John B. Shriver Co.

National Labor Relations Board - Board Decisions

Feb 27, 1953

103 N.L.R.B. 23 (N.L.R.B. 1953)

JOHN B. SHRIVER COMPANY 23
JOHN B. SHRIVER, AN INDIVIDUAL DOING BUSINESS AS JOHN B. SHRIVER
COMPANY and GEORGE M. O'SULLIVAN and LOCAL 1049, INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, PARTY TO THE
CONTRACT
LOCAL 1049, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL and GEORGE M. O'SULLIVAN and JOHN B. SHRIVER, AN INDI-
VIDUAL DOING BUSINESS AS JOHN B. SHRIVE, R COMPANY, PARTY To
THE CONTRACT. Cases Nos. 0-CA-2359 and 2-CB-752. February
07, 1953
Decision and Order
On August 20, 1952, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.2
Order
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent, John B. Shriver, an individual doing business
as John B. Shriver Company, his agents, successors, and assigns, shall :
(a) Cease and desist from :
(1) Recognizing the Respondent Union as the exclusive repre-
sentative of the Company's employees for the purposes of collective
bargaining, unless and until said labor organization has been certified
by the National Labor Relations Board as the exclusive bargaining
representative of said employees in an appropriate unit.
(2) Giving efFect to the Company's agreement with the Respondent
Union dated January 28, 1952, or to any earlier oral agreement, or to
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Styles and Peterson].
3 On September 5, 1952, the Trial Examiner Issued an errata to correct certain Inadver-
tent inaccuracies in his Intermediate Report. We also hereby adopt the corrections set
forth In the errata.
103 NLRB No. 2.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any extension, renewal, modification, or supplement thereof, or to any
superseding agreement with said Union, unless and until said Union
shall have been certified by the National Labor Relations Board as
aforesaid, and then only if the agreement to be given effect conforms
to the provisions of the National Labor Relations Act; provided that
the Company in complying herewith shall not be required to vary or
abandon the wages, hours, seniority, or other substantive features of
its relations with its employees established in the performance of such
agreement.
(3) Giving effect to any checkoff cards authorizing the deduction
of periodic union dues from wages for remittance to the Respondent
Union that may have been executed by employees prior to the date of
the Company's compliance with this Order.
(4) Encouraging membership in the Respondent Union, or in any
other labor organization of its employees, by conditioning the hire or
tenure of employment or any term or condition of employment upon
membership in, affiliation with, or dues payments to, the Respondent
Union, or any other labor organization, except where such conditions
shall have been lawfully established by an agreement in conformity
with the National Labor Relations Act.
(5) Sponsoring, assisting, or contributing support to the Respond-
ent Union or to any other labor organization.
(6) In any manner interfering with, restraining, or coercing em-
ployees in the exercise of rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization, as authorized by Sec-
tion 8 (a) (3) of the National Labor Relations Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(1) Withdraw and withhold all recognition from the Respondent
Union as the exclusive representative of the Company's employees for
the purposes of collective bargaining unless and until said Union shall
have been certified by the National Labor Relations Board as the ex-
clusive representative of the Company's employees in an appropriate
unit.
(2) Offer to George M. O'Sullivan immediate reinstatement to his
former or substantially equivalent position in the manner set forth in
the section of the Intermediate Report entitled "The Remedy."
(3) Refund forthwith to all employees on the Long Island project
from whose wages the Company has deducted or withheld funds for
transmittal to the Respondent Union, the amount of all such deduc-
tions and withholdings to the end that each such employee shall be
promptly, fully, and completely reimbursed for all monies so deducted
or withheld.
JOHN B. SHRIVER COMPANY 25
(4) Upon request, make available to the Board or its agents for
examination and copying all payroll and other records necessary to
analyze the amount of back pay due.
(5) Post at all places at the Long Island project where the Com-
pany maintains offices, copies of the notice attached hereto and
marked "Appendix A." 3 Copies of the notice, to be furnished by
the Regional Director for the Second Region, shall, after being duly
signed by the Respondent Company, be posted by it immediately upon
receipt thereof, and maintained by it for at least sixty (60) consecu-
tive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced, or covered
by any other material.
(6) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days of the date of this Order, what steps have
been taken to comply herewith.
II. The Respondent, Local 1049, International Brotherhood of
Electrical Workers, AFL, its officers, representatives, and agents,
shall :
(a) Cease and desist from :
(1) Giving effect to its agreement with the Respondent Company
dated January 28, 1952, or to any earlier oral agreement, or to any
extension, renewal, modification, or supplements thereof, unless and
until it has been certified by the National Labor Relations Board as
the exclusive bargaining representative of said Company's employees
in an appropriate unit, and then only if the agreement to be given
effect conforms to the provisions of the National Labor Relations
Act.
(2) Causing or attempting to cause the Respondent Company, its
agents, successors, or assigns to discriminate in any manner against
employees in violation of Section 8 (a) (3) of the Act.
(3) Restraining or coercing employees of the Respondent Com-
pany, its successors or assigns, in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a)
(3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Notify, in writing, the Respondent Company that it has no ob-
jection to the employment of George M. O'Sullivan and request said
Company to offer him immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority
or other rights and privileges.
In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Post in conspicuous places in its business office, and at all
places where notices to its members are customarily posted, copies
of the notice attached hereto as Appendix B 4 Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by an official representative of the Respondent
Union, be posted by it immediately upon receipt thereof and main-
tained by it for a period of at least sixty (60) consecutive days there-
after. Reasonable steps shall be taken by it to insure that said notices
are not altered, defaced, or covered by any other material.
(3) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto as Appendix B, for posting, the
Respondent Company willing, in places where notices to the Com-
pany's employees are customarily posted. The notice shall be posted
for a period of sixty (60) consecutive days thereafter. Copies of
said notice, to be furnished by the Regional Director for the Second
Region, shall, after being signed as provided in paragraph II (b) (2)
of this Order, be forthwith returned to the Regional Director for
said posting.
(4) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps
have been taken to comply herewith.
III. Both Respondents shall jointly and severally make whole
George M. O'Sullivan in the manner set forth in the section of the
Intermediate Report entitled "The Remedy," for any loss of pay he
may have suffered by reason of the discrimination against him.
4 See footnote 3, supra.
Appendix A
Notice to All Employees
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT recognize LOCAL 1049, INTERNATIONAL BROTHER-
HoOD OF ELECTRICAL WORKERS, AFL, as the exclusive representa-
tive of our employees engaged in gas conversion work on Long
Island, for the purposes of collective bargaining, unless and until
said organization shall have been certified by the National Labor
Relations Board as said representative.
WE WILL NOT give effect to our agreement, dated January 28,
1952, with LOCAL 1049, INTERNATIONAL BROTFIERHooD OF ELEC-
TRICAL WORKERS, AFL, or to any earlier oral agreement, or to any
renewal, modification, or supplement thereof, or to any supersed-
ing agreement with said union, unless and until said union shall
JOHN B. SHRIVER COMPANY 27
have been certified by the National Labor Relations Board as the
representative of employees in an appropriate unit, and unless
said agreement shall conform to the provisions of the National
Labor Relations Act.
WE wil.L NOT give effect to any checkoff cards, heretofore ex-
ecuted by our employees, authorizing the deduction of periodic
union dues from their wages for remittance to LOCAL 1049, INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL.
WE WILL NOT encourage membership in LOCAL 1049, INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, or in any
other labor organization, by conditioning the hire or tenure of
employment or any term or condition of employment upon mem-
bership in, affiliation with, or dues payments to said union, or any
other labor organization, except where lawful provision therefor
shall have become established by an agreement in conformity
with the provisions of the National Labor Relations Act.
WE WILL NOT sponsor, assist, or contribute support to LOCAL
1049, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL.
WE WILL NOT in any other manner interfere with, restrain, and
coerce our employees in their exercise of the rights guaranteed
to them by Section 7 of the National Labor Relations Act, except
to the extent that such rights may be affected by an agreement
made in conformity with the provisions of the National Labor
Relations Act requiring membership in a labor organization as
authorized by Section 8 (a) (3) of the Act.
WE WILL jointly and severally with LOCAL 1049, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL, make whole George
M. O'Sullivan for any loss of pay suffered as a result of discrimi-
nation against him, and offer him immediate and full reinstate-
ment to his former or a substantially equivalent position without
prejudice to his seniority or any other rights and privileges pre-
viously enjoyed.
WE WILL refund to all our employees from whose wages we
have heretofore deducted or withheld funds for transmittal to
LOCAL 1049, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL, the amount of all such deductions and withhold-
ings to the end that each such employee shall be reimbursed for
all monies so deducted or withheld.
JOHN B. SHRIVER COMPANY,
Employer
Dated-------------------- By --------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE TO ALL MEMBERS OF LOCAL 1049, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL, AND TO ALL EMPLOYEES OF JOHN B.
SHRIVER COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT give effect to our agreement with JOHN B. SHRIVER
COMPANY, dated January 28, 1952, or any earlier oral agreement,
and will not enter into, give effect to, or enforce any extension,
renewal, modification, or supplement of that agreement or agree-
ments, or any superseding agreement, unless and until we shall
have been certified by the National Labor Relations Board as the
representative of JOHN B. SHRIVER employees in an appro-
priate unit, and unless the agreement that may subsequently be
entered into conforms to the provisions of the National Labor
Relations Act.
WE WILL NOT cause or attempt to cause JOHN B. SHRIVER
COMPANY, its agents, successors, or assigns to condition the hire
or tenure of employment, or any term or condition of employment,
upon membership in, affiliation with, or dues payments to our
labor organization, except where lawful provision therefor shall
have become established by an agreement in conformity with the
National Labor Relations Act.
WE WILL NOT in any other manner cause or attempt to cause
JOHN B. SHRIVER, its agents, successors, or assigns to discriminate
against employees in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any manner restrain or coerce employees of said
Company in the exercise of rights guaranteed by Section 7 of the
Act, except to the extent that such rights 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.
WE WILL jointly and severally with JOHN B. SHRIVER COMPANY
make George M. O'Sullivan whole for any loss of pay he may
have suffered by reason of the discrimination against him.
LOCAL 1049, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, AFT,,
(Labor Organization)
Dated -------------------- By --------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
JOHN B . SHRIVER COMPANY 29
Intermediate Report
STATEMENT OF THE CASE
Charges and amended charges having been filed by George M. O'Sullivan
against John B. Shriver, doing business as John B. Shriver Company, herein called
the Company, and against Local 1049 of the International Brotherhood of Elec-
trical Workers, AFL, herein called the Union, the General Counsel, on May 27,
1952, issued and served upon each of said Respondents a consolidated complaint
together with a notice of hearing thereon and an order consolidating both cases.
The complaint alleged that the Respondents had engaged in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1), (2), and (3) and
8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the National Labor Relations
Act, 61 Stat. 136, herein called the Act.
With respect to the employer unfair labor practices, the complaint alleged in
substance that the Respondent Company :
1. Sponsored, assisted, and contributed support to the Respondent Union in
violation of Section 8 (a) (2), and interfered with, restrained, and coerced its
employees in the exercise of their self-organizational rights in violation of
Section 8 (a) (1), by
(a) Entering into and giving effect to agreements with the Union pursuant to
which (1) the Union was recognized as the exclusive bargaining representative
in a unit of all the Company's employees engaged in gas conversion work on
Long Island; (2) provision was made for a union-shop clause not authorized
by Section 8 (a) (3) ; and (3) the employees in said unit were required as a
condition of employment to pay dues to the Union and to execute dues checkoff
authorizations-it being alleged that such recognition was accorded and such
agreements were made notwithstanding that the Union was not the designated
bargaining representative of the Company's employees within the meaning of
Section 9 (a).
(b) Distributing to its employees union dues checkoff cards for and on behalf
of the Union.
(c) Threatening to discharge its employees unless they signed such checkoff
Cards.
(d) Discharging George M. O'Sullivan on or about February 2, 1952, and
thereafter refusing to reinstate him because of his refusal to sign a checkoff card.
2. Discriminated in regard to the hire, tenure, and terms and conditions of
employment of its employees in violation of Section 8 (a) (3) and 8 (a) (1) of the
Act, by reason of the acts and conduct described above in paragraphs numbered
1 (a) and 1 (d).
With respect to the union unfair labor practices, the complaint alleged in sub-
stance that the Respondent Union violated Section 8 (b) (1) (A) and 8 (b) (2)
of the Act by entering into and giving effect to the agreements and otherwise
participating in the acts and conduct described above in paragraphs numbered 1,
1 (a), 1 (d), and 2.
The Respondents in their answers denied generally all material allegations
of the complaint imputing to them the commission of unfair labor practices.
By way of affirmative defense, the answers alleged in substance that the em-
ployees in question were covered under a valid collective-bargaining agreement
between the Union and another company-Long Island Lighting Company-
which authorized and validated the contractual provisions complained of. In
addition, the Company in its answer alleged that O'Sullivan voluntarily termi-
nated his employment with the Company, and the Union in its answer alleged that
it did not seek, request, demand, or otherwise participate in O'Sullivan's
discharge.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held between June 10 and 12, 1952, at New
York City, before Arthur Leff, the Trial Examiner duly designated by the Chief
Trial Examiner. The General Counsel, the Company, and the Union were repre-
sented by counsel and participated in the hearing. Full opportunity to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. At the close of the General Counsel's case, motions by the
Respondents to dismiss the complaint for insufficiency of proof were denied, with
leave to renew upon the entire record at the close of the case. Upon renewal of
the motions at the end of the entire case, decision was reserved. The motions
are now disposed of in accordance with the findings of fact and conclusions of
law made below. Motions to conform the pleadings to the proof with regard to
minor variances were granted. All parties availed themselves of the opportunity
accorded them to argue orally and to file briefs.
Upon the entire record in the case and from my observation of the witnesses, I
make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
John B. Shriver, doing business under the trade name and style of John B.
Shriver Company, with his principal office and place of business at Independence,
Iowa, is engaged in the business throughout the United States of converting gas
appliances from one type of gas use to another. During 1951, the Company-as
Shriver is here called-purchased, transferred, and had delivered to its various
places of business repair parts for gas appliances and other materials valued in
excess of $600,000, of which approximately all were transported to its various
places of business in interstate commerce from various States of the United
States. During the same year, the Company sold at its places of business in the
several States in which it then maintained temporary offices, materials and
services valued in excess of $4,300,000. The Respondents admit that the Com-
pany is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Local 1049, International Brotherhood of Electrical Workers, affiliated with
the American Federation of Labor, as a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
A change from manufactured gas to natural gas requires certain adjustments
in all gas-burning appliances and equipment of domestic and industrial users in
the area where the change is to be made. The Respondent Company is engaged
in the business of converting such appliances and equipment. It performs its
services on a contract basis for public utilities throughout the United States,
the precise contract provisions being a matter for negotiation. To perform its
services, it has a large number of trained employees who move about with it
from project to project, many in automobile trailers which they utilize for their
housing. The employees are hired for work on a given project, and if at its
completion there is no work immediately available for them at another, they are
then laid off, but they have a reasonable expectation of being recalled by the
Respondent Company for employment elsewhere as and when work again becomes
available.' Of the approximately 125 Respondent Company employees who were
1 During the periods of layoff, the employees seek work with other gas-conversion com-
panies, and , conversely, employees of other gas conversion companies seek work with the
Respondent Company when laid off from their jobs.
JOHN B. SHRIVER COMPANY 31
hired at the commencement of the Long Island Lighting Company project, which
is here in question, practically all had previously worked for the Respondent at
other projects. Of the 180 at the time of the hearing, about 90 percent had
worked for the Respondent Company before. Few of these employees came from
the area of the project ; most were from other States.
B. The Respondent Company's contract with Long Island Lighting Company
On November 9, 1951, the Respondent Company contracted with Long Island
Lighting Company to convert for natural gas use all gas-burning appliances and
equipment connected to the Lighting Company's gas system, covering an area
on Long Island, New York, about 25 miles wide and about 80 miles long. The
work was to be performed in two steps-predrilling of equipment and actual
conversion. It was contemplated that the undertaking would extend over some
11 months, and that the Respondent Company would use some 150 employees
in the preliminary predrilling operation, a number that would swell to approxi-
mately 300 for the conversion operation.
Certain aspects of the contractual arrangements and their performance will
here be discussed with greater detail than may at once appear necessary. This
is because of the emphasis placed by the Respondents on their defense that the
employees hired by the Respondent Company to work on the Long Island proj-
ect-herein called the conversion employees-must be regarded as temporary
employees of the Lighting Company rather than as employees of the Respondent
Company acting in the capacity of an independent contractor.
The contract, irrevocable in form and subject to termination by either party
only upon breach by the other, provided by its terms that the Respondent
Company was to :
plan, engineer, supervise, direct, organize and perform the conversion opera-
tion . . . and . . . furnish all necessary executive, administrative, super-
visory, and technical personnel, and such labor as may be necessary to
complete the conversion [as well as] tools, machinery, shop busses equipped
as mobile machine shops and field stockrooms, materials . . . and trans-
portation... .
The quoted contractual provision was, however, in part modified by another
which reserved to the Lighting Company the right to "make changes in the
specifications, issue additional instructions and require additional work to be
performed by the Contractor [the Respondent Company]." There is evidence
that in the course of the contract's performance, the Lighting Company exercised
that reserved right by rejecting at least in part the operational plan proposed
by the Respondent Company, devising its own, preparing and publishing its own
manual of job procedures and specifications , and arranging for the distribution
of the manual to the conversion employees. The manual contained detailed in-
structions of general application with regard to the operational steps that would
be required for the conversion of each of the numerous types of equipment and
appliances that employees could expect to encounter on the job.
As for the actual supervision of the employees engaged in carrying out the
work in accordance with the job specifications, the contract leaves no doubt that
this is the responsibility of the Respondent Company. It provides :
All the work and services to be performed by the Contractor shall at all
times be under the personal supervision of John B. Shriver, M. C. Adams or
L. B. Shriver [all officials of the Respondent Company] and the Contractor
shall provide the requisite personnel necessary to effectively administer the
contract.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the start of the project, the conversion employees were required to attend a
1-day training course at which they were instructed by Lighting Company repre-
sentatives with regard to such things as gas pressures and service regulators
in use in the project area, the safety regulations enforced by the Lighting Com-
pany, and the standards of personal conduct which they would be expected to
follow to insure customer cooperation and maintain public relations at a high
level. Other than that, there is no evidence that conversion employees below
the level of superintendent have had any direct official contact with Lighting
Company representatives. Conversion employees work in crews of eight. Each
crew is under the direct supervision of a crew foreman. The crew foremen
report to and receive their orders from field supervisors, and they in turn are
responsible to H. C. Adams, the project superintendent. The foremen, field super-
visors, and superintendent are all members of the Respondent Company's regular
organization. Although the Lighting Company participates in scheduling the
particular areas where work is to be done at given times, and provides precise
listings of the premises to be visited, the actual assignments of individual con-
version employees to work stations are made by the crew foremen, and the
performance of the work itself is directed by the crew foremen and the Respondent
Company's supervisory officials who are over them. The Lighting Company
through its own representatives makes inspections of work that has been com-
pleted, but it would seem that this is primarily for the purpose of maintaining a
check on the Respondent Company's fulfillment of its contract requirements.
As for the legal relationship the contracting parties contemplated would be
established between themselves and with the conversion employees, the contract
is explicit. It provides :
At all times the Contractor agrees to perform the work as an independent
contractor and nothing herein contained shall be construed as creating the
relationship of employer and employee between the [Lighting] Company and
the Contractor or between the [Lighting] Company and any personnel of, or
persons employed by the Contractor.
The contract is on a "cost plus" basis, providing for the reimbursement to the
Respondent Company of labor and other costs incurred by it, plus a fixed per-
centage fee and other allowances. With regard to hourly wage rates for the
various classifications of conversion employees, overtime rates, subsistence allow-
ances for out-of-town employees, and the like, the contract expressly stipulates
the amounts that may properly be charged the Lighting Company as reimbursable
items. The stipulated amounts are the same as those paid by the Respondent
Company on its other operations, and thus represent its prevailing rates for that
type of work. Payment of wages to the conversion employees is made by the
Respondent Company with its own checks which it distributes?
Unemployment compensation, social security, workmen's compensation, and
other required payroll reports list the Respondent Company as the employer
of the conversion employees. Uniforms worn by the conversion employees
on the job carry the name of the Respondent Company.
The Lighting Company does not participate in the hiring of conversion em-
ployees, this being left entirely to the Respondent Company. It has reserved
2 Detailed copies of the payroll of the Long Island project are submitted each week to
the Lighting Company, but this is done for reimbursement purposes. It appears that on
one occasion the distribution of checks to the conversion employees was made by Lighting
Company representatives . But the record shows that this was done as part of an audit,
one purpose of which was to insure that there was no "padding " in the Respondent Com-
pany's reimbursable payroll.
JOHN B. SHRIVER COMPANY 33
to it under the contract, however, the power to demand the discharge of con-
version employees under certain circumstances. The contract states :
Employees of the Contractor whom the [Lighting] Company, in its
opinion, considers undesirable for work on this contract during periods
of national emergency or at any other time when the Company determines
that its interest might be prejudiced by the continued presence of such
employees on this contract, will be discharged by the Contractor upon
direction by the Company. Because of the public interest reflected in the
Company's business, it shall not be necessary for the Company to give any
reason when calling upon the Contractor to remove employees from this
contract.
The Engineer [vice-president of the Lighting Company] may order the
discharge of any employee of the Contractor on this contract for conduct
which in the opinion of the Engineer is prejudicial to the interests of the
Company, and such order shall be obliged immediately by the Contractor and
such employees shall not again be employed under the contract.'
The Contractor's employees shall at all times conform to the rules and
regulations of the Company and other agency having jurisdiction.
During the 1-day training course at the start of the project, the conversion
employees were advised by Lighting Company officials of the standards of safety
and personal conduct they would be required to follow. These instructions
were implemented in the manual which the Lighting Company prepared for
distribution to the conversion employees. In a section entitled, "Working
Rules for Conversion Men," the conversion employees were advised of the rules
of cleanliness, personal courtesy, and safety they would be expected to observe.
Among other things, they were cautioned against smoking on customer's prem-
ises, against the use of improper conduct, and against the use of alcoholic bev-
erages on the job. They were told to maintain a neat appearance in dress and
person, to be polite in their customer contacts, and to take necessary precautions
to avoid dirtying up customer's premises. The reason for these rules was ex-
plained in a preamble to the Working Rules section, reading as follows :
The public relations now existing between the Long Island Lighting
Company and its customers are valuable business assets. Every effort to
improve these relations must be made by the Shriver organization and by
the [Lighting] Company's employees. We are inconveniencing our customers
by asking them to stay at home and admit workmen to survey, convert and
check their equipment. A courteous approach to our customers is essential
and will reflect credit on you and your organization. Certain rules are set
forth in this manual for your guidance. No deviation from these rules will
be permitted. Remember-to the consumer, you are the Long Island Light-
ing Company and a favorable comment on the way you handled our cus-
tomers will go a long way toward offsetting the inconvenience we have
caused them.
After the conversion contract was signed the Respondent Company arranged
with employees who had worked for it on other jobs to report on the Long Island
project. The 1-day training course, adverted to above, was held on January 25,
1952. Actual operations started on January 28, 1952.
2 No employees of the Respondent Company have been discharged under this clause.
On one occasion , however, following an explosion caused by defective work performed by
certain employees of the Respondent Company, the Lighting Company demanded that the
employees involved be disciplined , and in compliance with that demand the Respondent
Company suspended 4 employees for 1 week.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0. The agreement between the Respondent Company and the Respondent Union
and the events leading to it
The Respondent Union is, and has been for some time , the certified exclusive
bargaining representative of the Lighting Company's employees in a unit com-
posed generally of the Lighting Company's production and maintenance em-
ployees. At all times material to this case , there has been in existence between
the Union and the Lighting Company a collective -bargaining agreement which
contains a union -shop provision-the validity of which is not questioned in
this proceeding-requiring all physical employees of the Lighting Company to
become union members after 30 days of employment and to maintain such mem-
bership as a condition of employment . The agreement also contains the follow-
ing specific provision relating to the contracting of work by the Lighting Com-
pany:
The [Lighting] Company agrees that in the event the present practices
and policies pertaining to the contracting of work are to be extended or
changed, the Union shall be advised in advance and given a reasonable op-
portunity to meet with the Company and discuss the matter . Other things
being equal , preference is to be given to contractors whose employees are
affiliated with the International Brotherhood of Electrical Workers. The
Company will make every effort to stabilize employment in the various
departments of the Company , within the limits announced to the Union, and
agrees that contracting of work will not be used as a means of disturbing
such stabilization.
Long before the conversion contract was actually let, the Lighting Company
notified the Union of its intention to convert to natural gas. At that time the
Lighting Company did not yet know whether it would have the work done by
its regular employees or through a contractor . The Union at first took the posi-
tion that the work should be done by the Lighting Company 's regular em-
ployees who were members of the Union . It asserted , among other things, that
the work of conversion employees was similar in kind to that performed by
regular Lighting Company employees , that the conversion work fell within
the Union 's jurisdiction , and that it did not want nonunion men or members
of a rival labor organization to engage in work that might bring them in con-
tact with union members.
Because of an expansion program in which it was engaged at the time, the
Lighting Company was unable to arrange to have the work performed by its
regular employees . It did consider for a time the possibility of hiring a group
of temporary employees on its own payroll to perform the conversion work under
its direct supervision . But eventually it came to the conclusion that this plan
would be unfeasible . In the end it concluded to have the work performed through
a contractor . The Respondent Union finally agreed to go along with this arrange-
ment. In doing so , however, the Union did not abandon its work jurisdictional
claim that since the work was similar in kind to that performed by Lighting Com-
pany employees , the contractor 's employees should be affiliated with and pay
dues to the Union.
Apparently recognizing that the absence of a working understanding between
the Respondent Company and the Respondent Union might lead to job friction,
the Lighting Company inserted in its conversion contract with the Respondent
Company the following provision :
The Contractor shall work out satisfactory labor relations so that the
conversion work and the [Lighting ] Company's operations will not be
interfered with.
JOHN B. SHRIVER COMPANY 35
After the conversion contract was fully drafted and already executed by the
Respondent Company, but not yet by the Lighting Company, the latter notified
the Respondent Company that before affixing its signature it would as a final
condition require the Respondent Company first to comply with the contractual
provision just quoted. With that in view, the Lighting Company arranged for
the Respondents to meet with each other.
The meeting was held in the early part of November 1951. It was attended on
behalf of the Respondent Company by John Shriver, its proprietor, and Blake
Wade, its office manager, and on behalf of the Respondent Union by Business
Manager Robert W. MacGregor. At the meeting, the Respondents arrived at an
oral understanding that all conversion employees to be employed by the Respond-
ent Company on the Long Island project would be required to affiliate with the
Union and pay it monthly dues of $2.40. Wade (who was delegated authority
on behalf of the Respondent Company to work out the details of the arrangement)
was given to understand as a result of the meeting that the Respondent Company
would be required to deduct the stipulated monthly dues from the conversion
employees' pay for transmittal to the Union. There seems to have been no
express discussion at the time with regard to when the obligation of the Respond-
ent Company's employees to pay dues was to begin.
As for wages, hours, and working conditions, no actual negotiations were con-
ducted. Business Agent MacGregor merely expressed himself as satisfied with
the schedule of reimbursable wage items that had already been incorporated in
the conversion contract negotiated between the Respondent Company and the
Lighting Company.
Although it is now claimed by the Respondents that the agreement reached
between the respective Respondents was designed as a supplement or extension
of the existing collective-bargaining agreement between the Lighting Company
and the Respondent Union, the record fails to show that any mention of that was
made at the meeting. On the contrary Shriver testified, and it is found, that he
was not furnished a copy of the Lighting Company's collective-bargaining contract
and he never saw or asked for one. What Shriver was concerned with establish-
ing, he testified, was the amount of dues his employees would have to pay. His
principal interest, he candidly admitted, was to buy peace with the Union, obtain
union protection against jurisdictional disputes, and avoid picket line and other
labor troubles on the conversion project.
Upon determining from MacGregor, after the November meeting, that an
agreement satisfactory to the Union had been reached, the Lighting Company
proceeded to execute the conversion contract with the Respondent Company.
It was understood that the verbal agreement would be followed by a formal
written instrument when work actually began. Such an agreement was executed
by the Respondents on January 28, 1952. The Respondent Company then had
on its Long Island payroll approximately 125 employees, all of whom had com-
menced their employment on the project a few days earlier by attending the
training school. In the written agreement, the Respondent Company recognized
the Respondent Union as the exclusive bargaining agent of the Respondent Com-
pany's employees performing gas-conversion work on Long Island. Rates of pay
as well as subsistence and other benefits were stipulated as in the agreement
between the Respondent Company and the Lighting Company. The agreement
provided, in addition, that employees covered by the agreement would be required
to work under the safety rules as established by the Local Union and the Lighting
Company-that being the only reference to that relationship. The following pro-
vision covered the requirements for union membership and dues payments :
It is agreed that all employees covered by this Agreement shall, as a con-
dition of employment, be required to affiliate with Local 1049, thirty (30)
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days from the date of employment. New employees shall be required to
affiliate with the Union thirty (30) days after the date of employment.
It is conceded that up to the time the agreement was signed none of the
employees on the Respondent Company's Long Island payroll had designated the
Respondent as collective-bargaining representative.
D. The distribution of checkoff cards
At about the time the January 28, 1952, agreement was executed, Union Busi-
ness Manager MacGregor delivered to Wade (who signed the agreement for the
Respondent Company) checkoff cards for distribution to the Respondent Com-
pany's employees. The cards in form authorized the Respondent Company to
withhold from the wages of subscribing employees and to transmit to the Union
the sum of $2.40 a month, the authorization to be irrevocable for 1 year or until
the earlier termination of the collective-bargaining contract. Wade turned the
cards over to M. C. Adams, the Respondent Company's job superintendent, telling
him it was necessary to have them signed by all conversion employees. Adams
delivered the cards to the two field supervisors with orders to have them signed
by each conversion employee and returned to the office. The field supervisors in
turn passed on the cards and orders to the crew foreman, who distributed them to
the conversion employees.
Later that week, Adams set Saturday, February 2, as a deadline for the receipt
of all cards. His purpose, he explained while testifying, was to enable him to
deduct the required dues from the payroll of that week.
Most of the conversion employees signed at once, apparently without vocal
objection. A few resisted. There is evidence that several employees on the
crew of Foreman Harry H. Thomas refused to sign, at least at first. Among
them were George M. O'Sullivan, who is alleged in the complaint to have been
discriminatorily discharged as a result, Stanley Phillips, and two brothers named
Frazier. Upon their refusal to sign they were told by Thomas that if they did not
sign, they would not be able to work.4 As a result of Thomas' warning, one of the
employees, Stanley Phillips, who had at first refused to sign, changed his mind
because, as he testified, "I need a job and I can't fool around."
When Adams learned that several men on Thomas' crew had refused to sign,
he instructed Field Supervisor Wilt to speak to them. Wilt met with the
employees on Saturday afternoon, February 2. He told them that they would
have to sign the checkoff authorizations at once. If they did not, he said, they
could not report on the job on Monday, the following workday, but would have
to see Superintendent Adams instead. After Wilt's admonition all in Thomas'
crew who had held up to that point, except O'Sullivan, capitulated and signed,
4 This finding is based upon credited testimony of O'Sullivan substantially corroborated
by Charles Frazier ; Thomas denied making any such statement , but his denial is not cred-
ited. In a prehearing sworn statement given to the Board's field examiner , Thomas,
contrary to his testimony as a witness , stated that when he distributed the cards he told
the employees that they must sign the cards if they wanted to work.
At the hearing the General Counsel asserted , and the Respondents denied, that Thomas
occupied the status of a supervisor . On all the evidence , I am satisfied that Thomas,
principally because of his authority to assign and responsibly to direct employees under
him must be found a supervisor within the definition of Section 2 (11) of the Act. The
evidence supporting Thomas' supervisory status is not detailed in this report because on
the facts as they appear , I think it unnecessary in any event to find Thomas a supervisor
in order to attribute to the Respondent Company the statements found above to have been
made by him . As Thomas , admittedly , was specifically authorized by the Respondent
Company to request his crew members to sign the checkoff cards, his statements made in
that connection fell within the scope of his agency authority , and they are therefore
binding on his principal whether or not he is considered a supervisor within the defini-
tion of the Act.
JOHN B. SHRIVER COMPANY 37
one of them, Charles Frazier, with the contemporaneous statement to Wilt that
he was doing so only because he had no alternative, as he needed his job.
The disposition of O'Sullivan's case is discussed below. Except for O'Sullivan,
all conversion employees on the Long Island project have either signed checkoff
cards or have otherwise submitted to the Respondent Company withholding from
their pay for transmittal to the Union the sum of $2.40 a month o It appears
that the Respondent Company began the practice of deducting such union dues
during the first week's payroll in the project, and has continued to do so since,
at least up to the date of the hearing.
E. O'Sullivan's termination of employment
George M. O'Sullivan had worked for the Respondent Company since about
August 1950. His service had been continuous except for a short break of about 2
weeks at the end of 1950, and another from about Thanksgiving of 1951, until he
reported for work on the Long Island conversion project on January 25, 1952. He
neither was told nor knew anything of the Union until after he started on the
Long Island job.
The efforts of Crew Foreman Thomas and Field Supervisor Wilt to induce
O'Sullivan to sign a union checkoff card despite his objection have been related
above.
On Saturday afternoon, February 2, 1952, upon being told by Wilt that he
could not report for work on Monday but would have to see Adams instead,
O'Sullivan requested and was granted permission to leave his job at once to call
on Adams at the Company's office.
During his interview with Adams that afternon, O'Sullivan questioned Adams
concerning the reasons and purposes of the dues checkoff, and expressed the view
that the requirement being imposed upon employees to pay union dues was illegal.
Adams, by persuasive means at first, sought to break down O'Sullivan's resist-
ance. He explained that it was desirable to have all conversion employees
affiliate with and pay dues to the Union in order to avoid friction and labor
troubles. He stressed that the amount involved was small, equal to only about
an hour's overtime wages a month, argued that it really meant nothing, and
urged O'Sullivan to cooperate. But O'Sullivan would not be placated. He asked
Adams what would happen if he did not sign the checkoff. In that event, Adams
replied, he would be forced to let O'Sullivan go
11 Adams testified , "I think we can look back through [the payroll] and find some fellows
that never have signed [ checkoffs ] but we take it out anyway. They never kick about it.
... If it happens to be someone that has been with us for years , I know he doesn't care
about it...."
'The findings just made are based mainly upon the credited testimony of O'Sullivan
who impressed me as a forthright and reliable witness. Adams' testimony departs from
that of O 'Sullivan principally on the point of whether he told O 'Sullivan he would be
forced to let him go if he did not sign the checkoff authorization . According to Adams, he
merely asked O'Sullivan to sign a checkoff card as a convenience to O'Sullivan , so as to
avoid the necessity of O'Sullivan calling at the union office to pay his dues in person.
His testimony reveals, however , that he considered it the obligation of all employees to
pay dues either by checkoff or in person . Adams testified , contrary to O'Sullivan, that
when O ' Sullivan asked what would happen if he refused to sign, he, Adams, replied, "I
have no orders to fire anyone, and I won 't fire anyone unless I am told to do so by the
Union." Other testimony of Adams reveals that he considered the arrangement with the
Union to be a "closed shop" one, obliging all employees to pay dues as a condition of
employment, that he was anxious to have the employees fall in line to avoid labor diffi-
culties , and that he wanted all checkoffs in by that Saturday . His attitude toward em-
ployees who crossed his wishes was disclosed at one point by his testimony , "I am running
the job and I am not going to let a bunch of men tell me what to do. That's just part of
the job , to get that Union card signed ." It was disclosed at another point by his testi-
mony with regard to the deadline he had imposed , "Well, you have got to either run a
257965-54-vol. 103--4
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Sullivan left Adams that day with the statement that he was going to find
out if he had to sign the card to work. Either that day or the following Monday,
O'Sullivan saw Wade. He asked Wade who had authorized the checkoff arrange-
ment. Wade replied that company representatives had agreed with Union Busi-
ness Manager MacGregor on the $2.40 monthly payments as a reasonable amount
for a job. O'Sullivan asked Wade for the address of the Union so that he could
file a charge.
O'Sullivan was not specifically told by either Adams or Wade that he was
discharged. Nor did he ever specifically announce to them or other company
officials that he was quitting. However, he did not appear for work on Monday,
February 4, and has not reported since. At the hearing he testified in substance
that he considered himself discharged because he was told by Thomas that he
could not work unless he signed the checkoff card, by Wilt that he was not to
report on the job on Monday, and by Adams that unless he signed the checkoff
card, he, Adams, would be forced to let him go. He testified further that when,
after telling Adams he would not sign a checkoff card, Adams advised him that
he would be forced to let him go, he concluded that he was discharged from that
time forward.
On Tuesday, February 5, 1952, O'Sullivan went to work for another gas con-
version company by which he had been employed immediately before going to
work on the Respondent Company's Long Island job. The following week he
filed with the Board his charges, alleging that the Company violated Section 8
(a) (3) by discharging him, and the Union, Section 8 (b) (2) by causing his
discharge.
F. Conclusions
1. The Respondent Company's violation of Section 8 (a) (1), (2 ), and (3) and
the Respondent Union's violation of Section 8 (b) (1) (A) and 8 (b) (2), by
reason of their agreement according the Union recognition as exclusive bar-
gaining representative of the conversion employees and requiring such em-
ployees to join and pay dues to the Union as a condition of employment
Unless there be validity to the Respondents ' alleged affirmative defenses con-
sidered at length below, there can be no doubt of the Respondents ' violation
of the sections of the Act set out above. It is undisputed that the Union repre-
sented none of the conversion employees when the Respondent Company agreed
to accord the Union exclusive representative status. Even without a contrac-
tual requirement for compulsory union membership , an employer illegally assists
and supports a labor organization by granting it exclusive recognition when
he knows it does not represent a majority in an appropriate bargaining unit at
the time the grant is made. The illegal assistance and support is only aggra-
vated where , as here, the agreement that grants recognition also requires the
covered employees as a condition of their employment to join and pay dues to a
labor organization they have not freely chosen! By including such a contrac-
crew of men or you have to either let them run it, and you have to have some rules and
regulations." Adams impressed me as a man of considerable force and temper, one not
apt to brook employee opposition in his desires. Under all the circumstances , I think it
altogether probable, notwithstanding Adams' denial, and I find as testified by O'Sullivan,
that Adams told O'Sullivan in substance that he would not be allowed to remain on the
job unless he consented to the union dues deduction.
7 This would be so even if the union-security clause conformed to the statutory require-
ment for a 30-day waiting period "following the beginning of such employment or the
effective day of the agreement, whichever is the later." The contract provision in this
case, however, did not even meet that statutory requirement. It required affiliation with
the Union 30 days from the date of employment, making no reference to the effective
date of the agreement As a substantial number of the conversion employees were actually
employed prior to the effective date of the agreement, the requirement for union member-
ship fell outside the permissible scope of Section 8 (a) (3)1.
JOHN B. SHRIVER COMPANY 39
tual requirement, the employer not only violates Section 8 (a) (1) and (2), but
Section 8 (a) (3) as well. See, e. g., Hollywood Ranch Market, 93 NLRB 1147;
Printz Leather Company, 94 NLRB 1312. And the labor organization which
executes and gives effect to the illegal agreements also commits an unfair labor
practice, violating Section 8 (b) (1) (A) and 8 (b) (2) of the Act. See, in
addition to cases already cited, New York State Employers Association, Inc.,
93 NLRB 127; Childs Co., 93 NLRB 281; Acme Mattress Co., 91 NLRB 1010.
The Respondents do not question the principles enunciated above. But they
dispute their applicability to the particular facts of this case. Their defense
in substance is that: The conversion employees, they say, were not actually
employees of the Respondent Company, but were, rather, temporary employees
of the Lighting Company. As such, according to the Respondents, they fell
within the bargaining unit of Lighting Company employees, a unit for which
the Union had been duly certified as bargaining representative and which was
covered by the already existing union-shop contract between the Union and
the Lighting Company. Under that certification and that contract, assert the
Respondents, recognition of the Union as the representative of the conversion
employees was required by law, so that the Respondent Company's recognition
of the Union represented a fulfillment rather than a trespass of a legal obliga-
tion. Nor was it illegal-the Respondents' argument continues-to require the
conversion employees to join the Union within 30 days after their employment;
for that merely conformed to the requirements of the union-shop clause con-
tained in the agreement between the Union and the Lighting Company, the
validity of which is not attacked in this proceeding. The separate agreement
between the Respondent Company and the Respondent Union, the Respondents
would have it, did no more than clarify in its specific application to the con-
version employees the governing collective-bargaining agreement between the
Union and the Lighting Company, without, however, affecting the legal obliga-
tions with regard to union membership already established by that agreement.
The Respondents' present assertion that the conversion employees were em-
ployees of the Lighting Company, rather than of the Respondent Company as
an independent contractor, seems clearly at variance with their earlier concep-
tion of the employer-employee relationship. The Respondent Company in its
conversion contract with the Lighting Company had expressly stipulated that it
was engaging in the conversion project as an independent contractor and that the
conversion employees were to be regarded as employees of the Respondent Com-
pany, not of the Lighting Company. In its workmen's compensation and other
required payroll reports it had also gone on record to acknowledge that it rather
than the Lighting Company was the employer of the conversion employees. As
for the Respondent Union, it, too, had earlier taken positions consistent only
with its own recognition of the Respondent Company's status as an independent
contractor. Thus, after at first insisting that the conversion work be done with
the Lighting Company's regular employees, the Respondent Union had finally
agreed to allow the Lighting Company to have this work performed through a
contractor. More significantly, in its attempt to bring the conversion employees
under its jurisdiction, it had negotiated and executed a separate contract, not
with the Lighting Company, but with the Respondent Company. That con-
tract expressly covered "the employees of the John B. Shriver Company per-
forming gas conversion work on Long Island."
The fact that both Respondents, as well as the Lighting Company, had earlier
regarded the Respondent Company as an independent contractor does not, to be
sure, finally dispose of the issue of whether or not the conversion employees
were in fact employees of the Lighting Company. Cf. San Marcos Telephone
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, 81 NLRB 314, 318. But it is a factor, nevertheless, that must be
accorded considerable weight, particularly in a situation such as this, where
the Respondents, in an effort to evade liability under the statute, assert in
defense to an unfair labor practice complaint the existence of a legal relation-
ship that is antithetical to that which their own conduct reveals they had con-
sidered it to be in the past. For the contradictory position now taken serves
to cast a dubious cloud over the bona fides of their defense.
Apart from this consideration, however, there are numerous other factors
present in this case to indicate that the Respondent Company occupied the
position of an independent contractor, as contended by the General Counsel,
rather than that of a hiring agent for the Lighting Company, as contended by
the Respondents. The Respondent Company is regularly engaged in the busi-
ness of performing conversion work on a contract basis for utility companies
throughout the country. It has an established organization with the executive,
administrative, supervisory, and technical personnel and much of the physical
equipment required for the performance of this work. Its contract with the
Lighting Company obliges it to prosecute the work to a successful conclusion ;
neither it nor the Lighting Company may terminate the contract except upon
breach by the other. It does its own hiring. It has an unrestricted right itself
to discharge or discipline employees. The men hired by it are in the main
drawn from conversion employees, especially skilled in that type of work, who
have worked for it on other projects and who have a reasonable expectation
of working for it on new projects in the future after the Long Island project
is completed. It may assign conversion employees to other projects at any time.
It directly supervises through its own established supervisory organization the
job assignments and work performance of the individual employees engaged in
the conversion work. The wages and benefits paid the conversion employees
correspond to those paid by it to its employees at its other conversion opera-
tions, rather than to those paid by the Lighting Company to employees per-
forming roughly comparable work. Wages are paid with its own checks dis-
tributed by it. It pays all payroll taxes and is listed as the employer on all
payroll reports. The work of the conversion employees is not functionally
integrated with the normal operations of the Lighting Company, and once the
special project is completed it is to be anticipated that these employees will
move on to perform work at other conversion projects undertaken by the Re-
spondent Company.
As opposed to the foregoing indicia of an independent contractor relation-
ship, the Respondents point to others which, they say, reflect the retention and
exercise by the Lighting Company of sufficient control over the conversion
work and the employees performing it to establish a direct employer-employee
relationship between the Lighting Company and the conversion workers. They
emphasize particularly that the Lighting Company specified in particular detail
the manner and order in which the conversion work was to be performed ; that
it subjected the work performed to rigid inspection by its own inspectors ; that it
incorporated in the conversion contract a scale of wages and other compensa-
tion ; that it required conversion employees to adhere to specified safety rules
and standards of personal behavior in accordance with regulations issued by
it : and, finally, that it reserved to itself the right to order the discharge of con-
version employees whose continued presence on the job it might view as detri-
mental to its own interests.
Most of the elements upon which the Respondents rely relate to contract
rather than to employer controls. Thus, the detailed specifications of the work
to be done, the methods that were to be employed in doing it, and the order in
JOHN B . SHRIVER COMPANY 41
which it was to be done, were substantially no different in kind from detailed
specifications customarily given by a manufacturer or builder when ordering
parts and assemblies or work from subcontractors. While the specifications
fixed work standards of general application, the supervisory direction of con-
version employees in carrying them out was left, both by contract and in prac-
tice, to the supervisory staff of the Respondent Company. In making its in-
spections of work performed by conversion employees, the Lighting Company
exercised no different control than that normally exercised by a manufacturer
who inspects products of a subcontracor to insure their compliance with con-
tract standards. The wage rates and other compensation scales listed in the
conversion agreement were also essentially matters of contract control, fixing
as they did the outside limit of reimbursable expense items that might properly
be charged by the Respondent Company under its "cost-plus" contract. The rates
themselves were not determined by the Lighting Company, the contract merely
restating the Respondent Company previously established wage scales applicable
not only on this particular project but on its others as well.
Only with regard to the rules and regulations governing employee conduct
and the reserved power to require the Respondent Company to discharge con-
version employees can it be said that the Lighting Company exercised or re-
tained elements of control that normally fall within an employer's prerogative.
It must be remembered, however, that unlike the customary arrangement where
work is contracted out the services of the contractor here were to be performed
at places where the contractor's employees came in direct contact with the
customers of the business enterprise for which the contractor's services were
performed. As the Lighting Company pointed out in the manual it issued,
its public relations with its customers represented a valuable business asset.
If the conversion employees failed to observe proper standards of safety and
personal behavior it might well lead, not only to difficulties in the sucessful
completion of the project, but to an impairment of the Lighting Company's
good will. The Lighting Company thus had an interest of its own, entirely
apart from that of an employer, to assure that the contract was performed
not only efficiently, but safely, courteously, and without unnecessary inconven-
ience to its customers as well. To protect that interest in the fulfillment of
the contract, it was necessary for the Lighting Company to reserve to itself
an effective contract sanction. This was provided by the contractual require-
ment imposed on the Respondent Company to discharge any employee whose
continued presence in the job might be deemed by the Lighting Company prej-
udicial to its own interest.
In the special circumstances of this case, I am unable to view such employer
attributes as were reserved by the Lighting Company as so decisive as to preclude
a finding that the Respondent Company's relationship to the Lighting Company
was that of an independent contractor. In determining whether one performing
services on a contract basis for another does so as an employee or as an inde-
pendent contractor, no single element is entitled to absolute finality. And that
is as true of a reserved power to compel a discharge as of any other .8 The
determination must be made on the basis of all relevant facts and circumstances.
Balancing all in this case, I am of the opinion that the Lighting Company did not
retain and exercise that degree of control over the conversion employees as to
warrant finding an employer-employee relationship between them . On the con-
trary, I am persuaded , and I find, in conformity with the declaration expressed
in the conversion contract, that the Respondent Company in its relations to the
9 See , e. g., E. C. William, 88 NLRB 620.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lighting Company was an independent contractor, and to conversion employees
an employer.
But even if my conclusion were different in that regard, the ultimate result
I reach would be the same. If the Respondents' defense is to succeed, it is
necessary for them to establish not only that the conversion employees are
employees of the Lighting Company, but that they are part of the appropriate
collective-bargaining unit covered by the union-shop agreement between the
Lighting Company and the Respondent Union. This they are unable to do on
the facts of this case. Bearing in mind that the gas-conversion project is a
special venture not part of the Lighting Company's regular business of supplying
gas to its customers ; that the work of the conversion employees is not integrated
with the regular operations and supervisory and administrative structure of the
Lighting Company; that it is, however, integrated with the regular operations
and supervisory and administrative structure of the Respondent Company as
a separate organization engaged in gas-conversion work throughout the country ;
that the conversion employees for the most part do not reside in the Long Island
area ; that they neither intend nor may expect to work on the Lighting Company
system once the special project is completed ; that they do, however, intend and
may reasonably expect to work for the Respondent Company on future conver-
sion projects for other utilities; that their wages, hours, and working conditions
are controlled by standards established for conversion employees generally
rather than for Lighting Company employees; that their community of interest
is not with the Lighting Company employees but with conversion employees
working for the Respondent Company on all its projects-bearing all these and
other considerations in mind, I do not think a finding can be made that the
conversion employees were an integral part of the production and maintenance
unit of Lighting Company employees. Thus, even if it had been the intent when
the contract was made to make the conversion group a minor portion of the
existing production and maintenance unit, it would have been illegal as repugnant
to basic public policy. See Chicago Freight Card Parts Co., 83 NLRB 1162.
It is clear, however, that there never was any such actual intent. The pro-
testations of the Respondents to the contrary are belied by their earlier ac-
tions, all pointing unequivocally to the conclusion that the Respondents, and
the Lighting Company, too, looked on the conversion employees of the Respond-
ent Company as falling in a separate unit outside the Lighting Company's con-
tract unit. Under the contract between the Lighting Company and the Union
it was provided in effect that the contract would be inapplicable to work con-
tracted out. In accordance with the provisions of the contract, the Lighting
Company sought and eventually obtained the Union's consent to have the work
performed on a contract basis rather than with its own employees. The Light-
ing Company and the Union made no attempt by agreement between themselves
to extend the contract coverage to the prospective conversion employees. In-
stead, the Respondent Company was asked to work out its own "satisfactory
labor relations" with the Union. In the negotiating meeting between the Re-
spondent Company and the Respondent Union, nothing was said about adopting
the provisions of the Lighting Company contract as applicable to the conversion
employees. An entirely separate agreement was entered into, to which the
Lighting Company was not a party, and in which the Respondent Company
alone assumed the employer obligations, thus providing the clearest proof that
all interested parties viewed the conversion employees as outside the Lighting
Company's contract unit. The Respondent's present position, that the con-
version employees fell within the Lighting Company's contract unit, is patently
no more than an afterthought, more ingenious than sound, devised to meet the
exigencies of the instant proceeding.
JOHN B. SHRIVER COMPANY 43
One further argument, not previously adverted to, warrants brief mention.
At the hearing, it was suggested by the Respondent Union that since under its
certification and its contract with the Lighting Company it had "jurisdiction"
over employees performing work of the type performed by the conversion em-
ployees, it was entitled to protect its "jurisdiction" by requiring the Respondent
Company, as a contractor of that work, to submit its employees to the same con-
ditions governing union membership that would have been applicable had that
work not been contracted out. There is no tenable basis for that argument in
law. It has been found that the union contract with the Lighting Company had
no application to the conversion employees who were both employees of an inde-
pendent contractor and outside the bargaining unit covered by the contract and
the certification. The rights granted employees under the Act are not controlled
by work jurisdictional claims of labor organizations. Under the Act the con-
version employees were entitled to exercise their own freedom of choice in
selecting or rejecting a bargaining agent for their own unit. They could not
be forced into a union not freely selected by them simply because their employer
had contracted to perform for another work which if performed by the other's
employees would have been subject to a valid compulsory union membership
arrangement. See Daniel Hamm Drayage Company, Inc., 84 NLRB 458, enfd.
185 F. 2d 1020 (C. A. 5).
On all the evidence, I reject the Respondents' affirmative defenses. I find, in
accordance with the principles earlier set out, that, by entering into and giving
effect to their agreement for exclusive recognition and compulsory union mem-
bership, the Respondent Company violated Section 8 (a) (1), (2), and (3) of
the Act, and the Respondent Union, Section 8 (b) (1) (A) and 8 (b) (2).
2. Additional violations by the Respondent Company of Section 8 (a) (1) and
(2) resulting from the distribution of checkoff cards, and threats to employees
in connection therewith
The Respondent Company's distribution of the Union's checkoff cards to its em-
ployees for their signature, as well as the threats made by the Respondent
Company's representatives in connection with such distribution,9 constituted, it
is found, further interference with employee self-organizational rights, as well
as assistance and support to the Respondent Union in violation of Section 8 (a)
(1) and (2) of the Act. There is no merit to the Respondent Company's con-
tention that illegal assistance and support may not be found because the Re-
spondent Union was not then engaged in a contest with a rival labor union. Nor
is there merit to its additional contention that it was justified in distributing
the cards because, as the record shows, the Union would have experienced prac-
tical difficulties in itself distributing the cards to the conversion employees.
Whatever validity such a contention might have had if there was a valid union-
shop agreement between the two Respondents, it clearly has none where, as here,
the agreement on which the Respondents rely was illegal to begin with.
3. Discrimination against O'Sullivan ; violation by the Respondent Company of
Section 8 (a) (1) and (3), and by the Respondent Union of Section 8 (b) (1)
(A) and 8 (b) (2)
It is established that an employee need not acquiesce in a condition of em-
ployment unlawfully requiring him to accept a union of his employer's selection,
and that a refusal on his part to continue with his employment under such cir-
P Thomas' threat to employees that those who did not sign would be unable to work on
the project ; Wilt's statement to employees that if they did not sign they could not report
on the job on Monday ; and Adams ' statement to O'Sullivan that he would be forced to let
O'Sullivan go if he did not sign the checkoff.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cumstances does not constitute a quitting of his employment, but, rather, a dis-
criminatory constructive discharge. See, e. g., Hamilton-Schein & Walsh Co.,
80 NLRB 1496; Pacific Plastic d Mfg. Co., Inc., 68 NI}RB 52; Pinkerton's Na-
tional Detective Agency, Inc., 90 NLRB 205. I consider that principle con-
trolling here.
As has been found, the Respondent Company entered into an illegal agree-
ment with the Respondent Union under which its employees were required to
join and pay dues to the Union as a condition of employment. Although O'Sul-
livan may not have been apprised of the exact terms of the agreement, the conduct
of the Respondent Company and the statements of its supervisory personnel were
such as to leave no doubt in O'Sullivan's mind that he would not be permitted
to continue working on the job unless he undertook to pay the union dues that
the Respondents had agreed upon. When O'Sullivan first declined to sign the
checkoff card he was told by Crew Foreman Thomas that if he did not sign,
he could not work. When he still declined, he was visited by Supervisor Wilt who
told him that unless he signed he would not be allowed to report for work the
following Monday, but would have to see Superintendent Adams instead. In his
interview with Adams on Saturday, February 2, Adams expressly confirmed what
had been impressed on O'Sullivan before, that O'Sullivan would be discharged
unless he agreed to pay union dues as a condition of employment. O'Sullivan
was thus reasonably justified in concluding, as I find he did, that he would not
be permitted to continue at work unless and until he acquiesced in the illegal
arrangements made by the Respondents. On all the evidence I am persuaded, and
I find , that O'Sullivan's subsequent failure to report to work was due to his un-
willingness to accept the illegal condition of employment that had been imposed
on him. Accordingly, and notwithstanding that he was not formally discharged,
I find that the termination of his employment was not voluntary, but amounted,
rather, to a constructive discharge. By constructively discharging O'Sullivan on
February 2, 1952, because of his refusal to affiliate with and pay dues to the
Union under the illegal agreement made by the Respondents, I find that the
Respondent Company violated Section 8 (a) (1) and 8 (a) (3) of the Act.
The Respondent Union, to be sure, took no direct affirmative action with
specific regard to O'Sullivan. But it is not exculpated from liability for that
reason . The illegal termination of O'Sullivan's employment flowed from the
discriminatory arrangements made by the Respondent Union with the Respondent
Company, and but for them would not have occurred. Having participated in
the creation of the conditions which resulted in the actual discrimination against
O'Sullivan, the Respondent Union must be deemed to have caused such dis-
crimination in violation of Section 8 (b) (2) of the Act, and thereby also to
have restrained and coerced employees in their rights guaranteed by Section 7
in violation of Section 8 (b) (1) (A) of the Act. See Childs Company, 93 NLRB
281; Acme Mattress Company, 91 NLRB 1010; Utah Construction Company, 95
NLRB 196; International Union, U. A. W., 92 NLRB 968. It is so found.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the activities of the Respondent Company described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
JOHN B. SHRIVER COMPANY 45
V. TSE $EMEDY
Having found that the Respondents have engaged in certain unfair labor
practices, it will be recommended that they cease and desist therefrom, and that
they take certain affirmative action designed to effectuate the policies of the
Act.
It having been found that the Respondent unlawfully sponsored, assisted, and
contributed support to the Respondent Union in violation of Section 8 (a) (2)
by, among other things, recognizing the Union as the exclusive bargaining repre-
sentative of its employees engaged in conversion work on Long Island and enter-
ing into an agreement with it covering said employees, it will be recommended
that the Respondent Company cease giving effect to said agreement, or to any
extensions, modifications, or supplements thereof, or to any superseding agree-
ment with the Union, unless and until the Union shall have been certified by the
Board as the representative of the Respondent Company's employees. Nothing
herein, however, shall be construed as requiring the Respondent Company to
vary wages, hours of employment, rates of pay, seniority, or other substantive
provisions in its relations with the employees themselves, which the Respondent
Company has established in the performance of said agreement, or to prejudice
the assertion by employees of any rights they may have thereunder.
Having found that the Respondent Company illegally coerced its employees
on its Long Island project to pay dues to the Respondent Union as a condition
of their employment and to execute checkoff cards authorizing the Respondent
Company to deduct periodic dues from their wages for remittance to the Union,
it will be recommended that the Respondent Company be ordered to make whole
each of its employees on said project for the full amount of dues deducted from
his wages. It will further be recommended that the Respondent Company cease
giving effect to any such checkoff authorizations executed prior to the date of its
compliance with this recommended order.
It has been found that the Respondent Company on February 2, 1952, dis-
criminated with regard to the hire and tenure of employment of George M.
O'Sullivan in violation of Section 8 (a) (1) and (3) of the Act and that the
Respondent Union caused the said Company to do so in violation of Section 8
(b) (2) and 8 (b) (1) (A) of the Act. It will therefore be recommended that
the Respondent Company be ordered to offer O'Sullivan immediate reinstatement
to his former or a substantially equivalent position without prejudice to his
seniority and other rights and privileges , and that the Respondents, jointly and
severally , be ordered to make O' Sullivan whole for any loss of pay he may have
suffered , by payment to him of a sum of money equal to that which he normally
would have earned as wages from the date of the discrimination to the date of
the Respondent Company's offer of reinstatement, less his net earnings during
said period . Loss of pay shall be determined by deducting from a sum equal to
that which O'Sullivan would normally have earned for each quarter or portion
thereof, his net earnings , if any , in other employment during that period. Earn-
ings in one particular quarter shall have no effect upon the back-pay liability for
any other quarter. See F. W. Woolworth Company, 90 NLRB 289. The quarterly
periods described herein shall begin with the first day of January, April, July,
and October. The Respondent Company is to make available to the Board, upon
request, payroll and other records in order to facilitate the checking of the amount
of back pay due. The Union may terminate its liability for further accrual of
back pay to O'Sullivan, by notifying the Respondent Company in writing that it
has no objection to O'Sullivan's reinstatement and continued employment by the
Company. In the event such notice is given by the Union, it shall not thereafter
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be liable for any back pay accruing after 5 days from the giving of such notice.
Absent such notification, the Union shall remain jointly and severally liable with
the Company for all back pay that may accrue until the Company complies with
the reinstatement requirements of the recommended order.
The Respondent's illegal activities are such as to indicate a purpose to
defeat the Company's employees in the exercise of other basic rights under
the Act. The unfair labor practices found to have been committed are poten-
tially related to other unfair labor practices proscribed by the Act, and danger
of their commission in the future is to be anticipated from the Respondents'
conduct in the past. The preventive purpose of the Act will be thwarted unless
the remedial order is coextensive with the threat. In order, therefore, to
make effective the interdependent guarantees of Section 7, and thus effectuate
the policies of the Act, the recommended order will provide that the Respondents
cease and desist from in any manner infringing upon the rights of employees
guaranteed by the Act.
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. Local 1049, International Brotherhood of Electrical Workers, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By sponsoring, assisting, and contributing support to the Respondent
Union, and thereby also interfering with, restraining, and coercing employees
in the exercise of rights guaranteed in Section 7 of the Act, the Respondent
Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (2) and 8 (a) (1) of the Act.
3. By entering into and giving effect to agreements conditioning the hire and
tenure of employees of the Respondent Company upon membership in and dues
payments to the Respondent Union in contravention of Section 8 (a) (3) of the
Act, the Respondents have engaged in and are engaging in unfair labor practices,
the Respondent Company within the meaning of Section 8 (a) (3) and 8 (a) (1)
of the Act, and the Respondent Union within the meaning of Section 8 (b) (2)
and 8 (b) (1) (A) of the Act.
4. By discriminating with regard to the hire and tenure of employment and
terms and conditions of employment of George M. O'Sullivan , thereby encour-
aging membership in the Respondent Union, and interfering with, restraining,
and coercing employees in the exercise of rights guaranteed by Section 7 of the
"Act, the Respondent Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act.
5. By causing and attempting to cause the Respondent Company to discrimi-
nate against O'Sullivan in violation of Section 8 (a) (3) of the Act, and thereby
also restraining and coercing employees in the exercise of rights guaranteed by
Section 7 of the Act, the Respondent Union has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1)
(A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]