Cramp Shipbuilding & Drydock Co.

National Labor Relations Board - Board Decisions

Mar 10, 1965

151 N.L.R.B. 504 (N.L.R.B. 1965)

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent make Scariot and Sella whole for loss of earnings suffered as a result
of the discrimination against them , by payment of a sum of money equal to what
they would have earned on the Gilbertsville project between November 15, 1962, and
the date 5 days after notification to them as prescribed above, less net earnings during
said period , net earnings to be computed on a quarterly basis as in F. W. Woolworth
Co., 90 NLRB 289, with interest computed as in Isis Plumbing & Heating Co., 138
NLRB 716 . I shall recommend that Respondent post at its regular meeting place,
and at the Gilbertsville project if it is still being manned by Respondent 's referrals
and Marino is still there engaged , copies of the attached notice marked "Appendix."
On the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Local 542, International Union of Operating Engineers , AFL-CIO, is a labor
organization within the meaning of the Act.
2. Ralph A. Marino is an employer engaged in commerce within the meaning of
the Act.
3. By causing Marino to terminate the employment of Scariot and Sella on the
Gilbertsville project on or about November 15, 1962, because they were not members
of or cleared by it, Respondent Local 542 engaged in unfair labor practices defined
in Section 8 (b) (2) and (1) (A) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 8(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Cramp Shipbuilding & Drydock Company and Thomas J. Jen-
kins, Callistus J. Kelly , George Santoro
Local 329, International Brotherhood of Boilermakers , Iron Ship-
builders, Blacksmiths , Forgers and Helpers of America, AFL-
CIO and Thomas J. Jenkins , Callistus J. Kelly, George Santoro.
Cases Nos. 4-CA-3241, 4-CA-3256, 4-CA-32.90, 4-CB-996, 41-
CB-999, and 4-CB-1013. March 10, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner Paul Bisgyer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in certain unfair labor practices as alleged in the
complaint and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent Union filed
exceptions to the Trial Examiner's Decision and a supporting
brief. The General Counsel filed a brief in support of the Trial
Examiner's Decision and subsequently filed cross-exceptions to the
Trial Examiner's Decision and a brief in support of these cross-
exceptions and in answer to Respondent Union's exceptions and
brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
151 NLRB No. 60.
CRAMP SHIPBUILDING & DRYDOCK COMPANY 505
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
Trial Examiner's Decision, the exceptions, cross-exceptions, and
briefs, and the entire record in these cases, and hereby adopts the
Trial Examiner's findings,' conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board adopts as its Order the Recommended Order
of the Trial Examiner, and orders that Respondent Cramp Ship-
building & Drydock Company, its officers, agents, successors, and
assigns, and Respondent Local 329, International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers
of America, AFL-CIO, its officers, agents, and representatives, shall
take the action set forth in the Trial Examiner's Recommended
Order.
'Contrary to the Respondent Union's contention , we find there Is no Inconsistency In
the Trial Examiner's finding that on January 3 neither Schindler nor Fischer demanded
that the delinquent employees be discharged , and his conclusionary finding that Kelly
was discharged on January 3. It seems clear that what the Trial Examiner meant by
his earlier finding is that no words of discharge were used by Schindler or Fischer on
January 3 , and by his later finding that as a result of Schindler 's refusal to accept
Kelly's reinstatement fee, Kelly's temporary suspension on January 3 in fact became a
final discharge.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all the parties represented , was heard before Trial Examiner
Paul Bisgyer , on May 4 and 5, 1964, in Philadelphia , Pennsylvania, on the consolidated
complaint of the General Counsel I and the separate answers of Cramp Shipbuilding
& Drydock Company, herein called the Respondent Company or Company, and Local
329, International Brotherhood of Boilermakers , Iron Shipbuilders, Blacksmiths,
Forgers and Helpers of America, AFL-CIO, herein called the Respondent Union or
Union. In issue are the questions whether the Respondent Company, at the instance
of the Respondent Union, discharged the Charging Parties Thomas J. Jenkins, Cal-
listus J. Kelly, and George Santoro, for reasons other than their failure to tender
periodic dues required to maintain membership in good standing pursuant to a con-
cededly valid union-security agreement , and thereby violated Section 8(a) (3) and (1)
of the National Labor Relations Act, as amended , and whether the Respondent Union
caused such discrimination in violation of Section 8(b)(2) and (1) (A) of the Act.
At the conclusion of the hearing , the parties waived oral argument but thereafter
filed briefs which were given careful consideration . The Respondents' motions to
dismiss the complaint in its entirety , on which ruling was reserved , are now denied in
accordance with my findings and conclusions set forth below.
Upon the entire record , and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT COMPANY
The Company , a Pennsylvania corporation , operates a shipyard in Philadelphia,
Pennsylvania , for the repair and conversion of ships. In the course of its operations,
1 The charges In Cases Nos . 4-CA-3241 and 4-CB-996 were filed on February 3, 1964;
In Cases Nos . 4-CA-3256 and 4-CB-999 on February 12, 1964; and in Cases Nos. 4-CA-
3290 and 4-CB-1013 on March 16, 1964 Copies of these charges were also served by
registered mail on the respective Respondents on the dates the charges were filed.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company annually performs services valued in excess of $1 million, of which
services exceeding $50,000 in value are performed for enterprises whose annual out-
of-State shipments of goods amount to more than $50,000. The Company also per-
forms services valued in excess of $100,000 per year, which have a substantial impact
on national defense.
I find that the Company is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert
jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
The parties agree, and I find, that the Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The evidence
1. The union-security agreement; the Charging Parties' suspension
for nonpayment of dues
At all material times, the Respondents have been parties to a collective-bargaining
agreement covering the Company's hourly production and maintenance employees
This agreement contains a concededly valid union-security provision requiring, as a
condition of employment, membership in good standing in the union "in accordance
with the Constitution and By-Laws of the Union." 2 Under the Union's constitution,
dues are payable the first day of each month (article 7, section 2) and a member who
permits his dues to become 2 months in arrears is automatically suspended from the
rights and privileges of membership. (Article VI, section 1.) The constitution fur-
ther provides for the reinstatement of such delinquent members upon the payment
of certain prescribed fees .3
It is undisputed that on January 1, 1964,4 employee-members Thomas J. Jenkins,
an outside machinist, Callistus J. Kelly, a pipefitter, and George Santoro, a painter,
were delinquent in the payment of their monthly dues and lost their membership in
good standing. In addition, there were two other individuals whose delinquency was
also called to the Company's attention at the same time but with respect to whom no
claim of discrimination is asserted. One was Dominic Grecco, a paint foreman
excluded from the bargaining unit as a supervisory employee, and the other James
Mock, an outside machinist, who was promoted to a supervisory position shortly
after notification of his dues delinquency.
2. The Union's notification to the Company
of delinquent employees; their layoff
On Friday afternoon, January 3, Walter Schindler, the Union's business agent, tele-
phoned Robert Morrison,5 the Company's timekeeper, after an unsuccessful attempt
2 The complete contractual provision reads, as follows:
All employees shall become members of the Union after a period of thirty (30) days
after the effective date of this Agreement, and all new employees hired hereafter
shall become members of the Union within five weeks and shall remain members of
the Union in good standing in accordance with the Constitution and By-Laws of the
Union as a condition of employment. [Article I, section 3 ]
a Article VI, section 2, entitled "Reinstatement of Members Suspended for Non-
Payments," provides •
In order for such member to be recorded again in good standing, he shall per-
sonally make application for reinstatement with the Lodge having jurisdiction where
he is working, and shall be obligated to pay, in addition to his financial delinquencies,
including all death and disability delinquencies, a reinstatement fee in an amount
determined by the subordinate body, such fee, however, to be not less than Twenty-five
Dollars ($25) and not more than One Hundred and Fifty Dollars ($150). The ap-
plication for reinstatement and the member's reinstatement receipt shall show the
full amount collected and shall bear the full name and signature of the applicant
A Unless otherwise indicated , all dates refer to 1964.
6 Morrison was then new at his job, having first been employed as assistant timekeeper
on November 1, 1963, and thereafter being promoted to timekeeper at the end of Decem-
ber. In the latter capacity, his duties have included keeping time records of employees,
maintaining craft seniority lists, recording hirings, discharges, and layoffs, and keeping
"personnel action memos."
CRAMP SHIPBUILDING & DRYDOCK COMPANY 507
to reach Morrison's superior, Joseph G. McCann, the Company's controller and indus-
trial relations manager. Morrison testified that Schindler advised him that a number
of employees, whose names Schindler's secretary read off, were delinquent in the pay-
ment of their dues and therefore were no longer members in good standing. The
individuals mentioned were Kelly, Jenkins, Santoro, Grecco, and Mock Morrison
further testified that Schindler said absolutely nothing about the named employees'
employment status 6 or the action he (Morrison) was to take and, being new in the
job and not having previously encountered this problem, he turned to Walter Fischer,
the head union steward, who was in the office at the time, and asked him what he was
required to do. According to Morrison, Fischer referred him to the union-security
provision in the bargaining contract, told him that the named employees were not
allowed to work because they were not members in good standing, and added that he
(Morrison) or someone on behalf of the Company should notify these employees of
their dues delinquency. Morrison specifically denied that Fischer told him that these
men "could be discharged or lose their seniority." In answer to his inquiry, Morrison
testified, as to how he would know when the men were back in good standing, Fischer
stated that they would have a "reinstatement receipt."
Schindler's version of his telephone call to Morrison was that, in accordance with
customary procedures where employees defaulted in payment of their dues, he told
Morrison "to knock-off" the above-named employees because they were delinquent.
Although Schindler testified that he meant by his quoted language that the employees
should be discharged, there is other testimony by Schindler to indicate that "knocking
off" an employee did not necessarily mean a permanent discharge but simply a layoff
until the employee remedied his default by paying a reinstatement fee. Thus, Schind-
ler testified that on prior occasions when he had directed the Company "to knock off"
Kelly and other employees because of their dues delinquency, these employees
returned to their jobs without loss of seniority after being reinstated in the Union on
payment of a reinstatement fee. Indeed, this appears to have been the past practice
for handling of delinquent employees.
Concerning the January 3 episode, Steward Fischer gave the following testimony:
He was present in the field office when Timekeeper Morrison received a telephone call
from the Union and was given a list of the delinquent employees. He himself then
spoke over the telephone to the girl in the union office who also read off the names
to him. The "office" then informed him that, according to the collective-bargaining
agreement, the delinquent employees had lost their jobs He thereupon told Morrison
that the named individuals were to be discharged and if the Company wanted to,
they could be retained as new employees. When Morrison inquired whether this was
the proper procedure, Fischer replied in the affirmative and advised Morrison to have
the Company notify the named employees that they had lost their jobs. Fischer
further testified that a short while later Morrison resumed the conversation and asked
him whether he had "to knock [the delinquent employees] off" immediately and that
he answered that the employees could finish the day. Later in his testimony, Fischer
added that he also advised Morrison that the delinquent employees were required to
go to the union hall "to get themselves straightened out down there." Fischer further
testified that Morrison then asked him how he would know whether the delinquent
employees were "straightened out" with the Union and that he (Fischer) answered
that "they would have a receipt, a card, an okay from the union that their affairs
were ironed out there and could be brought back," and retained "as new employees,"
if the Company had work for them.
Morrison, although still employed as timekeeper at the shipyard, impressed me as
a disinterested, forthright witness whose testimony is consistent with the events that
followed the Union's notification of the employees' dues delinquency. Accordingly,
I credit his above account and find that neither Schindler nor Fischer demanded on
January 3 that the delinquent employees be discharged.
Immediately after the foregoing conversations, Morrison informed Foreman
Grecco, who happened to be in the field office at that time, that the Union had notified
him that Grecco was delinquent in the payment of his dues and was no longer a
"A letter received by the Company on January 10 confirming this conversation also
does not state what action the Company was expected to take on account of these
delinquencies . In this connection , Morrison testified that his pretrial affidavit taken
by a Board agent was incorrect insofar as it states that on January 3 Schindler told
him that if these men did not pay up their dues they were subject to discharge through
the loss of seniority under the terms of the Respondents ' contract. In explanation,
Morrison further testified that this was information Industrial Relations Manager
McCann had conveyed to him a week after Morrison ' s above telephone conversation with
Schindler.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member in good standing and that consequently the Company could not permit him
to work until he was reinstated.7 Morrison also told Grecco to convey this informa-
tion to Santoro, who worked under him and was also in default in the payment of
his dues.8 According to Santoro, he first became aware of his dues delinquency the
same Friday afternoon when Steward Fischer so informed him at his work station
and directed him to go to the union hall to get reinstated or "we'll pull your card out
of the rack and you won't be able to go back to work." Fischer denied seeing
Santoro that Friday. In light of the pattern of events herein, I have no reason to
disbelieve Santoro's testimony.9
At the close of their workday, Grecco and Santoro went to the union hall where
they met Fischer. Although Grecco. as a supervisory employee, was unquestionably
excluded from the bargaining unit and not subject to the requirements of the union-
security agreement , he was concerned over retaining his union membership and pro-
tecting his seniority in the event he lost his foreman's position.'0 For this reason,
Grecco asked Fischer what he could do about his dues delinquency and Fischer replied
that he would have to see Schindler the following Monday (January 6). Fischer also
told him that he could not return to work unless he was reinstated and that all the
men who were delinquent in the payment of their dues would lose their seniority.11
On the same Friday, January 3, Timekeeper Morrison also personally notified Kelly
and Mock that they were delinquent in the payment of their dues and would not be
permitted to work until they regained their good standing in the Union.12 Jenkins
received his notification later in the evening on his return from a test run of a vessel
that was undergoing repairs. At that time his foreman, Richard K. Lowery, informed
him that he was laid off because of his dues delinquency and that he was required to
report to the union office to straighten out this matter.13 Morrison, before leaving
the office for the day, also attached a similar message to Jenkins' timecard which the
latter read when he clocked out of the shipyard.
3. The delinquent employees' efforts to regain membership
in good standing on January 6
On the following Monday morning, January 6,14 Foreman Grecco and employees
Santoro, Jenkins, and Kelly went to the union hall separately, to straighten out their
delinquency with Business Agent Schindler, as they were instructed to do. First to
arrive were Grecco and Santoro who entered the hall together. Grecco, with Santoro
at his side, spoke to Schindler about being reinstated. Schindler gave each of them
reinstatement application cards which they filled out and handed back to Schindler
together with the required $100 reinstatement fee Schindler, in turn, issued receipts
to them acknowledging their payments. According to Grecco, he asked Schindler
whether his seniority would be affected by his delinquency if he paid the reinstate-
7 To be sure, Greece, as a supervisory employee, was not subject to discharge for
failing to maintain membership in good standing as required by the union-security con-
tract. Morrison testified that he was unaware of this fact at that time but learned a
week later that he was mistaken in advising Grecco that he could not work until he
remedied his default Grecco also testified that lie knew that "as a foreman . . they
weren't even supposed to pull . . [his] card, but . . [he] just let them go ahead
and do what they wanted to do The union was running everything . . . [a]s far as
our protection" was concerned.
8 The foregoing facts are based on the combined, uncontradicted testimony of Morrison
and Greece which I credit
9 As indicated above and later in this Decision , I find Fischer ' s testimony unreliable
in other respects as well
"Article III of the bargaining agreement provides that "If a leaderinan or foreman
is not retained in that capacity, his original date of hire shall be his seniority "
11 Both Grecco and Santoro testified to their meeting with Fischer on Friday evening
and Grecco testified to the content of the discussions. Fischer apparently denied having
had such a meeting with Grecco and Santoro that Friday I find Greece's and Santoro's
testimony worthy of belief and consistent with their undoubted interest to take im-
mediate steps to preserve their employment rights
12 It appears from Kelly's testimony that just before Morrison notified him of his
delinquency , Steward Fischer made a similar announcement to him and other delinquent
members who were present in the field office on this occasion.
12 This finding is essentially a composite of the significant aspects of the testimony of
Morrison , Jenkins, Lowery, and Yard Superintendent Adrianus Thomassen
14 Union Business Agent Schindler was absent from the union office during the
January 4 and 5 weekend.
CRAMP SHIPBUILDING & DRYDOCK COMPANY 509
ment fee 11 and Schindler replied that he did not think that it would. Santoro, who
did not participate in the conversation, corroborated Grecco except that he testified
that he understood that Grecco spoke for both of them.
Schindler testified that Grecco and Santoro came to the union hall that Monday
morning to straighten out their dues delinquency. He further testified that on this
occasion he told Grecco that he could not stop him from working because of his
supervisory position. As for Santoro, Schindler testified, he informed him that, since
the Company had requested the Union to refer four painters to the shipyard, which
was Santoro's classification, Santoro could return to work but as a new employee.
Schindler also testified that he did not think that his statement concerning Santoro's
status as a new employee elicited any discussion. He specifically denied saying to
Santoro that his seniority would not be affected if he paid his reinstatement fee.
Moreover, he denied saying this to Grecco and asserted that "I wouldn't say it because
I already knocked him off, so he would lose his seniority." 16 On cross-examination
by the General Counsel, however, Schindler conceded that it was very possible that
Grecco asked about the status of his seniority, although he could not honestly say
whether or not Grecco did.
I find Grecco's testimony plausible and trustworthy that, in answer to his inquiry,
Schindler told him that, if he paid his reinstatement fee, he did not think that his
seniority would be affected by his previous failure to pay his dues It is quite clear
that retention of his seniority in the bargaining unit was a prime concern of Grecco
and that understandably he would seek assurance that it would remain unimpaired.
Whether or not Schindler's answer to Grecco was also intended to apply to Santoro
need not be determined since I am convinced that Schindler accepted Santoro's rein-
statement fee unconditionally without the faintest suggestion that his employment
status was not thereby completely remedied. I do not believe, as Schindler testified,
that he informed Santoro that he could not return to work except as a new employee.
Indeed, as hereinafter discussed, Santoro testified, without contradiction, that when
Schindler told him on the following Wednesday, January 8, in the field office in the
presence of others, that he had lost his seniority because of his prior dues default
and that he could only work as a new employee, he angrily demanded that Schindler
refund the $100 reinstatement he had previously paid
Shortly after Grecco and Santoro left the union office, Jenkins arrived. Theme he
discussed his dues delinquency with Schindler who at first told him that he could not
return to work unless he paid the required $100 reinstatement fee. Jenkins stated
that he did not have that money with him, but offered to pay his dues arrears.
Schindler, however, rejected this offer.
Jenkins testified that during his conversation with Schindler, Kelly entered the union
office and Schindler "got all excited." He further testified that Schindler refused to
accept a check that Kelly offered in payment of his reinstatement fee, asserting that
"over [Kelly's] .. . big mouth a lot of men in the yard were going to get in trouble
over him." This was an apparent reference to Kelly's activity in connection with the
elimination of a checkoff provision during the August 1963 contract negotiations,
which will be more fully considered later. Jenkins also testified that Schindler stated
that he would accept Jenkins' money but not Kelly's, although Jenkins repeated that he
did not have the money at that time. Making no headway with Schindler, Kelly and
Jenkins walked out of the union office. According to Jenkins, when he reached his
car, Schindler called him back and told him he could go to work that day, which he
did The next morning, January 7, Jenkins returned to the union office, filled out a
reinstatement application, paid his $100 reinstatement fee, and went to work. As he
was walking to his assigned area in the shipyard, he accosted Yard Superintendent
Thomassen and informed him that it had cost him $100 to go to work
Kelly's account of his efforts to persuade Schindler on January 6 to reinstate him
in the Union is essentially the same as Jenkins' except that it was more detailed. Thus,
Kelly testified that he repeatedly tendered Schindler a $100 bank check in payment
of his reinstatement fee, which Schindler stubbornly refused to accept, asserting that
he was "through" and would never work out of the Union. Kelly also quoted Schind-
ler as calling him "nothing but a-trouble maker" who was the "cause of all these
other men going delinquent" since he was "the one that had ... the check off system
knocked out." Kelly also testified that Schindler told him that he could complain
to the National Labor Relations Board but that it would do him no good.
15 As indicated above, Grecco was concerned about his seniority in the bargaining unit
in the event he lost his foreman's position.
10 It is surprising that Schindler should so testify since, according to him, the phrase
"knocked off" meant discharged, yet he also testified that he knew Grecco could not be
discharged because of his supervisory position
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schindler did not contradict Jenkins' testimony concerning the latter's offer to pay
his dues arrears instead of the required reinstatement fee and his expressed desire to
return to work. However , Schindler denied telling Jenkins that he could resume
working without first paying his reinstatement fee which was necessary in order to
regain membership in good standing.
Regarding Kelly, there is no dispute that he, in the presence of Jenkins , unsuccess-
fully tried to induce Schindler to accept his tendered reinstatement fee According
to Schindler, he refused the tender because, as he then stated to Kelly, Kelly "in the
past . went delinquent too many times " and that the Union was "having too much
trouble as far as dues would go and [that Kelly] . . . didn't look like he wanted to
become a union man and retain his membership " Kelly, however , denied that his
prior delinquencies were mentioned on this occasion . 17 Schindler further testified
that he "possibly" raised his voice to Kelly because Kelly pursued him around the
union office trying to pay his reinstatement fee. Although Schindler denied saying
to Kelly that he was "through" and would never work out of the Union , Schindler
also testified that, as long as he was business agent, he would prevent Kelly from
securing a union book, and emphasized that, even if he no longer held that position,
he would, as he "stated quite often ," continue in these efforts to bar Kelly from union
membership . When questioned whether he also accused Kelly of causing the check-
off to be "knocked out" and other employees to become delinquent, Schindler admitted
that he "would say something on that order" to Kelly because he did "know . .
[that Kelly] was one of the men" who brought up the subject of eliminating the check-
off at a union meeting in anticipation of the August 1963 contract negotiations, while
Schindler was absent from the State. Schindler also testified that he "possibly" told
Kelly that he could go to the National Labor Relations Board but that it would be a
useless effort.
I credit Jenkins ' and Kelly's versions of their meeting with Schindler on January 6
insofar as their testimony conflicts with Schindler. Specifically, I find that Schindler
informed Jenkins that he could return to work that morning, although he did not
have the funds with which to pay his reinstatement fee The likelihood that Schindler
granted this permission is indicated by the testimony of Timekeeper Morrison, whom I
have previously found to be a credible witness, that the same morning Steward Fischer
advised him that Jenkins and Mock, another employee who had defaulted in the
payment of dues, were permitted to resume work. Additionally , in light of the evi-
dence developed in this case , I am not convinced that Schindler told Kelly on Janu-
ary 6 that the reason be refused to accept his proffered reinstatement fee was his prior
delinquencies.
4. The employees' return to the shipyard the same morning
Having paid their reinstatement fee and filled out the necessary reinstatement
application forms at the union office, Grecco and Santoro went to the shipyard
Grecco immediately reported to Timekeeper Morrison that he had paid his reinstate-
ment fee and exhibited the receipt Schindler had given him. After inspecting the
receipt , which Steward Fischer had previously advised Morison would serve as evi-
dence that the delinquency was straightened out, Morrison handed Grecco his time-
card, which he had kept aside with the cards of other delinquent employees. There
is some conflict in the testimony whether at this time Santoro accompanied Grecco
into the field office and also exhibited his receipt to Morrison , as Grecco and Santoro
testified , or whether , as Morrison testified , Grecco had informed him that Santoro was
in the yard and had a similar receipt, and Morrison relied on this representation and
gave Grecco Santoro's timecard. This conflict , however, need not be resolved because,
in either case, Santoro was permitted to return to work on the basis of his having
paid his reinstatement fee. Grecco and Santoro thereupon punched in and resumed
work.
Jenkins also went to work at the shipyard after receiving permission from Schindler
to do so.ls According to Morrison, early that Monday morning, Steward Fischer
informed him that it was all right for Jenkins and Mock to return to work. The
17 As hereafter discussed , the Union contends that it rejected Kelly's tendered rein-
statement fee because of his prior delinquencies.
18 There is a divergence in testimony , which it is not necessary to settle , as to whether
Jenkins reported directly to Timekeeper Morrison before resuming work Jenkins testi-
fied that he did speak to Morrison first and told him that Schindler approved his return
to work and that Morrison stated that he hoped Jenkins was right since he did not want
to get into trouble for letting Jenkins return . Morrison , on the other hand , testified
that Jenkins ' foreman had advised him later in the day that Jenkins was working
CRAMP SHIPBUILDING & DRYDOCK COMPANY 511
evidence shows that these employees did work that day without exhibiting a "rein-
statement receipt." 19 Fischer contradicted Morrison's testimony, protesting that he
did not have any authority to tell Morrison who could or could not work, which, of
course, is plainly contrary to Fischer's entire course of conduct. I credit Morrison,
whom I have found to be a reliable witness.
Unsuccessful in his efforts to regain his membership in the Union, Kelly, like the
others, went directly to the shipyard from the union hall. There he informed Mor-
rison of his inability to achieve reinstatement because, unlike the treatment accorded
the other employees, Schindler refused to accept his tendered $100 reinstatement fee.
In response, Morrison explained to Kelly that he could not permit him to return to
work without first being reinstated in the Union. This was a fact of which Kelly was
well aware.
Kelly thereupon left Morrison to speak to Union President Finn, who was employed
in the shipyard. When he located Finn, Kelly related his experience with Schindler
at the union hall and showed Finn the $100 bank check that he had offered and
Schindler had rejected. Kelly then brought Finn to the field office to have his employ-
ment status clarified. During the course of the ensuing conversation, Kelly stated to
Morrison that his failure to work was due to the Union and that he presumed he had
not lost his job but was off or on leave until he straightened out with the Union.20
Morrison then assured Kelly that he could return to work when he was reinstated
in the Union. Thereafter, Finn invited Kelly to attend a union meeting which was
scheduled to be held the next day, January 7, to meet and discuss his problem with the
International Vice President Moran, who was going to be present.
5. Kelly's conversation with International Vice President Moran on January 7
concerning Schindler's rejection of his tendered reinstatement fee
On Tuesday evening, January 7, before the meeting convened, Kelly met with
International Vice President Moran. In the presence of Union President Finn, Kelly
outlined his entire situation to Moran, including his tender of the reinstatement fee
to Business Agent Schindler and its rejection. Moran commented that so long as
Kelly had a job at Cramp's shipyard, Schindler was powerless to prevent his rein-
statement. Moran also stated that he would take this matter up with Schindler and
Finn. During this conversation Schindler entered the union hall, seized Kelly, ordered
him to leave, and denounced him in foul language. As Kelly was departing, Finn told
Kelly that he would see him in the yard the next morning to apprise him of the out-
come of Moran's discussion with Schindler.
6. The events at the shipyard Wednesday morning, January 8
Early Wednesday morning, before the employees started to work, Schindler, with
the Company's permission, called a meeting of employees at the shipyard to consider
a matter unrelated to the issues here involved. However, toward the close of this
meeting, Schindler raised the question concerning the employees who had defaulted
in the payment of their dues. He referred to his opposition to the elimination of the
dues checkoff in the negotiations which produced the current collective-bargaining
contract and the action of the membership in overruling him and thereby creating a
"hardship on the Local." He thereupon announced that all delinquent employees
"had lost their jobs and ... [as a consequence] had lost their seniority." 21 At about
this point, Schindler, who testified that he had noticed Jenkins in the audience, left
the platform from which he was addressing the employees and proceeded to the field
office to speak to Yard Superintendent Thomassen.
In the meantime, while the above meeting was in progress, Kelly, in accordance
with the suggestion that Union President Finn had made to him the night before,
appeared at the shipyard to learn from Finn the outcome of International Vice Pres-
ident Moran's discussions with Schindler concerning his reinstatement. Observing
that no employees were around, Kelly entered the field office and in Timekeeper Mor-
rison's private office engaged him in a conversation. Kelly related what Moran had
told him Tuesday night, specifically, that Schindler was required to accept Kelly's
19 Foreman Lowery testified that he had verified with either Morrison or Yard Super-
intendent Thomassen that Jenkins was permitted to work on January 6.
20Kelly testified that he was prompted to make this statement because "If you'ie out
for three days , you lose your job."
21 Foreman Grecco quoted Schindler as saying that "[ d]ue to all this trouble that
was going on with Kelly , all the men that were delinquent in their dues will lose their
seniority and would have to be discharged "
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement fee so long as he still had a job at Cramp's shipyard. In the course
of this conversation, Steward Fischer entered Morrison's office, shouting, "All those
men that went delinquent ... are to be fired." 22
Shortly thereafter, Schindler arrived at the field office and spoke to Yard Super-
intendent Thomassen about the employees whose dues delinquencies he had previ-
ously called to the Company's attention. Schindler pointed out that Jenkins was
working; criticized the Company's action in permitting the delinquent employees to
work, contrary to his instructions; and demanded, in words to the effect, that they be
laid off or "knocked off." He also requested Thomassen to summon these employees
to the office.23 Accordingly, Foreman Grecco and Santoro were directed to the field
office, which they did. Schindler then told Santoro that he had lost his job and
seniority. However, Schindler added that since the Company was hiring four new
painters , he could remain on the job as one of them.24 According to Santoro's cred-
ible and undisputed testimony, when Schindler informed him that he had lost his job,
he cursed Schindler for taking his $100 reinstatement fee 2 days before; Grecco
then interjected that Schindler ought to refund the $100 to Santoro and Schindler
answered that it was too late; and as Santoro was leaving, Schindler told Santoro that
he could go back to work but without seniority.25 On this occasion, Schindler also
informed Grecco that he had lost his seniority as a result of his delinquency.
It does not appear that Jenkins was called to the field office, as Schindler had
requested. In any event, Jenkins did not go there. However, the first time he learned
that his job was in jeopardy and that he had lost seniority was when he heard Schind-
ler's announcement at the early morning meeting. This prompted him immediately
to speak to his foreman , Lowery, about it. Although Lowery told him to go to work,
less than an hour later, under instructions from Yard Superintendent Thomassen,
Lowery returned and informed Jenkins that he was laid off because he had lost his
seniority and other machinists in laid-off status now had greater seniority than he and
were therefore entitled to replace him.26 Following his layoff, Jenkins spoke to
Schindler and inquired why he was let go after paying his reinstatement fee. Schindler
replied that he was not the only one to go but that all the delinquent employees were
in the same situation. Schindler also stated that Jenkins had lost his seniority because
of his delinquency and, as a result , other laid-off machinists had priority to his job.
When Jenkins inquired why Mock, another delinquent employee, was retained, Schind-
ler answered that Mock was made a foreman because his services in running certain
engines were needed.
7. The Respondents' formal discharge action
On the same Wednesday, January 8,27 Joseph G. McCann, the Company's controller
and industrial relations manager, received a telephone call from Business Agent
Schindler's secretary to ascertain the name of the individual to whom Schindler had
22 The foregoing findings are based on Kelly's uncontroverted testimony. Morrison
testified that he did not recall what was specifically said in this conversation but that
it seemed to him that "it was more or less the same thing " that Kelly told him on
January 6. I have no reason to doubt the veracity of Kelly's testimony. Admittedly,
he was very anxious to be reinstated in the Union and returned to work and would be
strongly motivated to disclose to Morrison International Vice President Moran's sup-
porting views.
23 Kelly, who was in Morrison 's private office , left during these discussions
u It appears that at this time all the painters on the seniority list were already
employed in the shipyard and the Company needed more employees in this classification.
As discussed earlier, Schindler testified that on January 6, when Santoro paid his rein-
statement fee, he also told Santoro that he could return to work as a new employee
because the Company had requested the Union to send it four painters. If Schindler
had actually made such statements to Santoro at that time-and I have found con-
trariwise-one may well wonder why Schindler should have been angered, as Schindler
indicated he was, that Santoro was working on January 8 and why it was necessary to
repeat to Santoro that he had lost his job but could return to work as a new employee
21 Santoro continued working in the yard until January 13 when he was laid off.
About March 27 the Company recalled him and Santoro worked for 2 more weeks As
of the time of the hearing, this was the last period of employment with the Company.
26 Jenkins was recalled to work in March. At the time of the hearing Jenkins was
again in laid-off status.
27 Although Controller McCann originally testified that the events described above
occurred on Tuesday or Wednesday (January 7 or 8), he later testified that it was on
Wednesday, the time indicated in Timekeeper Morrison's testimony
CRAMP SHIPBUILDING & DRYDOCK COMPANY 513
given the delinquency notice on January 3. Schindler's secretary indicated that she
needed the name for a letter Schindler had directed her to write to the Company to
confirm such notification. Being totally unaware of the facts, McCann checked
with Timekeeper Morrison, his subordinate, who stated that it was he to whom
Schindler had spoken. McCann thereupon communicated this information to Schind-
ler's secretary. Later that day, McCann instructed Morrison to withhold personnel
action on the notification until the confirmatory letter from the Union arrived.
On Friday, January 10, McCann received the letter dated January 7, signed by
Schindler, which reads as follows:
As per telephone conversation with the Field Office on Friday, January 3, 1963,
pertaining to Article 1-Section 3, we are hereby notifying you that the men
listed below are no longer members in good standing with Local 329.
The letter then listed the names of Grecco, Jenkins, Kelly, Mock, and Santoro.25
Although no specific action was requested in the letter, McCann directed Morrison
to proceed with the discharges. On January 16 Morrison prepared the customary
personnel action memo which showed that Kelly, Jenkins, Santoro, and Mock were
discharged on January 8 because they were not in good standing with the Union.
8. Kelly's prior defaults in the payment of dues;
his internal union activities
As discussed in the concluding findings, infra, the Union takes the position that
Business Agent Schindler rejected Kelly's tender of his reinstatement fee because of
his prior dues delinquencies. It is undisputed that before the delinquency here
involved Kelly lost his membership in good standing for nonpayment of dues on
August 1, 1963, and December 1, 1959.29 However, it appears that the August 1963
default was occasioned by the Company's failure to deduct Kelly's dues pursuant to
a checkoff arrangement and to remit them to the Union, as was also the case with
other employees. Incidents of this type probably account for the successful efforts of
Kelly and other employees to have the checkoff eliminated from the current bargain-
ing agreement, over Schindler's opposition. It also appears that a similar checkoff
arrangement was in existence during Kelly's 1959 default while the Company 's pred-
ecessor operated the yard . On both occasions , Kelly was reinstated to membership
on payment of his reinstatement fee.30 Moreover, there is some evidence, although
it is not entirely clear, that Kelly had suffered another default in 1957 or 1958, long
before Schindler was elected business agent for the Union. Significantly, Schindler
was unable to testify whether he had ever warned Kelly that he risked discharge or
loss of seniority should he again become delinquent.31 It is also noted that, although
Schindler testified that a month or two before the delinquencies here in question there
were other employees who lost seniority or were discharged because of their failure
to pay dues, he was unable to give with any degree of certainty the names of such
individuals or information as to whether they had paid or offered to pay reinstatement
fees or whether they had returned to work after their default.
Concerning Kelly's internal union activities, it is clear that Kelly supported the
movement among employees to eliminate the dues checkoff provision from the cur-
rent contract which was negotiated in August 1963 because it was being ineffectually
administered by the Company. As indicated in Schindler's testimony, he regarded
Kelly as one of those responsible for the discontinuance of the checkoff, which worked
a "hardship" on the Union. In addition, during the June 1963 elections, Kelly openly
campaigned against Schindler and Fischer , who were running for business agent and
president, respectively. Schindler won election but not Fischer. Thereafter, Kelly
was an active member of a group that opposed Schindler 's appointment of Fischer as
steward in the shipyard the following November, and as head steward about a month
later. This matter was the subject of discussion at a regular union meeting held on
December 10, 1963. Following this meeting, Kelly and four or five other members
Also listed were two other names which the Company deleted after receiving the
letter. No reason was given for the deletion but it is clear that these individuals are
not involved in this proceeding.
29 It appears that the contracts then in effect also contained a union -security provision
8i Kelly last paid his reinstatement fee on August 20, 1963, after protesting to-
Schindler, and was officially reinstated on September 9, 1963. Before that he was rein-
stated February 24, 1961 , after his 1959 default.
311 am not convinced by Schindler 's unsupported testimony that he believed that
employees were told at quite a few membership meetings that employees would suffer
loss of seniority If they became delinquent in the future.
783-133-66-vol. 151-34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circulated petitions for a special meeting to consider the steward question and the
matter of field dues. This was the meeting that was held on January 7, which Inter-
national Vice President Moian attended and from which Kelly was ousted by
Schindler.
B. Concluding findings
1. Contentions of the parties; applicable precedent
The General Counsel contends that the record establishes that the Respondent
Company, at the instance of the Respondent Union and with knowledge of the facts,
discriminatorily discharged Jenkins, Santoro, and Kelly in violation of Section 8(a) (3)
and (1) of the Act and that the Union violated Section 8(b)(2) and (1)(A) of the
Act by causing such discrimination. It is his position that the Respondents may not
rely on their union-security agreement to justify these discharges. Specifically, with
respect to Jenkins and Santoro, the General Counsel argues that the Union had waived
their dues delinquency when prior to their discharge on January 8 it had accepted
their tendered reinstatement fees which were required to regain membership in good
standing, and permitted them to return to work without any suggestion that their
seniority or other job rights had been forfeited. With respect to Kelly, the General
Counsel urges that he was discharged for reasons not sanctioned by the Act, namely,
his participation in the successful employee effort to eliminate the dues checkoff provi-
sion from the current contract, his election campaign activities against Business Agent
Schindler and Steward Fischer in June 1963, and his opposition to Schindler's subse-
quent appointment of Fischer as steward. As an additional ground for finding dis-
crimination against Kelly, the General Counsel contends that the Union's refusal to
accept Kelly's tendered reinstatement fee unlawfully deprived him of the same
opportunity available to the other delinquent employees to remedy his default.
The Respondents, on the other hand, rely on their union-security agreement to
vindicate their action. They claim that the Company simply complied with its con-
tractual obligation and the Union's lawful request when it discharged Jenkins, San-
toro, and Kelly on January 3 solely because they failed to pay their periodic dues
necessary to maintain membership in good standing in the Union, as required by
the union-security agreement . The Respondents argue that these discharges were
not illegalized by the Union's subsequent acceptance of Jenkins' and Santoro's belated
tenders of their reinstatement fees or by permitting them to return to work, which
the Respondents insist was , as new employees without their accrued seniority. As
for the rejection of Kelly's tendered reinstatement fee, the Union maintains that it was
within its rights recognized by the proviso to Section 8(b) (1) (A) of the Act 32 to
deny him membership. Such rejection, the Respondents assert, did not interfere
with Kelly's right to seek new employment with the Company. In any event, the
'ompany argues that it may not be found to be in violation of the Act as it had no
reasonable grounds to believe that the Union requested the discharges of the named
employees for reasons not authorized by the Act.
It is settled law that an employee subject to a valid union shop clause, such as that
here involved, is obligated, as a condition of employment, to maintain membership
in the contracting union by payment of the required periodic dues. Under the Board's
recent rulings,33 an employee who fails to perform the obligation thus imposed on
him cannot escape the penalty of discharge if he belatedly tenders his dues after the
union had already requested his discharge because of his dues delinquency, even
though at the time of the tender the employer had not yet acted on the union's
request. In the Board's opinion, a contrary holding would weaken the effective and
orderly enforcement of union-security agreements sanctioned by Congress. However,
the Board has made it lucidly clear that in such cases of tender after request it still
intended to "look to the record to determine the real reason for the parties' subse-
quent conduct." 34 While an unaccepted belated tender of delinquent dues after a
discharge request may not bar compliance by an employer in a proper case, the Board
has also recognized that a different result may be justified where the union accepts
and retains the delinquent employee's proffered dues before the company discharged
him. The circumstances surrounding the acceptance and retention of the dues may
be such as to warrant the inference that the union waived its right to insist on the
32 In pertinent part, the proviso to Section 8(b) (1) (A) provides that a labor orga-
nization has the right "to prescribe its own rules with respect to the acquisition or
retention of membership therein "
33 General Motors Corporation, 134 NLRB 1107, overruling to this extent Aluminum
Workers International Union, Local No 135, AFL (The Metal Ware Corporation), 112
NLRB 619, 621. See also Acme Fast Freight, Inc., 134 NLRB 1131.
11 General Motors Corporation, supra, at 1109
CRAMP SHIPBUILDING & DRYDOCK COMPANY 515
discharge . 35 This seems to be but an application of the statutory prohibition against
the use of a union-security agreement to justify a discharge for reasons other than
the nonpayment of periodic dues and initiation fees uniformly required . Under the
language of the Act , "[n]o affirmative finding as to the cause of the discharge is
needed." 36
2. Santoro 's and Jenkins' discharge
Applying the foregoing principles to Santoro 's and Jenkins ' cases , I find that their
discharge was violative of the Act . From the findings I have heretofore made, it is
clear that their employment was terminated , on the Union 's demand, on January 8,
and not on January 3 , as the Respondents insist. I have no doubt that on the latter
date the instructions that Business Agent Schindler and Steward Fischer gave to
Timekeeper Morrison plainly indicated that the delinquent employees were to be
temporarily laid off or suspended until they straightened out their delinquency with
the Union 37 Indeed , Fischer informed Morrison that he could rely on a "reinstate-
ment receipt" issued by the Union as evidence that the delinquent employees had
straightened out with the Union and could return to work. That only a temporary
suspension of employment was intended by the Union 's demand unless the employee
failed to rectify his default is also shown by the fact that it was its consistent past
practice to afford delinquent employees of the Company an opportunity to regain
their membership in good standing by the payment of a reinstatement fee.38 More-
over, the record establishes that when such employees were restored to good standing
their seniority and other job rights were not impaired . Schindler 's testimony that
this practice was changed in October 1963 was far from convincing On the con-
trary, I find that the Union 's acceptance of Santoro's and Jenkins' reinstatement fees
was without the slightest suggestion that they had lost their jobs because of their delin-
quency or that their job tenure or seniority had otherwise been forfeited . Significantly,
when Santoro was informed for the first time on January 8 that he was discharged but
could remain as a new employee , he violently protested to Schindler and demanded
a refund of his $100 reinstatement fee, which Schindler refused to make.
As previously discussed , there is no question that Santoro paid his $100 reinstate-
ment fee on January 6 and Jenkins on January 7 Both were permitted to return to
work on January 6 . I find that the Union 's acceptance of their reinstatement fees
was without any understanding or qualification that their job tenure or seniority rights
were in any manner prejudiced by their delinquency . In these circumstances and in
light of all the evidence , I find that the Union , by accepting and retaining the tendered
reinstatement fees, waived its right to demand the discharge of Santoro and Jenkins
for failing to comply with the terms of the union-security agreement.39 As the Com-
pany was fully aware of these facts and those surrounding Santoro's and Jenkins'
initial layoff and subsequent discharge after their return to work, I find that it had
reasonable grounds to believe that their discharge was requested for reasons other
°Colgate-Palmolive Company , 138 NLRB 1037 , F. J Burns Diayinq. Inc , 129 NLRB
252, Producers Transport , Inc, 125 NLRB 1056, enforcement denied on other grounds
2S4 F 2d 438 (CA 7) ; International Woodworkers of America , AFL-CIO, Local Union
13-1733 ( Ralph L Smith Lumber Co.), 119 NLRB 1681 , enfd 264 F . 2d 649 (CA. 9)
Sa International Union of Electrical , Radio and Machine Workers , AFL-CIO, Frigidare
Local 801, 307 F 2d 679, 684 (CAI) C ), cert denied 371 U S 936.
37 During the course of Steward Fischer ' s cross -examination by the General Counsel
conceimng the requirement that delinquent employees straighten out their delinquency
with the Union before they could return to work , Fischer voiced his personal disapproval
of that practice in these words: "If I was a business agent , I'd throw . [the delin-
quent employees ] the hell out of the Local for not paying their dues and give their job
to somebody else."
"This is in accord with the view International Vice President Moran expressed to
Kelly that Schindler lacked the authority to prevent him from being reinstated as long
as lie had a j ob at the shipyard Moreover, if Schindler ' s demand contemplated a
peunanent severance of employment , it would impugn his testimony that he did not seek
the discharge of Foreman Grecco, one of the named delinquent employees , because be was
outside the bargaining unit and not subject to the union -security agreement.
19111 view of my determination herein, I consider it unnecessary to pass upon the
General Counsel ' s contention based on American Bakery and Confectionery Workers In-
ternational Union, AFL-CIO, Local 173 ( Continental Baking Company , Inc.), 128 NLRB
937. 940 , that the Union unlawfully caused the discharge of Santoro and Jenkins as a
means of concealing the illegality of Kelly's discharge.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than their delinquency.40 Accordingly, I conclude that the Union violated Section
8(b) (2) and (1) (A) of the Act by causing the Company to discharge Santoro and
Jenkins and that the Company violated Section 8 (a) (3) and (1) of the Act by acced-
ing to the Union's demand.
3. Kelly's discharge
Coming to Kelly's case, I find that he, unlike Santoro and Jenkins, was discharged
on January 3, in accordance with the Union's instructions to the Company not to allow
the delinquent employees to return to work unless they straightened out with the
Union. Plainly, the Union, by rejecting Kelly's tendered reinstatement fee, had no
intention of affording Kelly the same opportunity to be reinstated in the Union, and
thereby in his job, as that available to other delinquent employees of the Company
under the Union's then existing practice. As far as the record shows, this was unprec-
edented. The Union, however, insists that this denial of reinstatement was its
privilege. It is true, as the Union argues, that the proviso to Section 8(b) (1) (A) of
the Act recognizes a labor organization's right to "prescribe its own rules with respect
to the acquisition or retention of membership therein" and therefore the Union cannot
be compelled to reinstate Kelly.as a member. However, it is equally beyond con-
troversy that the Act also prohibits use of a union-security agreement to deprive an
employee of his job rights if membership "was not available to ... [him] on the same
terms and conditions generally applicable to other members" or if "membership was
denied or terminated for reasons other than the failure of the employee to tender the
periodic dues and the initiation fees uniformly required as a condition of acquiring or
retaining membership." 41
The Respondents seek to excuse this disparate treatment of Kelly because of his
record of prior dues delinquencies. However, as discussed above, Kelly was in default
in 1959, and the next time in August 1963.42 On the latter occasion, the Company
failed to deduct Kelly's dues from his wages and to remit them to the Union pursuant
to a checkoff system then in effect in the shipyard. His default in 1959 seems to have
occurred under similar circumstances when the Company's predecessor operated the
yard and before Business Agent Schindler was elected to office I find it difficult
to believe that his prior delinquencies actually dictated Schindler's treatment of
Kelly. Significantly, they were not even mentioned on January 6 when Schindler
rejected Kelly's tendered reinstatement fee; nor was Kelly ever forewarned that a
repetition of his delinquency would result in loss of his employment in the shipyard
or his job rights. In these circumstances, it appears to me that the Union seized upon
Kelly's past delinquencies as a pretext to conceal its true motivation which was quite
clearly revealed, at least in part, in Schindler's outbursts in response to Kelly's efforts
to persuade him to accept his tendered reinstatement fee on January 6. On that
occasion, Schindler called Kelly a "trouble maker" who was responsible for the
delinquency of all the employees who had failed to pay their dues It is undeniable
that these remarks referred to Kelly's support of the successful movement during the
August contract negotiations to eliminate the dues checkoff from the current contract.
Clearly, Schindler viewed the termination of the checkoff as creating a "hardship"
for the Union. In addition to this, it is also highly probable that Kelly's election
campaign activities in June 1963 against Schindler and Steward Fischer and his
opposition to Schindler's appointment of Fischer as steward in November 1963, and
as head steward the following month also contributed to Schindler's decision to reject
Kelly's reinstatement fee, acceptance of which would have entitled Kelly to return to
work under the same terms and conditions as before his layoff.43 The fact that other
employees had also engaged in the foregoing activities against whom Schindler had
not taken reprisal action does not exculpate the discrimination against Kelly. Not
only is there no evidence that such employees had defaulted in the payment of their
40 Colgate-Palmolive Company, supra; F J Burns Draying, Inc., supra The cases
relied upon by the Company to relieve it of liability are clearly factually distinguishable.
11 Section 8(a) (3) of the Act, Radio Officers' Union of the Commercial Telegraphers
Union v. N L.R B. (A H. Bull Steamship Company), 347 U S. 17, 40.
42 As previously discussed, the record is not too clear concerning another default prior
to 1959, when Kelly was employed by another company
4° I am not convinced by Schindler's testimony that he was not antagonistic to Kelly.
As evidence of his friendly attitude toward Kelly, Schindler alluded to the fact that
several times he had helped Kelly pay his dues However, he also testified that the most
recent occasion was "possibly" in April or May 1963. It is also noted that such asserted
assistance antedated Kelly's anti-Schindler activities.
CRAMP SHIPBUILDING & DRYDOCK COMPANY 517
dues which would furnish the opportunity for discrimination, but the Act does not
require a wholesale discrimination before subjecting the union and the employer to
its restraints 44
Finally, the Respondents' contention that Kelly's failure to apply for work with
the Company as a new employee relieved them of liability under the Act does not
merit discussion. Certainly the Act does not impose such an obligation on the victim
of discrimination. Moreover, it would have been a futile gesture for Kelly to seek
employment with the Company, especially since the Respondents never revealed any
disposition to permit his return.
Accordingly, I find that the Union, in violation of Section 8(b) (2) and (1) (A)
of the Act, caused the Company to discriminate against Kelly. As the Company was
fully aware of the Union's rejection of Kelly's tendered reinstatement fee and did not
bother to verify the Union's reason, and as the Company was also familiar with the
facts and circumstances surrounding the concurrent discriminatory treatment the
Union accorded to Santoro and Jenkins, I find that the Company had reasonable
grounds to believe that membership was not available to Kelly on the same terms
and conditions generally applicable to other company employees and that his dis-
charge was for reasons other than his failure to tender periodic dues. I therefore
conclude that Kelly's discharge constituted a violation of Section 8 (a) (3) and (1) of
the Act on the Company's part.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III, above, occurring in con-
nection with Respondent Company's operations described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and its free flow.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, I recommend that the Respondent cease and
desist from engaging in the unfair labor practices found and take certain affirmative
action designed to effectuate the policies of the Act.
To redress the discriminatory discharge of Kelly, I recommend that the Respond-
ent Company offer him immediate and full reinstatement to his former or a sub-
stantially equivalent position, without prejudice to his seniority or other rights and
privileges. As for Santoro and Jenkins, who were also discriminatorily discharged,
they were permitted to return to work but as new employees without their previously
accrued seniority and as a result suffered layoffs they would not have otherwise experi-
enced. To remedy this situation, I recommend that the Company restore these two
employees to their former or substantially equivalent positions, together with the
seniority and rights and privileges they would have enjoyed had discrimination not
been practiced against them. Since the Respondent Union caused these discharges, I
recommend that the Union notify the Company in writing, and furnish a copy of such
notice to Kelly, Santoro, and Jenkins, that it has withdrawn its objections to their
employment without prejudice to their seniority, rights, and privileges, and that it
requests such unqualified reinstatement.
As found above, both Respondents are legally responsible for the discrimination
suffered by the named employees, although the brunt of the guilt rests upon the Union.
In accordance with well-established precedent, I recommend that the Union and the
Company jointly and severally make Kelly, Santoro, and Jenkins whole for any loss of
pay they may have suffered by reason of the discrimination against them by the pay-
ment to each of them of a sum of money equal to that which he normally would have
earned from the date of the discrimination against him to the date of the Company's
offer of reinstatement, less his net earnings during the said period.45 However, the
Union's liability shall be tolled 5 days after it serves the written notice of withdrawal
of objections mentioned above. Backpay shall be computed with interest on a
quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, 291-294, and Isis Plumbing & Heating Co., 138 NLRB 716. To
facilitate the computation, as well as to clarify the named employees' right to rein-
44 N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 P. 2d 272, 276 (C A.
5), enfg. 89 NLRB 538, cert. denied 344 U S. 865
45 Of course , if Kelly, Santoro, or Jenkins would have been laid off for economic rea-
sons at any time after their original discriminatory discharge , notwithstanding the reten-
tion of their accrued seniority , they would not be entitled to backpay for such period of
legitimate layoff. By the same token , moneys earned by them during such period would
not be Included in the computation of backpay.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement, the Company shall make available to the Board, upon request, payroll and
other records necessary and appropriate for that purpose. I further recommend'
that the Company notify these employees of their rights to reinstatement on applica-
tion if they are serving in the Armed Forces of the United States. The posting of
appropriate notices is also recommended.
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. The Respondent Company is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization within the meaning of Section,
2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Callistus J.
Kelly, George Santoro, and Thomas J. Jenkins as to encourage membership in the•
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) of the Act.
4. By causing the Respondent Company thus to discriminate against the above-
named employees , 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.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and upon the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is ordered that:
A. The Respondent, Cramp Shipbuilding & Drydock Company, Philadelphia,
Pennsylvania, its officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Encouraging membership in Local 329, International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers of America, AFL-CIO,
by discharging employees or in any other manner discriminating against them in regard
to hire or tenure of employment or any teim or condition of employment, except to
the extent permitted by the proviso to Section 8 (a) (3) of the Act.
(b) In any like or related manner interfering with, restraining, or coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer Callistus J. Kelly, George Santoro, and Thomas J. Jenkins immediate
and full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, as provided in the section of
the Trial Examiner's Decision entitled "The Remedy."
(b) Jointly and severally with the Respondent Union make whole the above-named
employees for any loss of earnings suffered by them by reason of the discrimination,
as provided in the section of the Trial Examiner's Decision entitled "The Remedy "
(c) Notify the above-named employees, if they are serving in the Armed Forces
of the United States, of their right to full reinstatement 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.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports and all other records necessary to analyze the
amount of backpay due and the right to reinstatement under the terms of this Recom-
mended Order.
(e) Post at its shipyard in Philadelphia, Pennsylvania, copies of the attached
notice marked "Appendix A." 46 Copies of said notice, to be furnished by the
Regional Director for Region 4, shall, after being duly signed by the Respondent
Company's representative, be posted by the Respondent Company immediately upon
receipt thereof and maintained by it for a period of 60 consecutive days thereafter in
411n the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be en-
forced by a decree of a United States Court of Appeals, the words "a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"a Decision and Order "
CRAMP SHIPBUILDING & DRYDOCK COMPANY 519
conspicuous places, including all places where notices to employees are customarily
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.
(f) Post at the same places and under the same conditions as set forth in paragraph
(e), above, and as soon as they are forwarded by the Regional Director, copies of
the Respondent Union's attached notice marked "Appendix B."
(g) Mail to the Regional Director for Region 4 signed copies of Appendix A
for posting by the Respondent Union at its meeting hall and offices. Copies of said
notice, to be furnished by the Regional Director, shall, after being duly signed by a
representative of the Respondent Company, be forthwith returned to the Regional
Director for such posting.
(h) Notify the Regional Director for Region 4, in writing, within 20 days
from the receipt of the Trial Examiner's Decision, as to what steps the Respondent
Company has taken to comply herewith 47
B. The Respondent, Local 329, International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers of America, AFL-CIO, Philadelphia,
Pennsylvania , its officers , representatives , and agents , shall:
1. Cease and desist from:
(a) Causing or attempting to cause the Respondent Cramp Shipbuilding & Dry-
dock Company to discriminate against employees in violation of Section 8(a)(3)
of the Act.
(b) In any like or related manner restraining or coercing employees of the
Respondent Company in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following action which is necessary to effectuate the policies of the Act
(a) Jointly and severally with the Respondent Company make whole Callistus J.
Kelly, George Santoro, and Thomas J. Jenkins for any loss of pay suffered by them
by reason of the discrimination, as provided in the section of the Trial Examiner's
Decision entitled "The Remedy."
(b) Notify the Respondent Company and the above-named employees in writing
that it withdraws its objections to the above-named employees' employment and
requests the Respondent Company to offer them reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority or other rights
and privileges previously enjoyed.
(c) Post at its meeting hall and offices copies of the attached notice marked
"Appendix B." 48 Copies of said notice, to be furnished by the Regional Director
for Region t, shall, after being duly signed by the Respondent Union's representative,
be posted by the Respondent Union immediately upon receipt thereof and maintained
by it for a period of 60 consecutive days thereafter in conspicuous places, including
all places where notices to members are customarily posted. Reasonable steps shall
be taken by the Respondent Union to insure that said notices aie not altered, defaced,
or covered by any other material.
(d) Post at the same places and under the same conditions as set forth in paragraph
(c) above, and as soon as they are forwarded by the Regional Director, copies of the
Respondent Company's attached notice marked "Appendix A."
(e) Mail to the Regional Director for Region 4 signed copies of Appendix B for
posting by the Respondent Company at its shipyard. Copies of said notice, to be
furnished by the Regional Director, shall, after being signed by the Respondent
Union's representative, be forthwith returned to the Regional Director for such
posting.
(f) Notify the Regional Director for Region 4, in writing, within 20 days from the
receipt of the Trial Examiner's Decision, what steps the Respondent Union has taken
to comply herewith49
47In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director , In writing, within 10 days
from the date of this Order, what steps the Respondent Company has taken to comply
herewith "
48 See footnote 46.
4e See footnote 47
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that-
WE WILL NOT encourage membership in Local 329, International Brotherhood
of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers of Amer-
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ica, AFL-CIO, by discharging employees or in any other manner discriminating
against them in regard to hire or tenure of employment or any term or condition
of employment, except to the extent permitted by the proviso to Section 8 (a) (3 )
of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7 of the Act.
WE WILL offer Callistus J. Kelly, George Santoro, and Thomas J. Jenkins
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to the seniority or other rights and privileges they
previously enjoyed.
WE WILL, jointly and severally with Local 329, International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers of America,
AFL-CIO, make whole each of the above-named employees for any loss of
earnings suffered by them by reason of the discrimination, as provided in the
section of the Trial Examiner's Decision entitled "The Remedy."
All our employees are free to become, remain, or refrain from becoming or remain-
ing, members of the above-named Union, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condition
of employment, as authorized by Section 8(a)(3) of the Act.
CRAMP SHIPBUILDING & DRYDOCK COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify Callistus J. Kelly, George Santoro, and Thomas J. Jenkins,
if presently serving in the Armed Forces of the United States, of their right to full
reinstatement 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, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 735-2612, if they have any question concerning this notice or com-
pliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT cause or attempt to cause Cramp Shipbuilding & Drydock
Company to discriminate against employees in violation of Section 8(a)(3) of
the Act.
WE WILL NOT in any like or related manner restrain or coerce employees of
Cramp Shipbuilding & Drydock Company in the exercise of the rights guaranteed
in Section 7 of the Act.
WE WILL, jointly and severally with the above-named Company, make whole
Callistus J. Kelly, George Santoro, and Thomas J. Jenkins for any loss of pay
suffered by them by reason of the discrimination, as provided in the section of
the Trial Examiner's Decision entitled "The Remedy."
WE WILL notify the above-named Company and employees in writing that we
withdraw our objections to the employment of these employees by the Company
and that we request the Company to offer these employees reinstatement to their
former or substantially equivalent positions , without prejudice to the seniority
or other rights and privileges previously enjoyed by them
LOCAL 329, INTERNATIONAL BROTHERHOOD OF BOILER-
MAKERS, IRON SHIPBUILDERS , BLACKSMITHS, FORGERS
AND HELPERS OF AMERICA, AFL-CIO,
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.
THE GREIF BROS. COOPERAGE CORP., ETC. 521
Employees may communicate directly with the Board's Regional Office, 1700
Bankers Securities Building, Walnut & Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 735-2612, if they have any question concerning this notice or com-
pliance with its provisions.
The Greif Bros . Cooperage Corp. ( Seymour & Peck Division)
and United Steelworkers of America , AFL-CIO. Case No.
1-CA-4489. March 10, 1965
DECISION AND ORDER
On September 30, 1964, Trial Examiner Sidney Sherman issued
his Decision in the above-entitled case, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support thereof. The
General Counsel filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
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
Trial Examiner's Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner, and orders that Respondent, The
Greif Bros. Cooperage Corp. (Seymour & Peck Division), its
officers , agents, successors , and assigns, shall take the action set
for in the Trial Examiner's Recommended Order, with the follow-
ing addition :
Add the following to paragraph 2(a) of the Trial Examiner's
Recommended Order :
"Notify the employees entitled to reinstatement, if presently
serving in the Armed Forces of the United States, of their right
to full reinstatement upon application in accordance with the
151 NLRB No. 61.