Before MARIS, STALEY and HASTIE, Circuit Judges.
This is a petition by the National Labor Relations Board for enforcement of its order requiring the respondents, McCarron Co. and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 470, AFL, to cease and desist from the commission of certain unfair labor practices and requiring the company to offer reinstatement to one George Paytas and jointly and severally with the union, to make him financially whole.*fn1
A history of the present company and its predecessors is necessary to a determination of what we consider the dispositive issues.
Paytas was hired as a truck driver by Charles McCarron in October of 1948. When Paytas was hired, Charles McCarron was the sole proprietor of the business, engaged principally in hauling dirt from excavations to fill sites or dumpts in the Philadelphia area. His services were performed almost exclusively for Vare Brothers, a partnership consisting of George A. Vare and Edwin H. Vare, Jr., specializing in the installation and maintenance of aerial and underground electric cables. The latter firm performed a substantial amount of work each year for the philadelphia Electric Company, a public utility engaged in interstate commerce. In August of 1949, after Paytas had worked for about ten months, Charles McCarron died. His executors took over and operated the business, all the while attempting to sell it as a going concern. The business was operated by the estate from August of 1949 until March 31, 1950, when actual operation and control were taken over by the Vare brothers, under the name of McCarron Co., pursuant to an agreement of sale between the executors and the Vares. Another agreement between the same parties granted to the Vares the right to use the name "McCarron." The assumed name "McCarron Co." was duly registered under the Pennsylvania Fictitious Names Act.This trucking business was operated in substantially the same manner by each of the three proprietors: Charles McCarron as an individual, the estate of Charles McCarron, and the Vare Brothers, firm, doing business as McCarron Co.
Paytas testified that from the inception of his employment by Charles McCarron until he was allegedly discharged in April of 1950, he was given less than full-time work because he was unable to get a union book. Daily work assignments were made on a seniority basis, but all those drivers with union books, whether hired before or after Paytas, would be sent out first. Then, if there were any jobs left, he would be sent out. If there were only enough assignments for drivers with union books, he would go home. His testimony in this respect was confirmed by that of Otto P. Becker who was the bookkeeper for Charles McCarron, and manager and bookkeeper for the estate and for McCarron Co. as presently organized. Becker said that the plan described by Paytas was followed under each of the three owners and was a well-defined policy even though there was no union-security contract in effect.
Paytas had been a member of the union in good standing for some time, but in 1943 had stopped paying dues. On quite a few occasions after being hired by Charles McCarron, he had attempted, unsuccessfully, to acquire a union book, proposing that he pay the back dues by installments and stating he was unable to comply with the union's insistence that he pay the back dues in a lump sum.
The culmination of this discriminatory treatment came on April 28, 1950, when, Paytas says, he was told by Becker that he was not wanted any longer because he did not have a union book. Considering himself discharged, he did not report for work again.
On August 14, 1950, Paytas filed the original charges, the one against the union alleging, in substance, that in February and March of 1950 it caused the Charles McCarron Co. to discriminate against him in violation of Section 8(a)(3) of the Act in that employment was denied him because of his failure to join the union. The original charge against the company alleged that the Charles McCarron Co. refused to give him full-time employment in February and March of 1950 because he had been unable to get a work permit from the union.
No complaint was issued upon the basis of these charges since the Board had no jurisdiction over the activities of Charles McCarron as an individual or over his estate because neither firm was in commerce within the meaning of the Act.
On June 12, 1951, Paytas filed an amended charge against each respondent. The amended charge against the company is as follows:
"McCarron Co., a partnership consisting of George A. Vare and Edwin H. Vare, Jr., co-partners, through its officers and agents, deprived George Paytas of full time work from on or about April 1, 1950, to on or about April 28, 1950; terminated his employment on or about April 28, 1950, has failed and refused to reinstate him to his former job or to a substantially equivalent job since April 28, 1950, all because he was not a member of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 470, A.F.L., in good standing; by these and other acts, including questioning of Paytas as to his union affiliation, the urging of Paytas to join said Union, and the threatening loss of benefits or employment to Paytas unless he should join said Union, it interfered with, restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act."
The following is the amended charge against the union:
"The above union, through its officers and agents, on and after April 1, 1950, caused and attempted to cause the McCarron Co., employer of the charging party, to discriminate against him in violation of Section 8(a)(3), with ...