Northeast Coastal, Inc.

National Labor Relations Board - Board Decisions

Aug 12, 1959

124 N.L.R.B. 441 (N.L.R.B. 1959)

NORTHEAST COASTAL, INC. 441
aforesaid appropriate unit , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with United Textile Workers of
America as the exclusive representative of the employees in the bargaining unit
described below.
WE WILL, upon request, bargain with United Textile Workers of America
as the exclusive representative of all the employees in the bargaining unit
described below, with respect to rates of pay, wages, hours, and other conditions
of employment, and if an understanding is reached, embody such understand-
ing in a signed agreement.
The bargaining unit is:
All production and maintenance employees employed at our plant in
Salisbury, North Carolina, including inspectors, shipping clerks, janitors,
and the machinist, but excluding office employees and supervisors as de-
fined in the Act.
LEISURE LADS, INC.,
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.
Northeast Coastal , Inc. and Thomas Donkis. Case No. 2-CA-5971.
August 12, 1959
DECISION AND ORDER
On April 22, 1959, Trial Examiner George L. Powell 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 copy of the
Intermediate Report attached hereto. Thereafter, only the General
Counsel filed exceptions which are directed to remedial portions of
the Intermediate Report.
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 [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in this case and
124 NLRB No. 60.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the modifications set forth below.
The Trial Examiner found that the Respondent violated Section
8(a) (3) and (1) of the Act by discriminatorily paying higher wages
to members of Local 282 of the Teamsters than it paid to employees
performing the same work who were not members of that union. He
further found that the Respondent similarly violated the Act by con-
tributing money to Local 282's welfare trust fund and pension trust
fund for the benefit of employee members, without making com-
parable provisions for nonmember employees. No exceptions were
filed to these findings, which we adopt.
To remedy these unfair labor practices, the Trial Examiner recom-
mended, among other things, that the Respondent be ordered to cease
and desist from making contributions to the above-mentioned welfare
and pension trust funds or any like or related fund for the benefit of
Local 282's members only. In accordance with the General Counsel's
request, we find it a more appropriate remedy to direct the Respond-
ent to cease and desist from making such contributions without pro-
viding for the employees who are not members of Local 282 equivalent
coverage and benefits under these funds, or under some other plan
which is actuarily sound.
The General Counsel also excepts to the Trial Examiner's refusal
to provide affirmative relief to nonmember employees who were dis-
criminated against by reason. of the Respondent's failure to provide
coverage and benefits equivaent to those given employee members
under the welfare and pension trust funds.' The Trial Examiner
was of the opinion that neither he nor the Board possessed the power
to afford such relief. We do not agree.2 Where, as here, an employer
denies certain employment benefits to employees solely because they
are not members of a union, but grants such benefits only to members
of that organization, it is only equitable that the nonmembers be given
the same or equivalent benefits which they would otherwise have en-
joyed, were it not for their nonmembership. Effectuation of the
policies of the Act requires it.3 Indeed, the Trial Examiner, in effect,
recognized the appropriateness of equal treatment for members and
nonmembers in his recommended cease-and-desist order mentioned
above. Accordingly, we shall direct the Respondent to make whole
the employees discriminated against for any financial loss suffered
by reason of the Respondent's failure to provide coverage and benefits
comparable to those given to members of Local 282 under the welfare
1 We adopt the Trial Examiner's recommendation with respect to making whole the
employees who were denied the higher wages because they were not members of Local
282.
9 Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 193.
a Cf. Local 140, Bedding, Curtain & Drapery Workers Union etc. (Englander Company,
Inc.), 109 NLRB 326, 329; Jim O'Donnell, Ind., 123 NLRB 1639.
NORTHEAST COASTAL, INC. 443
and pension trust funds. In addition, if the Respondent continues to
provide pension benefits for employee members and to make contribu-
tions to Local 282's pension trust fund on behalf of such employees,
we shall also direct the Respondent to make similar arrangements
with Local 282 for comparable benefits to be accorded to the non-
members, if Local 282 is willing to do so, or to provide for comparable
benefits in some other pension plan which is actuarily sound. More-
over, the Respondent shall pay into such pension fund, on behalf of
each nonmember employee, such sums of money required to secure
similar pension benefits for each nonmember employee for the period
of his ' discrimination. If, however, the Respondent discontinues
granting pension benefits to employee members of Local 282, then
the Respondent shall pay to each nonmember employee discriminated
against such sum of money it would have had to pay into 'a pension
fund to provide comparable pension benefits for him beginning with
the date of his discrimination to the date of discontinuance of pen-
sion benefits. We find that the foregoing remedy will place the non-
member employees in substantially the same position as member
employees.
As we are persuaded that the Respondent's past conduct in viola-
tion of Section 8(a) (1) and (3) of the Act reveals an attitude of
opposition to the purposes of the Act, we find that there exists a
potential threat of future violations and shall, therefore, include a
broad cease-and- desist provision in our Order.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Northeast
Coastal, Inc., New York, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Encouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inde-
pendent, Local No. 282, or any other labor organization of its em-
ployees, by discriminating against employees in regard to their hire
and tenure of employment, or any term or condition of employment,
because of their nonmembership in such organization.
(b) Making contributions to the said Union's welfare trust fund
and pension trust fund or any like or related funds for employees
who are members of said Union, without providing equivalent cover-
age and benefits under said funds or under some other plan which is
actuarily sound, on behalf of employees who are not members of that
Union.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Promising its employees economic benefits and other benefits
if they become members of the Union, and threatening employees with
lower pay, discharge, or other reprisals if they do not become members
of the Union.
(d) Telling employees to become members of the Union, switching
employees from job to job, turning employees off jobs because of their
nonmembership in that Union, and interrogating employees as to
their union membership in a manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1) of the Act.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist the above Union or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities except to the
extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as au-
thorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate' the policies of the Act :
. (a) " Make whole Thomas Donkis and all other employees who were
not members of International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independent, Local No. 282,
for any loss of pay and welfare and pension benefits they may have
,suffered by reason of the Respondent's discrimination against them,
in the manner set forth in the section of the Intermediate Report
entitled "The Remedy" as modified in the Board's decision.
(b) Preserve and make available to the Board or its agents upon
Tequest, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze and compute the amount of
back pay and other moneys due under the terms of this Order.
(c) Post at its place of business in New York, New York, copies
of the notice attached hereto as "Appendix." 4 Copies of such notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof, and maintained by it for at
least 60 consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said
notice is not altered, defaced, or covered by any other material.
4 In the event that this Order is enforced by a 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."
NORTHEAST COASTAL, INC. 445
(d) Notify the said Regional Director for the Second Region in
writing, within 10 days from the date of this Order, as to what steps
the Respondent has taken to comply herewith.
APPENDIX
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, you are notified that :
WE WILL NOT encourage membership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent, Local No. 282, or any other labor or-
ganization of our employees, by discriminating in regard to the
hire and tenure of employment, or any term or condition of em-
ployment, of any of our employees because of their nonmember-
ship in such organization, particularly we will not pay employee
members of the above Union wage rates greater than those paid
nonmembers of this Union when our employees are doing the
same or similar work.
WE WILL NOT make contributions to the said Union's welfare
trust fund and pension trust fund or any like or related funds
for our employees who are members of that Union, without pro-
viding equivalent coverage and benefits under said funds or under
some other plan which is actuarily sound, on behalf of our
employees who are not members of that Union.
WE WILL NOT promise our employees economic benefits and
other benefits if they become members of the above Union or
threaten our employees with lower pay, discharge, or other re-
prisals if they do not become members of the above Union.
WE WILL NOT tell employees to become members of the above
Union, or switch employees from job to job, or turn employees
off jobs because of their nonmembership in the above Union, or
question employees as to their union membership, in a manner
constituting interference, restraint, or coercion in violation of
Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce 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 collectively through rep-
resentatives of their own choosing, to engage in concerted activi-
ties for the purposes 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-
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inent requiring membership' in a labor organization as a condi-
tion of employment, as authorized in Section 8(a) (3) of the Act.
WE WILL make whole Thomas Donkis and all other employees
who were not members of International Brotherhood of 'Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Inde-
pendent, Local No. 282, for any loss of pay and welfare and pen-
sion benefits they may have suffered by reason of our discrimi-
nation against them.
All our employees are free to become or refrain from becoming
members of the above Union or any other labor organization.
NORTHEAST COASTAL, INC.,
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding began with the filing of a charge on June 2, 1958, by Thomas
Donkis, and, with all parties represented, was heard .before the duly designated Trial
Examiner in New York, New York, on February 24, 1959, on complaint of the
General Counsel and answer of Northeast Coastal, Inc., herein called the Respondent.
The first major issue in the case is whether Respondent violated Section 8 (a) (1)
and (3) of the National Labor Relations Act, as amended, herein called the Act,
by paying employees more money if they were members of one local union than
if they were members of another local. The second major issue is whether the same
sections of the Act were violated when similar disparate treatment of employees as
to welfare funds and pension funds were given employees dependent upon their
union affiliation. Other issues such as jurisdiction, remedy, and posting are disposed
of herein.
At the close of the hearing, Respondent made five separate motions to dismiss the
complaint. Disposition of these motions, upon which ruling was reserved at the
conclusion of the hearing, is made by the following findings, conclusions, and
recommendations. After the hearing had closed, the General Counsel, on February
25, 1959, moved to conform the pleading to the proof and served a copy of said
motion on Respondent and Respondent's counsel. There being no objection to this
motion, it is hereby granted.
The parties presented oral argument but did not file briefs.
Upon the entire record, I hereby make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent, a New York corporation, is engaged at its principal office and place
of business in New York, New York, in the business of transporting excavated
materials and sand, gravel, and other materials, and providing and performing
related services. During the year ending June 1, 1958, Respondent, in the course
and conduct of its business operations, performed services valued at in excess of
$100,000, of which, services valued at in excess of $80,000 were performed in States
other than the State of New York.
As stated above, Respondent made five motions to dismiss the complaint at the
close of the hearing. Three of these motions related to the jurisdiction of the
National Labor Relations Board, herein called the Labor Board. Specifically, the
grounds for the motions (not in the order made) were: (1) Respondent is not
engaged in interstate commerce; (2) the Labor Board lacks authority to establish
NORTHEAST COASTAL, INC. 447
jurisdictional standards ; and (3 ) the standards established are arbitrary , capricious,
and unreasonable.
The three motions are hereby denied . Evidence adduced at the trial is that
Respondent obtained a contract to perform its services in Connecticut and moved
its equipment of some four or six trucks from New York to Connecticut in order
to perform the work. When the job was done, Respondent moved its equipment
back to New York. Within the year ending June 1, 1958, Respondent performed
services valued at in excess of $100,000 , of which in excess of $80,000 was per-
formed in Connecticut .' These dollar amounts satisfy the Labor Board 's standards
of jurisdiction . Turning to the second motion relating to the Labor Board 's authority
to establish standards , the Supreme Court has said,
Even when the effect of activities on interstate commerce is sufficient to
enable the [ Labor ] Board to take jurisdiction of a complaint , the [Labor]
Board sometimes properly declines to do so, stating that the policies of the
Act would not be effectuated by its assertion of jurisdiction in that case.
[N.L.R.B . v. Denver Building and Construction Trades Council, 341 U.S. 675,
684 (1951).]
The courts of appeals have approved the Labor Board 's practice , for example in
Optical Workers ' Union Local 24859, et al. v. N.L.R.B ., 227 F. 2d 687, 691 ( 1955),
the Fifth Circuit said,
[T]he [Labor ] Board has authority to adopt . . . [standards of jurisdiction]
reasonably calculated to carry out its statutory duties . . . [and ] the standards
adopted by the Board are reasonable. .. .
The concluded finding that the standards are reasonable relates to the standards
established in 1954. ( See Jonesboro Grain Drying Cooperative, 110 NLRB 481,
and for a discussion of the Labor Board 's practice see Breeding Transfer Co., 110
NLRB 493.) The most recent jurisdiction standard applicable to a respondent
such as here is contained in Siemons Mailing Service , 122 NLRB 81. I find the
Respondent is engaged in commerce within the meaning of the Act and that assertion
of jurisdiction is warranted.
If. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Independent , Local No. 282, herein called the Union or Local 282, is
a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The events
The complaint alleged and the facts admitted by the answer are that during the
period from about March 1958 to June 2, 1958 , Respondent paid to the employees
who were not members or prospective members of Local 282 a rate of pay lower
than was paid to members and prospective members of Local 282 ; and that during
the period from May 1958 to about September 1958, Respondent made payments
to the welfare trust fund of Local 282 and to the pension trust fund of Local 282 on
behalf of its employees who were members or prospective members of Local 282,
and provided coverage benefits under said trust funds to such employees, but
failed to make payment to said trust funds on behalf of its employees who
were not members or prospective members of Local 282, and failed to provide cov-
erage or benefits under said trust funds , or under any plan or in any manner, on
behalf of its employees who were not members or prospective members of Local 282.
There are no factual issues in the case as all facts are admitted . The only witness
in the case was the secretary-treasurer of Respondent , Andrew J. Francavilla. He
supplemented the facts admitted above and made additional admissions . Pertinent
parts of his testimony revealed that Respondent renewed its operations in New
York in March 1958 at the end of a strike in the industry which took place between
January and March 1958. Operations were slow at first as "the strike had been
so long that there was nothing ready to put everybody to work right away," but
at that time Respondent had three or four employees driving. Respondent , during
the period involved, was recognizing Local 282 as the majority representative of its
1 I find from the testimony given by Respondent 's official that the Respondent's entire
business was moved to Connecticut shortly after March 1956 , where it remained until its
return to New York about the end of November 1957.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and was following the terms of a contract which long since had expired.
The wage scale used prior to the strike was put into effect. Under it, Respondent
was paying driver employees who were members of Local 282 at the hourly rate of
$2.75 while paying driver employees who were nonmembers of Local 282 at the
hourly rate of $2.50. ("Nonmembers" of Local 282 were in fact members of
Local .191, a local union affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Independent, having jurisdiction
in Connecticut, except for the Charging Party, Donkis, who was not a member of
either Local as will be developed further.)
.,. Thomas Donkis, Charging Party, had previously worked for the Respondent at a
time when it was performing its service in Connecticut, and was rehired in New
York,in March 1958, after Respondent had returned to New York. At the time of
the rehire Francavilla told Donkis that he had to transfer to Local 282. Donkis told
Francavilla that he had no book in Local 191, whereupon the latter told Donkis he
had to get a book with Local'282 but hired him on the promise he was going to get
a book in Local 282. After March 1958, Francavilla switched Donkis from job to
job in an attempt to keep the union delegate who checked union books on the job
from finding out he was on the job and in addition kept telling the delegate that
Donkis was getting his book. Also, Francavilla turned Donkis off a job because
he had no book. Finally on or about June 2, 1958, the following conversation took
place between Francavilla and Donkis with the former testifying, "His [Donkis']
two trucks weren't going to work, so he and the man before him were just standing
there, ready to go home. 1-usually buy coffee for the drivers in the morning. We
were having coffee. It was just a matter of conversation. I says, `How are you mak-
ing out with your book, Tom?' He says, `I ain't going to get no book. I am going
to do this with those people in Washington.' I thought the fellow was kidding along.
I kidded right with him. I see he was serious. I says, `If you are not satisfied, leave.
I will pay you off and that's it. I wouldn't work any place I was not satisfied.' He
says, `Okay, pay me off' and that was it."
Francavilla testified further about the same conversation, "In the course of speak-
ing, like I said, you know, he says he ain't going to get no book, he is going to do this
here,2 we kept kibitzing back and forth. I saw the fellow was serious and I says to
him that he is going to have to get a book because I can't afford to keep bringing this
truck home. On account of him I keep six trucks out. That's $54. Yet I pay him
a day's pay."
On the pay period immediately following Donkis' termination, the new hourly
pay scale of $3 for Local 282 was put into effect. In the words of Mr. Francavilla,
the [Local] 282 men got $3 and the other Local also got what their books
called for."
B. The position of the parties
In oral argument at close of the hearing the General Counsel, among other things,
spoke.briefly as to the remedy he was seeking should the alleged violation be found.
In order to "make whole" the nonmembers of Local 282, he not only sought to
have each nonmember paid the difference between what he was paid in wages and
what he would have received had he been a member of Local 282, but also he
wanted a remedy for the differential caused by the payment of money into the two
funds which remedy admittedly would be greater than an ordinary cease-and-desist
order. For the discrimination in making payments into the welfare trust fund, the
General Counsel asked reimbursement for any benefits a nonmember of Local 282
would have been entitled to had he been a member of Local 282. And with respect
to the pension trust fund, the General Counsel sought to put the nonmember of
Local 282 in as good a position pensionwise as a member of Local 282.
Finally, the General Counsel stated for the record he was not contending that
Donkis was discriminatorily discharged (a "constructive discharge" hence is not al-
leged). Rather he based the Section 8(a) (3) aspect of the case solely on and limited
his requested remedy to (1) the different wage rate paid employees depending upon
union membership, and (2) the disparate treatment with respect to welfare trust
fund and pension trust fund accorded employees depending upon their union member-
ship. However, he did contend that there were independent violations of Section
8(a) (1) such as the switching of Donkis from job to job., -
Counsel for Respondent argued the "facts of life," i.e., the only reason the Com-
pany made different payments with respect to wages and trust funds was because it
wanted to stay in business. He argued that Respondent was not in the business of
setting up pensions and.trusts and it resists establishing any funds for the nonmem-
2I find the phrase ". . . be is going to do this here" relates to this case before the
Labor Board which Donkis was going to put in action by filing the charge herein.
NORTHEAST COASTAL, INC. 449
hers. It would make whole any employee paid on a differential rate of pay , if found
discriminatory under the Act, and cease and desist , but as there was no intent to dis-
criminate , and there was only one employee in the Respondent 's office ( a member
of Local 282 employed on the scales ) the usual posting of notices should be dis-
pensed with. Not only dispensed with under all the circumstances including the
fact that the Company might lose business from potential customers who come into
the office , but also because there is no authority for the posting of notices in the
Act itself.
C. Concluding findings
When Respondent , recognizing Local 282 as the majority representative of its
employees , paid its employees who were members of Local 282 more wages than it
paid identical employees who were nonmembers of Local 282, it discriminated
against those of its employees who were nonmembers of Local 282 in favor of those
employees who were members of Local 282 . Since this discrimination is inherently
conducive to increased membership in Local 282 and since discrimination that en-
courages membership in a labor organization is outlawed by Section 8(a)(3) of
the Act, the Respondent violated this section. In addition , by the above conduct,
the Respondent has interfered with, restrained , or coerced employees in the exer-
cise of the rights guaranteed them in Section 7, namely, the right to refrain from
forming, joining , or assisting labor organizations , and accordingly violated Sec-
tion 8(a)(1) of the Act. The Supreme Court, upholding the Second Circuit, said.
in a similar case:
The court there held that disparate wage treatment of employees based solely
on union membership status is "inherently conducive to increased union
membership ." In holding that a natural consequence of discrimination, based
solely on union membership or lack thereof , is discouragement or encourage-
ment of membership in such union , the court merely recognized a fact of
common experience-that the desire of employees to unionize is directly pro-
portional to the advantages thought to be obtained from such action. No more
striking example of discrimination so foreseeably causing , employee response
as to obviate the need for any other proof of intent is apparent than the pay-
ment of different wages to union employees doing a job than to non-union
employees doing the same job. [Radio Officers Union v. N.L.R.B . ( Gaynor
News Company , Inc.), 347 U.S . 17, 46.]
It follows that the disparate treatment of employees in that Respondent paid in
money to the welfare trust fund and to the pension trust fund for its employees who
were members of Local 282 but made no similar provision for its employees who
were not members of Local 282 is likewise a discrimination which encourages
membership in Local 282 and hence this conduct also violates Section 8 ( a)(3) of
the Act. As this conduct also interferes with , restrains , or coerces employees in
the exercise of their Section 7 rights under the Act , the Respondent violated Sec-
tion 8(a) (1) of the Act. Accordingly , the two motions made by Respondent at
the close of the hearing that the General Counsel ( 1) failed to prove the allega-
tions, and (2) failed to prove that Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and ( 3), are denied.
Based on the conduct admitted by Mr. Francavilla , Respondent 's secretary-
treasurer , I find , as alleged in the complaint , that on or about June 2, 1958, and
during the period from March 15 to June 1, 1958 , Respondent promised its em-
ployees economic benefits and other benefits if they became members of Local 282,
and threatened employees with lower pay, discharge , and other reprisals if they
did not become members of Local 282. This conduct violated Section 8 (a))(!) of
the Act. By considering the oral argument made by the General Counsel at the
close of the proceeding as a request for more precise findings of violations of Sec-
tion 8(a)(1) and accordingly as an amendment to the complaint made on the
record, I find the following conduct to violate Section 8(a)(1) of the Act:
(1) Francavilla told Donkis at the time of his rehire in March 1958 that he had
to transfer to Local 282 ; ( 2) Francavilla switched Donkis from job to job because
he was not a member of Local 282;3 ( 3) Francavilla turned Donkis off a job be-
cause he had no book in Local 282; 4 (4 ) interrogation by Francavilla on or about
June 2, 1958 , when he asked Donkis , "How are you making out with your book,
Tom?"; and ( 5) the statements made by Francavilla to Donkins on or about June 2,
1958, "I will pay you off and that 's it. I wouldn 't work any place I was not satis-
8 There is no issue as to whether this is a violation of Section 8(a) (3).
Same as above.
525543-60--vol. 124-30
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled," and that he (Donkis) was going to have to get a book in Local 282 "because
I can't afford to keep bringing this truck home."
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 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 obstructing commerce and the free
flow of commerce.
V. THE REMEDY
I will recommend the usual remedy making whole those employees who from
March 1958, when Respondent renewed his operations in New York, received less
wages because they were nonmembers of Local 282 than members of Local 282
received, by ordering Respondent to pay them the difference in the wages. I will
not recommend a remedy as suggested by the General Counsel with respect to the
disparate treatment in the welfare trust fund and pension trust fund other than
the usual cease-and-desist order. It is beyond the power of Respondent and the
Labor Board to order the Union to take into membership any particular employee.
As membership is necessary to qualify for welfare payments and pensions, I have
no power to qualify nonmembers of Local 282 for benefits under the trust funds.
Likewise, as Respondent is the employer and not an insurer of employees, the total
liabilities it is subject to would be the payment of money equal to that paid into the
two trust funds. But a payment of this money to nonmembers of Local 282 would
not be the equivalent of giving them coverage under the trusts and hence would not
make them whole. Rather, it would appear to be more in the nature of a penalty
assessed against the employer, and as such would exceed the provisions of the Act.
Accordingly, I find the policies of the Act would not be effectuated by the establish-
ment of trusts by Respondent, or the payment of money by Respondent to non-
members of Local 282 equivalent to the money paid into the trust funds for the
benefit of members of Local 282.
Finally, with respect to the two points raised by Respondent as to the posting of
notices, the Supreme Court has answered the second point by saying,
Only a word need be said of that part of the Board's order requiring the
posting of notices. We have often held that the posting of notices advising
the employees of the Board's order and announcing the readiness of the em-
ployer to obey it is within the authority conferred on the Board by § 10(c) of
the Act "to take such affirmative action . as will effectuate the policies"
of the Act. [Cases cited.] [N.L.R.B. v. Express Publishing Company, 312
U.S. 426, 438 (1941).]
Further, as the circumstances stated by Respondent are not sufficient to cause a
departure from the universal practice of the Labor Board in ordering notices to be
posted, I will deny Respondent's request to deviate from this practice.
In order to insure expeditious compliance with the recommended back-pay order,
I shall recommend that the Respondent, upon reasonable request, make any perti-
nent records available to the Board and its agents.5
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminating with respect to the payment of wages, and the payment of
money into the welfare trust fund and into the pension trust fund, based upon
membership in Local 282, as found above, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
4. By the above conduct, and by otherwise interfering with, restraining, and co-
ercing its employees in the exercise of rights guaranteed them by Section 7 of the
Act, as found above, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
[Recommendations omitted from publication.]
5F. W. Woolworth Company, 90 NLRB 289.