bargaining
unit at the plant, the other employees would recognize his ability and his long
service on the crane, and would not press their seniority or bid for the overhead
crane job. Jasien flatly denied ever telling Johnson to join the Teamsters, however.
Jasien further testified that after some deliberation Johnson selected the third alterna-
tive-to let matters ride.
As stated above, Johnson also discussed the impending situation with Mahannah
of the Operating Engineers. According to Mahannah, he then called Ernest Pappen-
fus, then vice president of the Block Company, who "stated that the pressure was
being applied by the Teamsters organization that a Teamster was going to be placed
on the [overhead] crane." (Pappenfus, who has since left the Company and has
moved to California, did not testify.) Mahannah then took the matter up with
Melvin Smith, the Teamsters official who handled relations with the Block Company.
According to Mahannah, Smith said, in essence , "I have been getting too much heat
4 When working at J Street but not occupied on the crane, Johnson was variously en-
gaged in maintenance work on the equipment or in operating a bulldozer or in other work
that he found. On occasion the plant manager had to caution Johnson not to engage in
work regularly done by members of the bargaining unit.
CEDAR RAPIDS BLOCK COMPANY, INC., ETC. 1003
from the membership down there. We have a contract and [Johnson] has got to
go." (Smith in his testimony denied that he or any Teamsters member had ever
urged the discharge of Johnson, stating that the Teamsters throughout had merely
maintained that Johnson, if retained, must become a part of their bargaining unit,
with seniority from the date of his transfer into the unit.) Mahannah then took
the matter up with the Building Trades Council, a group of unions which included
the Operating Engineers, the Teamsters, and several others. The council appointed
a committee to look into the matter.
Some conflict developed in the testimony as to what was said at the meeting of
this committee. According to Mahannah, Smith took the position that the Team-
sters "had an industrial agreement with the Cedar Rapids Block Company and that
[Johnson] had had the opportunity to join the Teamsters and had not seen fit to,
so he had to go." According to Glen DeWald, business manager of the International
Brotherhood of Electrical Workers, who was at the meeting, Smith "mentioned that
Mr. Johnson had had an opportunity to join the Teamsters Union and have his
seniority established with that union and had not availed himself of the opportunity."
According to Earl Edwards, assistant business representative of the Carpenters'
Union, who attended the meeting, Smith said that Johnson "could continue working
for Cedar Rapids Block if he joined the Teamsters." On cross-examination, however,
Edwards was uncertain as to whether Smith had referred to membership in the
Teamsters Union or in the Teamsters unit. On the other hand Joseph Fiala, then
president of the Building Trades Council, who also attended the meeting, testified
that Smith had emphasized Johnson's being outside the bargaining unit, and had
not discussed Johnson's nonmembership in the Teamsters Union. Smith's testimony
as to the committee meeting was in accord with Fiala's and contrary to that of
Mahannah, Dewald, and Edwards. One thing all witnesses agreed on: The committee
reached no solution of the problem.
Shortly after Johnson told Mahannah of the impending discharge, Mahannah
telephoned General Manager Stewart about the matter, but (according to Mahannah;
Stewart did not testify) Stewart "said the Company couldn't afford to have no labor
trouble." Mahannah told Stewart, as he had told others, that Johnson's discharge
might lead to labor trouble between the Block Company and the Operating Engineers.
Following Johnson's notice of discharge on April 6, 1962, he spent the next
month at the sand plant and was finally terminated on May 11. Meanwhile, the
overhead crane was placed in operation, and the job of operating it was assigned
to Joe Shuff, whose seniority at the J Street plant dated to May 1958, and who had
been doing the yardwork which, to a large extent, the new crane took over. On
May 14, when Plant Manager Jasien left the Block Company, various promotions
resulted, and Shuff became a foreman. The overhead crane job was then bid for by,
and assigned to, one Nile Mentzer, whose seniority in the plant dated to April 1959.
C. Concluding findings
On the foregoing facts, I find that Johnson was discharged because the disposition
of the sand plant meant that his retention as potential operator of that plant was
no longer warranted. To be sure, but for the attitude of the Teamsters, Johnson
would have been retained to operate the overhead crane. But the Teamsters posi-
tion that the new crane job was subject to bidding under their contract was proper
and lawful, and Johnson could not have been awarded that job over Shuff, whose
seniority at the plant exceeded Johnson's, even if the latter be viewed as acquiring
seniority in January 1959 when he started to work primarily at the J Street plant .5
Moreover, Johnson had never been considered or treated as a member of the J
Street bargaining unit, and had no claim to any seniority standing there. As his
exclusion from the unit was by the common consent of all concerned, I find no
merit in General Counsel's contention that Johnson was as matter of law a part
of that unit, but even if he be so regarded, he would have had no right to the new
crane job. As his own testimony discloses that he would have accepted no other
job at the time of his discharge, I find nothing unlawful in the conduct of the
5 General Counsel in the course of his unusually fine brief lays some stress on Johnson's
conversation with Shuff when the overhead crane was acquired in which Shutt said ( accord-
ing to Johnson) that this was Teamsters equipment and he would operate it. Shuff's
version is that he said , "That is a piece of yard equipment , and it will belong to our
bargaining unit." I find, first, that Shuff, who was an assistant steward , was not speaking
as a union agent, and , second , that under Johnson's version , Shuff's remark was not under
the circumstances violative of the Act or evidence of discrimination against Johnson for
nonmembership in the Teamsters I credit Johnson 's version of the conversation , however.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer in discharging him or in the conduct of the Teamsters in opposing his
employment on the overhead crane.
In my view, all parties treated Johnson until his discharge as an employee of
the Sand Company, and not of the Block Company, on loan to the latter until such
time as the former should require his services. The record clearly establishes that
the potential recall of Johnson to sand plant work was a real possibility throughout
his employment. To be sure, the interlocking nature of the two companies was
such that either might be liable for unfair labor practices committed by the other.
The case, indeed, would be no different if the sand plant had not been separately
incorporated but had been merely another division of the Block Company. So
viewed, Johnson was on loan from one division to another, but he acquired no
seniority in the division to which he was temporarily loaned. Even if, for example,
Johnson had been a member of the Teamsters and part of the bargaining unit
at another plant, his seniority rights to bid on the overhead crane job at J Street
would have been inferior to those of Shuff, who preceded him at that plant, and
might have been inferior to Mentzer, who followed him at J Street but was always
a permanent part of that unit.
I find, in short, that the Sand Company discharged Johnson, that the Block Com-
pany then declined to hire him for the crane job (the only kind of job he would
have considered), and that neither of those actions was connected in any way with his
union membership or lack thereof. It is true that Stewart, when told by Sand
Company officials to notify Johnson of his discharge, wrote Johnson a letter
over the signature of the Block Company, but such inadvertent errors were not
infrequent in the office which served not only these two companies but others
equally interrelated with the Block Company. And, to repeat, the existence of a
separate sand corporation clarifies but does not control the situation; the result
is the same viewing the employer as a single entity with separate places of operation
In reaching the above conclusion I have resolved the several conflicts in testimony
noted in the course of this report by crediting Smith, Becker, and Jasien where their
testimony is in conflict with that of Johnson and Mahannah Primarily, I find
that the Teamsters were insisting that the crane job (and Johnson if he was to
continue to work at J Street) would be a part of their unit, not that Johnson join
their union. Iowa has a "right to work" law which precludes insistence on union
membership as a condition of employment, and this fact must have been well known
to Mahannah, Smith, and the other union business agents who participated in the
committee meeting under the auspices of the Building Trades Council. I there-
fore credit the testimony of Smith and Fiala that the former insisted at that meeting
on unit, rather than on union membership for Johnson. The pressure of the
Teamsters, to which Stewart and Pappenfus allegedly referred in conversations
with Johnson and Mahannah, was pressure to recognize that the new crane job
was subject to their contract, as it was. If the effect of this was that Johnson would
not get to operate the crane, this is a concomitant of proper allocation of the job,
and not an attempt to cause Johnson to lose employment because of nonmembership
in the Teamsters . Similarly the threat of "labor trouble" meant no more than that
the Teamsters would insist on proper application of their contract. I credit Jasien's
version of his conversation with Johnson, and find that Jasien said that Johnson
might get the new crane job without opposition from the Teamsters if he would
join the bargaining unit. This would have entailed Johnson 's taking employment
subject to the terms of the Teamsters contract and accepting the Teamsters as his
bargaining representative, which he was unwilling to do. It would not have neces-
sitated his joining that Union, although it is possible that he misunderstood Tasien
(and on another occasion Becker) on this point. Jasien's view was that the Team-
sters might not have pressed the seniority matter against the well-liked Johnson,
whose presence in the plant as operator of power equipment had long been accepted.
And, as noted above, had Johnson followed Jasien 's suggestion , he might have
achieved the crane job at that time or a month later when Shuff was promoted.
General Counsel's view of the case, briefly summarized, is that as soon as
Johnson's special protection-the possibility of reopening the sand plant-disap-
peared, the Teamsters enforced their claims to the crane job and challenged his
right thereto, ostensibly on grounds of seniority, but that this challenge would never
have been pressed had Johnson joined their union. This view depends upon resolving
certain ambiguities in the testimony and certain credibility issues, discussed above,
in favor of the Charging Parties and against Respondents Upon my consideration
of the record and my observation of the witnesses, I am impelled to a contrary
resolution.
THE CROSS COiAPANY 1005
CONCLUSIONS OF LAW
1. Respondent Employers are engaged in commerce within the meaning of the
Act.
2. Respondent Teamsters and the Operating Engineers are labor organizations
within the meaning of the Act.
3. Respondents have not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
The complaint herein should be, and hereby is , dismissed.
The Cross Company and International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America , UAW-AFL-CIO, and its Local Union No. 155, Inter-
national Union , United Automobile , Aircraft and Agricultural
Implement Workers of America , UAW-AFL-CIO. Cases Nos.
7-CA-278-1, 7-CA-2782-2, and 7-CA-3233. July 31, 1963
DECISION AND ORDER
On June 21, 1962, Trial Examiner Leo F. Lightner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take affirmative actiot _,
as set forth in the attached Intermediate Report. Thereafter, the
Respondent and the Charging Party filed exceptions to the Inter-
mediate Report, together with supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings, except as noted herein, are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief, and the
entire record herein, and finds merit in the Respondent's exceptions.
Accordingly, it adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent consistent herewith.
Background
In April 1957, International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America, UAW-AFL-CIO,
and its Local Union No. 155, International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, UAW-
AFL-CIO, herein together referred to as the Union, were jointly
certified as bargaining representative of the employees at the Fraser,
Michigan, plant of The Cross Company, herein referred to as Re-
spondent. A collective-bargaining agreement entered into between the
143 NLRB No. 88.