Hribar Trucking, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1963

143 N.L.R.B. 327 (N.L.R.B. 1963)

HRIBAR TRUCKING, INC. 327
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8(a) (3) of the Act.
MARYLAND CITY CORPORATION,
Employer.
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.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, 21202, Telephone No. 752-
8460, Extension 2100, if they have any question concerning this notice or compliance
with its provisions.
APPENDIX D
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
Relations Act, as amended, we hereby notify our employees that-
WE WILL NOT Solicit, induce, or assist our employees to revoke their previ-
ously executed cards authorizing Baltimore Building and Construction Trades
Council, AFL-CIO, to represent them for the purpose of collective bargaining,
or in any like or related manner interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in Section 7 of the Act, except to the
extent permitted by Section 8(a)(3) of the Act.
KRUPNIK BROTHERS, INC.,
Employer.
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.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, 21202, Telephone No. 752-
8460, Extension 2100, if they have any question concerning this notice or compliance
with its provisions.
Hribar Trucking, Inc. and Milton Frankwick and Teamsters
and Chauffeurs Union Local No. 43 of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Party to the Contract. Case No. 13-CA-
5041. June 28, 1963
DECISION AND ORDER
On March 8, 1963, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding 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 Intermediate
Report. Thereafter, exceptions to the Intermediate Report and briefs
in support thereof were filed by the Respondent and the Party to,the
Contract, hereinafter referred to as the Union.' The General Counsel
filed a brief in support of the Intermediate Report.
1 By Trial Examiner's order dated November 27, 1962, the Union's petition to inter-
vene and participate to the extent of its interest was granted
143 NLRB No. 46.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Rodgers, Leedom , and Fanning].
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 briefs , and the entire record in the
case, and hereby adopts the findings, conclusions , and recommenda-
tions of the Trial Examiner , except to the extent modified herein.
The complaint alleged and the Trial Examiner found that the Re-
spondent violated Section 8 ( a) (3) and (1) of the Act by discrimina-
torily discharging employee Milton Frankwick on June 2, 1962, be-
cause he had not made application for membership in, or become a
member of, the Union .' In agreement with the Trial Examiner, we
find that the record establishes that the Respondent discriminatorily
discharged Frankwick on June 2, 1962 , because he was not a member
of the Union.
On September 12, 1961, representatives of the Respondent and the
Union executed a collective -bargaining agreement which contained
certain union -security and jurisdiction clauses in effect when Frank-
wick was discharged . Frankwick worked for the Respondent as a
truckdriver for parts of 1957 and 1961, and again from April to
June 2, 1962 . He was never a member of the Union.
During the period from January to August 1962 , Hribar was noti-
fied six times by Leo Lotharius , the Union 's business agent, that its em-
ployees were behind in their union dues and that some of them had ,not
yet joined the Union. About 2 weeks prior to Frankwick 's discharge
the Respondent posted its contract with the Union and a notice which
read : "Notice to all Drivers, Union Hall will be open on Saturday
morning . . . And all members , anyone not belonging to the Union
should go down and get their dues paid up." In addition , the contract
was posted , at least, in April, May, and June of 1962.
On June 2, 1962 , Leo Hribar , president of the Respondent, dis-
charged Frankwick after receiving a telephone call from Lotharius,
who advised him, among other things , that Frankwick was not a mem-
ber of the Union . When Leo Hribar discharged Frankwick , he asked
Frankwick : "How come you didn't join the Union , I asked you a long
time ago." Frankwick said lie "had got away with it last year and he
thought he could get away with it another year."
Moreover, the record contains two admissions of Leo Hribar , presi-
dent and controlling stockholder of the Respondent , which were
2 See discussion infra.
3 The complaint further alleged that the union security and jurisdiction clauses con-
tained in the agreement between the Respondent and the Union were not authorized by
Wisconsin law. As we find herein that the foregoing union-security clause does not com-
ply with Section 8(a) (3) of the Act, we do not find it necessary to decide whether or not
it was authorized under Wisconsin law.
HRIBAR TRUCKING, INC. 329
admitted into evidence as General Counsel's Exhibits Nos. 3 and 4 4
One is contained in a pretrial affidavit made to a representative of the
Board which reads in part :
Frankwick came in late that afternoon (June 2, 1962). I told
him he was through. I told him-how come you didn't join the
union-I asked you to a long time ago. I told him I had a sign
up saying he had to join the union. I asked him if he saw the
sign the year before. I told him if he couldn't obey the rules I
would have to let him go. Frankwick told me had [sic] had
seen the sign the year before and also this year but he didn't see
any need to pay the union his money.
Leo Hribar also admitted in proceedings before the Industrial Com-
mission of Wisconsin that one reason Frankwick was discharged was
that: "He would not follow the rules of the company. The contract
with the company states we have to have union men."
Consequently, as we have found that the Respondent violated Sec-
tion 8(a) (3) and (1) of the Act by discriminatorily discharging
Frankwick pursuant to its contract with the Union, we shall enter an
appropriate order requiring the Respondent to reinstate Frankwick
with backpay.1
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications : 6
1. Paragraph 1(c) shall be amended by adding the word "other"
after the words "In any" therein.
4 General Counsel's Exhibit No . 4 is an authenticated copy of a transcript of proceed-
ings conducted before the Industrial Commission of Wisconsin , and is the basis of Hribar's
statement to the Commission . These proceedings concerned Wisconsin unemployment com-
pensation and involved the issue of whether Hribar discharged Frankwick because of mis-
conduct or because he was not a member of the Union. We find that both statements in
the text which were introduced by the General Counsel as admissions against interest are
admissible , and may be used as substantive evidence as well as for purposes of impeach-
ment. (See 3'Wigmore, Evidence §§ 1048, 1051 (3d ed ) , C. A. Rafeland Co., 131 NLRB
1191, 1194 , footnote 7; and Pekelis v . Transcontinental & Western Air, Inc, 187 F 2d
122 (C.A. 2).)
5 We find that the Trial Examiner erroneously precluded the Respondent from asserting
the union-security clause ,of its collective-bargaining contract as a 'cond'itional, alternative
defense in the event the Trial Examiner found that the Respondent discharged Frankwick
because he was not a member of the Union . In this regard , the record shows that the
Trial Examiner would not consider the contract as a defense unless the Respondent was
willing to state unconditionally that one of the reasons Frankwick was discharged was
because he failed to become a member of the Union as the contract required . However,
we also find that the foregoing error was not prejudicial , because the contract could not
be a defense to the discriminatory discharge as it contains a union -security clause which
does not 'comply with Section 8(a) (3) of the Act. The clause unlawfully provides in part
that new employees "shall make application for membership in the Union immediately
upon commencement of the term of employment ." See Philadelphia Sheraton Corporation,
136 NLRB 888 , 889 ; and Imperial Wire Company, Inc., 118 NLRB 775, 778.
e We also hereby amend paragraph 3 of the Trial Examiner 's Remedy which is incorpo-
rated into his Recommended Order, adopted herein, by adding the words "per annum"
Immediately after the phrase "6 percent" therein.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Paragraph 2 (b) shall be deleted and the following paragraph
substituted therefor :
(b) Preserve and, upon request, make available to the Board
or its agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel records and
reports, and all other records necessary to analyze the amount of
backpay due under the terms of this Order.
3. The notice shall be amended by deleting paragraph 4 thereof
and substituting therefor the following paragraph:
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist the
above Union, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage in
concerted activities for the purposes of collective bargaining or
mutual aid or protection, or to refrain from any or all such activi-
ties, 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 in Section 8(a) (3) of
the Act.
4. The notice shall also be amended by deleting the "Note" thereof
and substituting therefor the following "Note":
NoTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On July 30, 1962 , a charge was filed by Milton Frankwick , an individual. On
October 31, 1962, the General Counsel of the National Labor Relations Board
issued his complaint and notice of hearing thereon . On November 21, 1962, the
Respondent filed its answer . The complaint alleges and the answer denies that em-
ployee Milton Frankwick was discharged on June 2, 1962, because he had not joined
Local No. 43 , Teamsters , and in violation of Section 8(a)(1) and ( 3) of the Na-
tional Labor Relations Act, as amended . Pursuant to notice, a hearing was held
on January 3 and 4 , 1963, in Racine , Wisconsin , before Trial Examiner C. W.
Whittemore.
At the hearing all parties were represented , and were afforded full opportunity to
present evidence pertinent to the issues , to argue orally, and to file briefs . Briefs
have been received from the Respondent , General Counsel, and the Intervenor.
Disposition of the motion to dismiss the complaint, upon which ruling was reserved
at the hearing , is made by the following findings, conclusions , and recommendations.
After the close of the hearing a motion to correct the transcript was received
from General Counsel . Service of said motion upon other parties is shown upon its
face. No objections having been received , said motion is hereby granted and is made
a part of the record.
Upon the record thus made , and from his observation of the witnesses , the Trial
Examiner makes the following:
HRIBAR TRUCKING, INC.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
331
Hribar Trucking, Inc.,' is a Wisconsin corporation, with its principal office and
trucking terminal at Caledonia, Wisconsin.
During the year preceding issuance of the complaint the Respondent engaged in
transportation operations which constitute a link in the chain of interstate commerce
and from such operations it derived a gross revenue of more than $100,000.
During the same period it derived a gross income of more than $100,000 for
services rendered under contractual arrangements with various enterprises, including
Consumers Company, Division of Vulcan Materials Company, for the transportation
of building materials including sand, stone, and gravel which was used in the con-
struction of highways and expressways within the State of Wisconsin, which high-
ways and expressways are essential links in the interstate highway system.
Consumers Company, Division of Vulcan Materials Company, is a New Jersey
corporation engaged in the sale and supply of building materials and in the operation
of its business maintains facilities in various States outside the State of Wisconsin,
and annually performs services and/or ships materials and goods between various
States of the United States valued at more than $100,000.
The complaint alleges, the answer admits, and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters and Chauffeurs Union, Local No. 43, of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organi-
zation within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The chief issue raised by the complaint is whether the admitted discharge of em-
ployee Milton Frankwick on June 2, 1962, was in violation of Section 8(a)(1) and
(3) of the Act.
The complaint also alleges as violative of the same sections of the Act certain
clauses in a contract effective at material times between the Respondent and Local
No. 43.
B. The discharge of Frankwick
Before being recalled for work in April 1962, Milton Frankwick had hauled road
materials as a truckdriver for the Respondent in the seasons of 1957 and 1961. He
had never joined Local No. 43, but in 1957 had been a member of another local of
the same international.
When rehired in 1961 he was told by Leo Hribar, head of the Respondent, that
he must join Local No. 43, but he failed to do so and worked during the remainder
of that hauling season. At various times during his employment he was advised by
Hribar to have $5 or $10 in his pocket and if "stopped" by a union representative to
give him the money and "he will let you work." a
About or shortly before noon on June 2 Frankwick was in his truck at the Con-
sumers Quarry yard, waiting for the one truck ahead to be loaded. An individual
identified later as Lotharius, head of Local No. 43, suddenly appeared on the running
board and asked Frankwick how he "was fixed with union dues." The driver asked
who he was. Lotharius gave his name. Frankwick asked for some identification,
remarking that if he was expected to "pay money out" he wanted to know who was
getting it.
Lotharius then called Frankwick a foul name. Apparently not complimented
Frankwick demanded an apology. Lotharius ran ahead to the equipment loading the
truck ahead and told the operator not to load Frankwick's truck.3
'At the opening of the hearing the word "Leo" was stricken from the caption as it
appeared in the complaint
2 Frankwick's testimony concerning the receipt of such "advice" is not disputed And
Hribar admitted that he knew Frankwiek was not a member of Local No 43 throughout
1961 and at the time of his discharge in 1962
8 Frankwtck was a forthright and impressive witness ; his version of the incident is
accepted as more reasonable of belief than that offered by Lotharius. Although the union
agent denied that he called Frankwick any name, and claimed that he merely asked him if
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the conflicting testimony of Lotharius and Frankwick it seems reasonably
to be inferred that Frankwick, who looms some 6 feet 4 inches, was further dis-
pleased by the order not to load his truck, given by someone who had not satis-
factorily identified himself, especially as to authority to halt the loading. And while
there can be little doubt that words were passed, and that both Frankwick and
Lotharius are articulate, even Lotharius' extravagant testimony, if credited, fails to
support any finding of actual violence.
About 3 o'clock that afternoon Frankwick returned to the Respondent's terminal.
While "gassing up" his truck, he was approached by Hribar, who promptly told him
that he was "through." The driver asked why. Hribar told him it was because of
his "not being in the union" and because of his "run-in" with Lotharius at the
quarry. Hribar further said that this would never have happened if he had done as
told to do many times-get into the Union. He said that Lotharius had called
him and told him not to "send" him "out any more," and that he would not be
permitted to work in Racine County again?
Frankwick was paid off and has not been reinstated. The Trial Examiner is
inclined to believe that Hribar was precipitated into firing Frankwick by fear of
retaliation by Lotharius who, according to Hribar's affidavit referred to in a foot-
note below, had called him and "told me to let the man go." Since Hribar's own
testimony makes it plain that he did not ask Frankwick about the "run-in" it would
appear that the altercation itself was a minor matter. And his immediate response
to the effect that his nonmembership was the reason for the discharge indicates that
this matter was uppermost in his mind, suggesting that had Frankwick in fact become
a member, as he had urged, the incident at the quarry would not have taken place.
Since the Respondent makes no claim-but specifically denies-that Frankwick
was discharged pursuant to any contract with Local No. 43, the Trial Examiner con-
cludes and finds that by discharging Frankwick on June 2, 1962, for the stated reason
that he was not a member of that labor organization, the Respondent violated Section
8(a) (3) of the Act and interfered with, restrained, and coerced employees in the exer-
cise of rights guaranteed by Section 7 of the Act. Such action tended clearly to
encourage membership in a labor organization, and such discrimination in employ-
ment is prohibited by Section 8(a) (3) unless it is invoked pursuant to a valid union-
security agreement.
Since the Respondent does not raise the proviso of Section 8(a)(3) as a defense-
and specifically disclaims that the discharge was pursuant to any such agreement, it
appears unnecessary to consider the allegation of the complaint, and the position
urged by General Counsel in his able brief, to the effect that Frankwick actually
was discharged pursuant to an existing agreement but that the contract was unlawful
under the Federal Act because certain provisions of a Wisconsin law had not been
complied with. General Counsel sums the matter up properly in his brief: "Frank-
wick was fired because Lotharius demanded that he be fired." It follows that such
action tends to encourage membership in Local No. 43. To discharge an employee
to encourage union membership is prohibited by Section 8(a)(3) of the Act-unless
such act of encouragement falls within the proviso of that same section. Defense
under the proviso being disclaimed, it appears that it is immaterial to the discharge
issue.
he was a union member, he did not deny telling the equipment operator not to load the
driver's truck. Nor can the Trial Examiner rely upon the testimony of Parr, a Consumers'
employee, a witness called by the Respondent for the apparent purpose of corroborating
Lotharlus Parr placed the incident as occurring in the afternoon, between 1 :30 and
2 •30 Both Lotharius and Frankwick were in agreement that it took place about or just
before noon. And Parr's account is seriously inconsistent with that of Lotharius in other
respects, notably as to where the altercation took place and the number of trucks await-
ing loading.
4 The findings as to the discharge interview are based upon the driver's credible testi-
mony. Although much of Hribar's later testimony is a remarkable maze of self-
contradictions and inconsistencies, culminating in his candid admission that it was his
custom under oath "to tell anybody anything," when first called as an adverse witness by
General Counsel be agreed that when Frankwick asked why he was being fired be had re-
plied by saying: "How tome you didn't join the Union, I asked you [to] a long time ago."
In an affidavit executed before a Board agent in August 1962, which Hrlbar at first dis-
avowed but finally conceded to be the truth, he stated that at the time of discharging
Frankwick he reminded him that "I lead a sign up saying he had to join the union."
HRIBAR TRUCKING, INC. 333
C. The contract
The complaint alleges and the answer admits that during the material period there
has existed a contract between the Respondent and Local No. 43 containing, among
others, the following provisions:
ARTICLE 1. Union Security Clause
It is understood and agreed by and between the parties thereto that as a
condition of continued employment, all persons who are hereafter employed by
the Employer in the unit which is the subject of this agreement shall make ap-
plication for membership in the Union immediately upon commencement of the
term of the employment and become a member of the Union on or immediately
after the thirtieth day following the beginning of their employment and that the
continued employment by the Employer in said unit of persons who are already
members in good standing of the Union shall be conditioned upon those persons
continuing their payment of the periodic dues of the Union. The failure of any
person to make application to and become a member of the Union within said
period of time shall obligate the Employer, upon written notice from the Union
to such effect and to the further effect that union membership was available to
such person upon the same terms and conditions generally available to other
members, to forthwith discharge such person. Further, the failure of any per-
son to maintain his union membership in good standing by failure to pay the
periodic dues of the Union shall, upon written notice to the Employer by the
Union to such effect, obligate the Employer to discharge such person.
ART. 2. Jurisdiction
It is agreed between the parties hereto that the terms and conditions of this
agreement shall apply to all mechanics, truck drivers, helpers, yardmen and
warehousemen in the employ of the Employer, but shall not apply to owners
of vehicles who operate their own vehicles under lease and agreement with
Employer. Such owner operators shall be governed by their respective separate
agreements with Employer.
It is further agreed that all trucks shall be driven by members of Teamsters
and Chauffeurs Union Local No. 43 (unless sanctioned by the Local Officers).
The complaint further alleges and the answer concedes that:
At no time material herein has a referendum election been conducted by the
Wisconsin Employment Relations Board, pursuant to Chaper M. Sub-chapter
I, Section 111.06 of the Wisconsin Statutes to determine whether at least two-
thirds of the Respondent's employees voting by secret ballot are in favor of and
thereby authorize the union security provisions contained in paragraph VI (b)
above.
Finally, the complaint alleges that by "maintain[ ing] in effect and enforc[ing]"
the contract containing the above provisions, the Respondent has violated and is
violating Section 8(a) (1) and (3) of the Act.
The answer denies that the union-security clause, quoted above, has been enforced
and states that it has not been enforced "because no referendum election had been
conducted by the Wisconsin Employment Relations Board."
Undisputed testimony supports the Respondent's position as to the "enforcement"
of the questioned clause-insofar as enforcement is considered within its general
definition, actually invoking it as an instrument of discharge. The testimony at the
hearing is uncontradicted that a number of the Respondent's drivers then employed
were not and had not been required to join Local No. 43 to retain their employment.
As to the union-security clause as a whole, it therefore appears unnecessary under
the circumstances of this case to venture speculation as to whether or not its mere
existence in the contract is violative of the Federal law for the sole reason that certain
regulatory provisions of a State law have not been complied with.
As to the provision in the union-security clause requiring new employees "as a
condition of continued employment" to "make application of membership in the
Union immediately upon commencement of the term of employment," and the
unqualified requirement in the "Jurisdiction" clause to the effect that all trucks must
be driven by members of Local No. 43, the Trial Examiner fully agrees with General
Counsel's contention in his brief that the inclusion of such provisions and require-
ments in a contract, whether actually enforced or not, are violative of Section
8(a)(1) of the Act. He properly cites, in support of his position, Port Chester
Electrical Construction Corporation, 97 NLRB 354, at 355, where the Board said:
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We agree with the Trial Examiner that the Respondent Company and the
Respondent Union respectively violated Section 8(a)(1) and 8(b)(1)(A) of
the Act by retaining an unlawful closed shop provision in their contract, which
they neither intended, to nor did in fact, enforce. Such an unlawful provision
serves no less as a restraint on employees' right to refrain from joining an
organization than if the parties intend to enforce ... .
It is established, in the instant case, that Hribar posted the contract in its entirety,
and that he did not post any disclaimer that the offensive provisions would not be
enforced.
The Trial Examiner therefore concludes and finds that by maintaining in the
current contract the two provisions above cited, the Respondent is interfering with,
restraining, and coercing employees in the exercise of rights guaranteed by Section 7
of the Act.
And because the remedy recommended would be the same , whether or not the
same provisions are also violative of Section 8(a)(3) is a point the Trial Examiner
deems it unnecessary to pass upon.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Teamsters and Chauffeurs Union Local No. 43 of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. By discriminating as to the tenure of employment of Milton Frankwick, thereby
encouraging membership in the above-named labor organization, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
It will be recommended that the Respondent offer Milton Frankwick immediate
and full reinstatement to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason of the unlawful discrimination against
him, by payment to him of a sum of money equal to that which he would normally
have earned as wages, absent the discrimination, from the date of his discharge to the
date of offer of reinstatement, in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289.
The backpay obligations of the Respondent shall include the payment of interest
at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing &
Heating Co., Inc., 138 NLRB 716.
It will also be recommended, in accordance with the Board's Order in the Port
Chester case cited herein, that the Respondent cease and desist from continuing to
include in its collective-bargaining agreement with Local No 43, or with any other
labor organiziation, any provisions which require membership in such union as a
condition of employment except as authorized in Section 8(a)(3) of the Act.
In view of the serious and continued nature of the Respondent's unfair labor prac-
tices, it will be recommended that it cease and desist from in any manner infringing
upon the rights of employees guaranteed by Section 7 of the Act.
HRIBAR TRUCKING, INC. 335
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the Trial Examiner recommends that Hribar Trucking,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in Teamsters and Chauffeurs Union Local No. 43
of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or in any other labor organization, by discharging, laying off, or
refusing to reinstate any of its employees or in any other manner discriminating in
regard to hire or tenure of employment, except as authorized in Section 8(a) (3) of
the Act.
(b) Continuing to include in its collective-bargaining contract with the above-
named or with any other labor organization any provision which requires member-
ship or application for membership in such union as a condition of employment,
except as authorized in Section 8(a)(3) of the Act.
(c) In any manner interfering with, restraining, or coercing employees in the exer-
cise of their right to self-organization, to form labor organizations, to join or assist
any labor organization, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action, which will effectuate the policies of the
Act:
(a) Offer Milton Frankwick immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
privileges, and 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 and all other records necessary to
analyze and compute the amounts of backpay with interest due under the terms of
these Recommendations.
(c) Post at its terminal in Caledonia, Wisconsin, copies of the attached notice
marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director
for the Thirteenth Region, shall, after being duly signed by the Respondent, be
posted by it immediately upon receipt thereof and maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Thirteenth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply therewith.6
I In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted far the words "The Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Circuit Court of Appeals, the words "A Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci-
sion and Order."
6 In 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, chat steps the Respondent has taken to comply herewith."
APPENDIX
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
Relations Act, as amended, we hereby notify you that:
WE WILL NOT encourage membership of any employee in Teamsters and
Chauffeurs Union Local No. 43 of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or in any other labor
organization, by discharging or layng off any employee, or in any other manner
discriminating against any employee in regard to hire, tenure of employment,
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any term or condition of employment, except as authorized in Section 8(a) (3)
of the Act.
WE WILL NOT continue to include in our collective -bargaining contract with
the above-named labor organization , or with any other labor organization,
any provision whicih requres membership or application for membership in
such union as a condition of employment, except as authorized in Section
8(a)(3) of the Act.
WE WILL NOT interfere with, restrain , or coerce employees in any other man-
ner in connection with the exercise of the right to self-organization , to form
labor organizations , to join or assist the above-named or any other labor
organization , to bargain collectively through representatives of their own free
choice and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain from any or all such
activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment , as authorized in Section 8(a) (3) of the Act.
WE WILL offer Milton Frankwick immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his rights and
will make him whole for any loss of pay suffered as a result of our discrimina-
tion against him.
HRIBAR TRUCKING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify Frankwick, in the event he is presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act 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, 176 West
Adams Street , Chicago, Illinois, 60603 , Telephone No. Central 6-9660, if they have
any queston concerning this notice or compliance with its provisions.
Industrial Steel Products Company, Inc. and Shopmen 's Local
Union 760, of the International Association of Bridge, Struc -
tural & Ornamental Iron Workers , AFL-CIO. Cases Nos.
15-CA-2160 and 15-RC-2548. June 28, 1963
DECISION AND ORDER
On March 28, 1963, Trial Examiner Morton D. Friedman issued his.
Intermediate Report in the above-entitled proceeding, 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 Inter-
mediate Report. He also found that the Respondent had not engaged
in certain other unfair labor practices and recommended dismissal of
the complaint as to them. He further found that the Respondent had
interfered with the election of July 17, 1962, and recommended that
it be set aside. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
143 NLRB No. 19.