Local 170, International Brotherhood of Teamsters

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LOCAL 170, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and EDWARD J. IVERS, JR. and ANCHOR MOTOR FREIGHT, N. Y. CORPORATION, PARTY TO THE CONTRACT . Case No. 1-CB-266. November 15, 1954 Decision and Order On July 2, 1954, Trial Examiner Stephen S. Bean issued his Inter, mediate Report in the above-entitled proceeding, finding that the Re- spondent Union 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 In- termediate Report attached hereto. Thereafter, the Respondent Union and the Party to the Contract filed exceptions to the Intermediae Re- port and supporting briefs.' The Board has reviewed the' rulings made by the Trial Examiner at; the hearing and finds that no prejudicial error was committed. The. rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in this case,- and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Order Upon the basis of the entire record in this case, and pursuant to Sec-, tion 10 (c) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board hereby orders that Respondent Union, Local 170, International Brotherhood of Teamsters, Chauffeurs, Ware- houselnen and Helpers of America, AFL, its officers, representatives, and agents, shall : 1. Cease and desist from : (a) Entering into, renewing, or enforcing any agreement, with Anchor Motor Freight, N. Y. Corporation, or with any other em- ployer, which requires, - as a condition of employment, membership in the Union or the Union's consent thereto, or has the effect of in ducing Anchor Motor Freight, N. Y. Corporation, or any other em- ployer to discriminate in regard to terms or conditions of hire against employees by reason of membership or'nonmembership in the Union, unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. (b) Causing or attempting to cause Anchor Motor Freight, N. Y. Corporation, its officers, agents, successors, or assigns, to deprive any of their employees of their seniority or otherwise to discriminate against them except in accordance with Section 8 (a) (3) of the Act. 1 The Respondent Union's request for oral argument is denied as the record and briefs, in our opinion, adequately present the issues and the positions of the parties 110 NLRB No 140. LOCAL 17 0, INTERNATIONAL BROTHERHOOD OF TEAMSTERS 851 (c) In any other manner restraining or coercing employees of An- chor Motor Freight, N. Y. Corporation, its successors or assigns, in the exercise of their right to engage in, or to refrain from engaging in, any or all concerted activities guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Immediately notify in writing Edward J. Ivers, Jr., and An- chor Motor Freight, N. Y. Corporation, that it has no objections to and requests the immediate reinstatement of Edward J. Ivers, Jr., to his former or substantially equivalent position and standing on the seniority list of, and as an employee of, Anchor Motor Freight, N. Y. Corporation. (b) Make whole Edward J. Ivers, Jr., for any loss of pay, and other incidents of the employment relationship, which he may have suffered because of the discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimination to 5 days after the date on which the Union serves upon the Company the above-de- scribed written request. The loss of pay, if any, shall be computed upon a quarterly basis in the manner established by the Board.2 (c) Deduct from the amount due to Edward J. Ivers, Jr., such sums, if any, as would normally have been deducted from his wages by the Employer for deposit with State and Federal agencies on account of social-security and other similar benefits and to pay to the appropriate State and Federal agencies, to the credit of Edward J. Ivers, Jr., and the Employer, a sum of money equal to the amount which, absent the discrimination, would have been deposited to his credit by the Employer, either as a tax upon the Employer or on account of deduc- tions made from Ivers' wages by the Employer, on account of social- security or other similar benefits. (d) Post in conspicuous places in its business office in Worcester, Massachusetts, and wherever else notices to its members are customar- ily posted, copies of the notice attached to the Intermediate Report and marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by Respondent, be posted by it immediately upon receipt there- of, and maintained by it for at least sixty (60) consecutive days there- after. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 2 F TV TVoolevot th. Companvy, 90 NLRB 289 3 This notice, however, shall be, and it hereby is, amended by sticking from the first paragraph thereof the words "Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order." 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 Couit of Appeals, Enforcing an Order." 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Mail to said Regional Director signed copies of the notice at- tached to the Intermediate Report and marked "Appendix A," for posting, the Employer willing, at the office and place of business of the Employer in Framingham, Massachusetts, in places where notices to employees are customarily posted. Copies of said notice, to be fur- nished by said Regional Director, shall, after being duly signed by Respondent, be forthwith returned to the Regional Director for such posting. (f) Notify the Regional Director, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER PETERSON took no part in the consideration of the above Decision and Order. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge filed February 19, 1954, by Edward J. Ivers, Jr., hereinafter referred to as Ivers, or the Charging Party, the General Counsel for the National Labor Relations Board, hereinafter called the General Counsel and the Board, respectively, by the Regional Director for the First Region (Boston, Massachusetts), issued a complaint dated March 26, 1954, against Local 170, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, hereinafter referred to as the Respondent or the Union. The complaint alleged that Respondent had engaged in and was then engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and Section 8 (b) (2) of the National Labor Relations Act, as amended, 61 Stat. 136, et seq., 29 U. S. C., Sec. 141, et seq., Supp., July 1947, herein called the Act. With respect to the unfair labor practices, the complaint alleged that by certain acts Respondent from on or about December 1, 1953, has: (1) restrained and is restraining and coercing employees of the Charging Party's Employer, Anchor Motor Freight, N. Y. Corporation, herein called Anchor or the Party to the Contract, by: executing a written agreement with Anchor, the said Employer, which required, as a condition of employment, membership in Respondent, executing a written agreement with the said Employer which requires or has the effect of requiring the Employer to discriminate in regard to terms or conditions of hire or tenure against employees or applicants for employment by reason of membership or nonmembership in Respondent, compelling the said Employer to deprive the Charging Party of his seniority rights under the contract between the Employer and Respondent and, compelling Anchor, the said Employer, to discriminate in regard to the terms or conditions of hire or tenure against the Charging Party by the withdrawal of Respondent's consent to the Charging Party's recall to the Employer's active employ after a layoff until his name was reached in about the 67th position on the Employer's seniority list rather than about the 49th position, on said list; and (2) Respondent has caused and/or attempted to cause the Charging Party's Employer to discriminate against its employees in regard to hire or tenure of employment and other terms as conditions of employment by: the execution of an oral and/or written agreement with the Employer which requires as a condi- tion of employment membership in Respondent or Respondent's consent thereto; causing or attempting to cause the Employer to discriminatorily place the Charging Party's name in about the 66th place on the seniority list of its employees rather than in about the 49th=position on that list; and, causing or attempting to cause Anchor, the said Employer, to refuse to reinstate the Charging Party to his former or substantially equivalent position with the Employer after a layoff until his name was reached in about the 67th position on the seniority list rather than in about the 49th position. LOCAL 170, INTERNATIONAL BROTHERHOOD OF TEAMSTERS 853 Neither Respondent nor Anchor, the Party to the Contract, filed an answer to the complaint. Pursuant to notice, a hearing was held before me on April 19, 1954, at Worcester, Massachusetts. The General Counsel and the Party to the Contract were repre- sented by counsel. The Charging Party appeared in his own behalf and Respondent appeared through two representatives. The General Counsel identified and offered in evidence the formal file including the charge, the complaint, notice of hearing, and proof of service and thereupon moved that the Trial Examiner find that the facts as alleged in the complaint shall be deemed to be admitted as true, for failure of Respondent to answer, as provided in Section 102.20 of the Board's Rules and Regulations. The representative for Respondent stated he had no objection to the motion and I allowed it as against Respondent. Counsel for the Party to the Contract objected to the allowance of the motion on the ground that the allegations of the complaint are insufficient to support a conclusion of law that Section 8 (b) (1) (A) and Section 8 (b) (2) of the Act have been violated. I am of the opinion that although the Party to the Contract is not a respondent in this proceeding, nevertheless its interests with respect to any contract existing between it and Respondent might be materially affected by an order issuing against Respondent. Therefore I deem that the Party to the Contract is appropriately entitled to raise the objection. However, I consider the ground of objection which is in the nature of a demurrer relating, as it does, solely to the sufficiency of proof, to be without merit, and accordingly I overruled the objection and allowed the motion as against the Party to the Contract. Counsel to the Party to the Contract suggested that he might call (but did not call) the Charging Party to the witness stand and have me "cross examine as to whether or not he wishes to pursue this complaint further if he receives his full measure of seniority." Even though the Charging Party should not desire to have the complaint prosecuted (and there was no indication in the record of such desire) any contention that it should be dismissed on that ground is without merit, because it is fundamental that once a charge is filed, the General Counsel proceeds not in vindication of private rights but as the representative of an agency upon which Congress has imposed the function of enforcing the Act and bringing about compli- ance with its provisions. Schenley Distillers Corporation, 78 NLRB 504. As is manifest from the record efforts were made to settle this case during the hearing and at its close on April 19, 1954, I announced that in view of the fact that the parties were hopeful that there could be some disposition of the case with a decision being made, I would not issue an Intermediate Report within the following 30 days. Subsequently, upon the joint request of the General Counsel and counsel for the Party to the Contract, this time limit was extended to June 11, 1954. Al- though all parties were granted a period of 20 days from April 19, 1954, in which to submit briefs, none were filed. By letter dated May 13, 1954, counsel for the Party to the Contract mailed me a seniority list accompanied by what may be termed a pleading entitled "Petition for Discontinuance" requesting that the Board enter an order dismissing the com- plaint and the charges or discontinuing this proceeding. The letter stated that the petition had been served upon the representative for the Respondent. I have been administratively advised that no copy was served upon the General Counsel or the Charging Party. The last paragraph of this document states that "if said order of dismissal, discontinuance or other appropriate order terminating the proceeding is not entered, the parties hereto desire to protect their . . . interests . by being accorded . . . the full right to resume proceeding in the matter with the right to file an answer, present evidence, and to appear and present arguments." When the case was closed on April 19, 1954, I informed all parties that should a reopening motion be made between then and the date of issuance of the Inter- mediate Report, it would be considered but that it would be allowed only in the event of the existence of unusual circumstances. On June 10, 1954, counsel for the Party to the Contract wrote me that the Re- gional Director's settlement proposal was not satisfactory, that "it appears that a completion of the hearing is necessary" and that it was his opinion because other charges have been filed "that a full and complete hearing of the entire matter on all cases at this time will serve the purposes of the National Labor Relations Act." On June 17, 1954, counsel for the Party to the Contract wrote me a letter containing certain information not material to the issues in this case and on June 22, 1954, he sent me a telegram purporting to supplement the above-mentioned petition for discontinuance. Entirely apart from the effect of the failure of the Party to the 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contract to serve copies of the petition upon the Charging Party or the General Counsel and the fact that it was not submitted by anyone appearing of the record in behalf of Respondent , but treating it as a motion to reopen the hearing, I find that no such unusual circumstances as to merit its allowance have been shown to exist. Therefore I deny the petition for discontinuance. Insofar as the petition is a motion either for dismissal or for an order of discontinuance , it is disposed of in accordance with the following findings of fact and conclusions of law. Upon the failure to file an answer to the complaint , all allegations of the com- plaint are deemed to be admitted to be true , and are hereby so found. Upon the entire record in the case, upon the complaint , and upon the failure to answer thereto, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Charging Party's Employer, Anchor Motor Freight, N. Y. Corporation , herein variously called the Party to the Contract, the Employer or Anchor, is a New York corporation with places of business in Tarrytown, New York, and Linden, New Jersey. Its principal Massachusetts office is located in the town of Framingham where it is engaged as a multistate contract carrier of new automobiles for General Motors Corporation. In the course and conduct of its business, it causes and con- tinuously has caused large quantities of automobiles to be transported in interstate commerce through various States of the United States from the Commonwealth of Massachusetts . Its annual gross revenue is in excess of $250,000, approximately 60 percent of which is received from transporting automobiles to points and places outside the Commonwealth of Massachusetts. It is stipulated and I find that the Employer is engaged in commerce . Under ap- plicable decisions of the Board, I find that jurisdiction should be asserted in this proceeding. II. THE CHARGING PARTY AND THE LABOR ORGANIZATION INVOLVED The Charging Party is an employee of the Employer within the meaning of Sec- tion 2 (3) of the Act. Respondent is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Allegations deemed admitted as true Respondent, by its officers, agents , organizers, and representatives from on or about December 1, 1953, executed a written agreement with Anchor which required, as a condition of employment, membership in Respondent and requires or has the effect of inducing Anchor to discriminate in regard to terms or conditions of hire or tenure against employees or applicants for employment by reason of membership or nonmembership in Respondent and has compelled Anchor to deprive Edward J. Ivers, Jr., of his seniority rights under the contract between Anchor and Respondent and to discriminate in regard to the terms or conditions of hire or tenure of em- ployment against Ivers by the withdrawal of Respondent's consent to Ivers' recall to Anchor's active employ after a layoff until his name was reached in about the 67th position on Anchor's seniority list rather than in about the 49th position on said list. 2. Conclusions of law By said acts, Respondent has interfered with, restrained, and coerced Anchor's employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby did engage in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. N. L. R. B. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, etc., Local Union No. 41, AFL; N. L. R. B. v. Radio Officers' Union of Commercial Telegraphers' Union, AFL, 347 U. S. 17. B. Discrimination 1. Allegations deemed admitted as true Respondent by its officers , agents, organizers , and representatives, has since on or about December 1, 1953, executed an oral and/or written agreement with Anchor LOCAL 170, INTERNATIONAL BROTHERHOOD OF TEAMSTERS 855 which requires as a condition of employment membership in Respondent or Re- spondent's consent thereto; has caused or attempted to cause Anchor to place Ed- ward J. Ivers, Jr.'s, name in about the 67th place on the seniority list of Anchor's employees rather than in about the 49th position on that list; and has caused or attempted to cause Anchor to refuse to reinstate Ivers to his former or substantially equivalent position with Anchor after a layoff until his name was reached in about the 67th position on the said seniority list rather than about the 49th position thereon. 2 Conclusions of law By said acts, Respondent has caused and/or attempted to cause Anchor to dis- criminate in regard to the hire or tenure as terms or conditions of employment of Anchor's employees, thereby encouraging membership in a labor organization and thereby did engage in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. N. L. R. B. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, etc., Local Union No. 41, AFL; N. L. R. B. v. Radio Officers' Union of Commercial Telegraphers' Union, AFL, 347 U. S. 17, supra. Upon the basis of the above findings, and upon the entire record in the case, I make the following: ADDITIONAL CONCLUSIONS OF LAW 1 The activities of Respondent set forth in section III, above, and herein ruled to have been unfair labor practices violative of Section 8 (b) (1) (A) and (2) of the Act occurring in connection with the operations of Anchor described in section I, above, have a close, intimate, and substantial relation to and affect trade, traffic, and commerce among the States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 2. Local 170, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL, is a labor organization within the meaning of the Act. 3. Anchor Motor Freight, N. Y. Corporation is an Employer within the meaning of the Act. [Recommendations omitted from publication.] Appendix A NOTICE TO ALL MEMBERS OF LOCAL 170, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF ANCHOR MOTOR FREIGHT, N. Y. CORPORATION, FRAMINGHAM, MASSACHUSETTS 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 Relations Act, we hereby notify you that: WE WILL NOT enter into, renew, or enforce any agreement with Anchor Motor Freight, N. Y. Corporation, or with any other employer, which require employees to join, or maintain their membership in, our Union as a condition of employment, unless such agreement has been authorized as provided in the Act. WE WILL NOT cause or attempt to cause Anchor Motor Freight, N. Y. Corporation, its officers, agents, successors, or assigns, to reduce the seniority of, or otherwise discriminate against, any of its employees, except in accordance with Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees of Anchor Motor Freight, N. Y. Corporation, its successors or assigns, in the exercise of their right to engage in, or to refrain from engaging in, any or all concerted activities guaranteed in Section 7 of the National Labor Relations Act. WE WILL immediately notify Edward J. Ivers, Jr., and Anchor Motor Freight, N. Y. Corporation, that we have no objection to the immediate rein- statement of Edward J. Ivers, Jr., to his former or to a substantially equivalent position and standing on the seniority list of, and as an employee of, Anchor Motor Freight, N. Y. Corporation. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole Edward J. Ivers, Jr., for any loss of pay and other incidents of the employment relationship suffered because of the discrimination against him. LOCAL 170, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, 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. TRUITT MANUFACTURING CO. and SHOPMEN 'S LOCAL No. 729, INTERNA- TIONAL ASSOCIATION OF BRIDGE , STRUCTURAL AND ORNAMENTAL IRONWORKERS , OF AMERICA, A. F. L. Case No. 11-CA-670. November 15, 1954 Decision and Order On June 30, 1954, Trial Examiner John C. Fischer issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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 Intermediate Report I attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board has reviewed the Trial Examiner's rulings 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as modified herein. We agree with the Trial Examiner that the Respondent failed to bargain in good faith with respect to wages in violation of Section 8 (a) (5) of the Act. We do not, however, mean to imply, nor do we adopt the statement of the Trial Examiner '2 that the Respondent's failure to substantiate its economic position as to wages obligates the Respondent to accede to the Union's wage demands. On the other hand, it is settled law, that when an employer seeks to justify the refusal of a wage increase upon an economic basis, as did the Re- spondent herein, good-faith bargaining under the Act requires that upon request the employer attempt to substantiate its economic posi- tion by reasonable proof.' In the present case, we are satisfied that ' The Intermediate Report contains an obvious error which does not affect our conclu- sions herein. Thus, in the paragraph entitled "The Remedy" the word "referred" was used instead of "refused." 2 The Trial Examiner stated in the second paragraph of section j of the Intermediate Report that "an employer cannot refuse a demanded wage increase on the grounds that such increase would put him out of a competitive position, even though he were paying the prevailing wage scale, unless he factually documents this conclusion." 3N. L. R. B. v. Jacobs Manufacturing Company, 196 F. 2d 680 (C. A. 2), enfg. 94 NLRB 1214, 1221-2. 110 NLRB No. 143.