Chief Freight Lines Co.

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CHIEF FREIGHT LINES COMPANY and WINFRED M. COOKSEY and OKLA- HOMA CITY GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION 886, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , AFL and WIN- FRED M. COOKSEY and CHIEF FREIGHT LINES COMPANY. Cases Nos. 16-CA-711 and 16-CB-53. January 4,1955 Decision and Order On June 2, 1954, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed in that respect. Thereafter, the Respondent Union filed exceptions to the Intermediate Report and a supporting brief. 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 Interme- diate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions,' and recommenda- tions of the Trial Examiner, insofar as they are consistent with our decision herein. The Trial Examiner found, and we agree, that the Respondent Company violated Section 8 (a) (3) of the Act by refusing to reem- ploy Cooksey when jobs became available because of his nonmember- ship in the Respondent Union. The Trial Examiner also found that the Union violated Section 8 (b) (2) of the Act by causing the Com- pany to deny reemployment to Cooksey on October 26, 1953, for rea- sons unrelated to his payment or tender of periodic dues or initiation fees. While we agree that the Union caused the Company unlawfully to discriminate against Cooksey, we find that this violation occurred on January 12, 1954, rather than October 26, 1953, as the Trial Ex- aminer found. In concluding that the Union caused the Company to discriminate against Cooksey on October 26, 1953, the Trial Examiner relied upon the credited testimony of Bell, the Company's terminal manager. Bell testified that a few days prior to October 26, which was some 8 ' In the absence of any exception thereto, we adopt, without necessarily approving, the Trial Examiner's conclusion that a preponderance of the evidence does not support a finding that the Respondents maintained an unlawful closed shop or preferential hiring agreement. 111 NLRB No. 3. CHIEF FREIGHT LINES COMPANY 23 weeks -after Cooksey had voluntarily terminated his employment be- cause of his difficulties with the Union, Cooksey spoke to Bell relative to returning to work. Without assigning any reason therefor, Bell stated that he did not think he could put Cooksey back on the job. Cooksey thereupon invited Bell to confer with Cooksey's attorney regarding reemployment, and a conference was arranged for the fol- lowing day. During this conference, Bell questioned the attorney as to what would happen if he rehired Cooksey and the Union decided to strike the Company's operations or take other retaliatory action. Bell concluded the meeting by stating that any decision to reemploy Cooksey rested with the Company's president. After this meeting with Cooksey's counsel, Bell relayed Cooksey's inquiry concerning reemployment to the Company's president who suggested that Cooksey first obtain a referral from the Union and then report back to the Company to discuss the possibility of reemployment. During the same period, Bell, for the first time, spoke to Mitchell, the Union's business agent, about Cooksey's search for reemployment with the Company. In the course of his conversation with Mitchell, Bell inquired as to what would happen if Cooksey was rehired. Mitchell replied that "he didn't represent Mr. Cooksey and that he wasn't at liberty to say what might happen." Bell testified that, with reference to his inquiry as to whether the other men would work with Cooksey, Mitchell replied that "he wasn't at liberty to say, but he didn't know whether the men working down there would desire to go on working with a non-union member." Finally, Mitchell stated that, if Cooksey were given his job back, Bell "could be in violation of the contract" since Cooksey "had walked off the job." 2 On October 26, 1953, Cooksey returned to the Company to inquire about reemployment, and Bell informed him of the company presi- dent's direction to seek a referral from the Union and then return to discuss the subject of his reemployment. The Trial Examiner found, and we agree, that Cooksey made an unconditional request for new employment on October 26. On January 12, 1954, after being apprised that Cooksey had filed a charge against the Company, Bell telephoned Mitchell and inquired about the possibility of rehiring Cooksey. Mitchell again replied that "he didn't represent Cooksey, that he was my [Bell's] problem and he didn't want to have anything to do with it." Bell then asked Mitchell whether the Union would issue Cooksey a referral card if Cooksey applied for one at the Union's hall, to which Mitchell replied that "under the circumstances he doubted it." Finally, Bell inquired 2 Bell averred that he did not know which section of the contract Mitchell stated would have been violated by returning Cooksey to his job. As Cooksey had lost his seniority by leaving his employment without permission , however, it would seem that Mitchell's reference to a possible contractual violation pertained to the rehiring of Cooksey with his old seniority. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether, if he rehired Cooksey as a new employee, the Union would issue Cooksey a union card after the completion of his 30-day proba- tionary period as provided for in the contract. Mitchell answered that "he didn't think they would issue him a card." On the basis of the foregoing, and the entire record in these pro- ceedings, we are persuaded that Mitchell's statements, made in re- sponse to Bell's inquiry in October 1953 regarding Cooksey's quest for reemployment, fall short of the type of evidence necessary to es- tablish that the Union caused or attempted to cause the Company to deny reemployment to Cooksey on October 26, 1953, because of his nonmembership in the Union. As we view the evidence in this connec- tion, Mitchell's equivocal response to Bell's questions failed to commit the Union to any definitive course of action in the event of Cooksey's reemployment which could properly be characterized as causing or attempting to cause the Company to discriminate against Cooksey. Accordingly, we find, contrary to the Trial Examiner, that a pre- ponderance of the evidence fails to establish that the Union violated Section 8 (b) (2) of the Act by its conduct on October 26, 1953. However, Bell's conversation with Mitchell on January 12, 1954, reveals a very different and clear picture of the Union's message to the Company as to the former's plans in the event Cooksey were re- hired. Mitchell's statements that the Union would not accept Cooksey into membership after the 30-day probationary period and might not accord Cooksey a referral card if Bell rehired Cooksey, were, in our opinion, a clear enough announcement of the Union's determination that the reemployment of Cooksey, who Bell knew had fallen out of grace with the Union, would be attended by retaliatory measures on the part of the Union. This conclusion is further supported by Bell's testimony relating that Mitchell's statements made him realize that re- hiring Cooksey would entail "union troubles" and that this was "prob- ably a very contributing factor" for not reemploying Cooksey. We reject the argument that a finding of "cause or attempt to cause," under Section 8 (b) (2) of the Act, may only be predicated upon di- rect or expressed threats of retaliation by a union's agents. It is enough that the union's conduct reveals an intent to arouse the em- ployer's fear that the hire or reemployment of an applicant will re- sult in economic pressure against him. Unlike our dissenting col- league, Member Murdock, we attach no great significance to the fact that Mitchell prefixed his statement with the phrase "I think." No more would we excuse an employer representative, defending an 8 (a) (1) charge, because he had only told the employees that "he thought" they would be discharged if they persisted in exercising the rights guaranteed them by Section 7 of the Act. And, contrary to the fear expressed in the dissent, a union is not required to discourage union membership in order to avoid running afoul of the proscriptions of the CHIEF FREIGHT LINES COMPANY 25 statute. All it need do is refrain from making threats in violation of the expressed provisions. Upon the entire record before us, we find that the Union, by its conduct on January 12, 1954, caused the Company to deny reem- ployment to Cooksey because of his nonmembership in the Union and thereby violated Section 8 (b) (2) of the Act.' THE REMEDY In view of the foregoing, we shall modify the remedial recommen- dations of the Trial Examiner as follows : We shall order the Respondent, Chief Freight Lines Company, to make Winfred M. Cooksey whole for any loss of pay suffered as a result of the discrimination practiced against him, by payment to him of a sum equal to the amount he would normally have earned as wages from the date on or after October 26, 1953, when jobs were available, to January 12, 1954, the date on which the Respondent Company be- came jointly and severally liable with the Respondent Union for any loss of pay suffered by Cooksey, less his net earnings during such period. We shall also order the Respondent, Chief Freight Lines Company, and the Respondent, Oklahoma City General Drivers, Warehousemen and Helpers, Local Union 886, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL, jointly and severally, to make Winfred M. Cooksey whole for any loss of pay suffered by him as a result of the discrimination practiced against him by the Respondents, by payment to him of a sum equal to the amount he would have normally earned as wages from January 12,1954, the date on which the Respondent Union caused the Respond- ent Company to discriminate against Cooksey, to March 15, 1954, the date on which the Respondent Company made, and Cooksey declined, a proper offer of reemployment, less his net earnings during such period. Back pay shall be computed in a manner consistent with the Board's policy set forth in F. W. Woolworth Company.4 Order Upon the basis of the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : 1. The Respondent Company, Chief Freight Lines Company, Kansas City, Missouri, its officers, agents, successors, and assigns, shall : 3 Member Rodgers dissents from the finding of the majority herein that the Union's violation of Section 8 (b) (2) of the Act dates from Mitchell's statements of January 12, 1954 He would find that the Union caused the Company to discriminate against Cooksey on October 26, 1953. 4 90 NLRB 289. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Cease and desist from : (1) Performing or giving effect to the clause in its contract with Respondent Union which delegates to the Union authority to settle controversies relating to seniority, or entering into or renewing a con- tract with said Union, or any other labor organization, which con- tains such provisions. (2) Encouraging membership in Respondent Union, or in any other labor organization of its employees, by discriminating against its em- ployees in any manner in regard to their hire or tenure of employ- ment, except to the extent permitted by Section 8 (a) (3) of the Act. (3) Interfering with, restraining, or coercing its employees in the exercise of the 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. 2. The Respondent Union, Oklahoma City General Drivers, Ware- housemen and Helpers, Local Union 886, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, its officers, representatives, and agents, shall : (a) Cease and desist from : (1) Performing or giving effect to the clause in its contract with Respondent Company which delegates to the Union authority to settle controversies relating to seniority, or entering into or renewing a con- tract with Respondent Company, or any other employer, which con- tains such provisions. (2) Causing or attempting to cause Respondent Company, its offi- cers, agents, successors, or assigns, to discriminate against its em- ployees in violation of Section 8 (a) (3) of the Act. (3) Restraining or coercing the employees of Respondent Company in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. 3. Respondent Company and Respondent Union shall make whole Winfred M. Cooksey in the manner sot forth in the section of this De- cision and Order entitled "The Remedy." 4. Respondent Company and Respondent Union shall post immedi- ately, in conspicuous places in all locations where notices to employees and members, respectively, are customarily posted, the respective copies of the notices attached to the Intermediate Report and marked "Appendix A" for the Company and "Appendix B" for the Union.-' 6 These notices, however , shall be , and they hereby are, amended by striking from the first paragraph thereof the words "Recommendations of a Trial Examiner " and substitut- ing 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 Court of Appeals , Enforcing an Order." CHIEF FREIGHT LINES COMPANY 27 Copies of said notices, to be furnished by the Regional Director for the Sixteenth Region, shall, after being signed by a duly authorized officer or agent, be posted and maintained by each of said Respondents for a period of sixty (60) consecutive days. Reasonable steps shall be taken by the respective Respondents to insure that said notices are not altered, defaced, or covered by any other material. 5. Respondent Company and Respondent Union shall notify the Regional Director for the Sixteenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it charges that the Respondents have violated the Act by maintaining, through cus- tom, understanding, or verbal agreement, a closed shop or preferential hiring arrangement, be, and it hereby is, dismissed. MEMBER MURDOCK, dissenting : Like the majority of my colleagues, I agree that the Union did not cause or attempt to cause the Company unlawfully to discriminate against Cooksey on October 26, 1953. However, I cannot concur in their finding that the Union violated Section 8 (b) (2) of the Act on January 12, 1954, merely because Mitchell "doubted" that the Union would give Cooksey a referral card and because he "didn't think" the Union would admit Cooksey to membership. I would therefore dis- miss the allegations in the complaint insofar as they allege that the Union violated the Act with respect to Cooksey. I fail to perceive how my colleagues can find that the Union re- sponsibly caused the Company to deny employment to Cooksey on the basis of the record before us. In my opinion, Mitchell's statements that he "doubted" whether the Union would grant Cooksey a referral and that he "didn't think" the Union would issue Cooksey a member- ship card are so vague in content that only by the sheerest type of conjecture can they be characterized as carrying with them the affirmative threat of retaliation or other coercive action in the event Cooksey was reemployed. To hold that statements such as Mitchell's, unsupported by any positive evidence of threats of economic pressure, caused the Company to discriminate against Cooksey, in effect sug- gests that the Union must discourage membership in it in order to avoid liability under Section 8 (b) (2) of the Act. Moreover, the majority's finding of "causation" in this case places this Board in the unique position of projecting itself into the mind of each employer to determine whether every smile or frown by a union representative should have impressed each employer as being a veiled threat of eco- nomic retaliation in the event the employer declined to discriminate against employees. I believe that the Act constrains us to predicate findings of violations of Section 8 (b) (2) on evidence more substan- tial than that which appears in this record. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To further support their findings of causation in this case, the majority suggests by way of analogy the hypothetical situation where an employer representative would be found to have violated Section 8 (a) (1) of the Act by stating to his employees that "he thought" they would be discharged if they engaged in protected activities. The analogy, in my opinion, is tantamount to likening a peach and a pear. In the hypothetical case, the Board's inquiry in determining whether Section (a) (1) has been violated concerns itself with whether the employer, in possession of the total power over his employees' tenure and other conditions of employment, coerced the employees by ad- dressing such a threatening statement to them. In the instant case, the inquiry centers around whether the Union responsibility caused the Respondent Company to act to discriminate against an employee by certain acts and utterances. I submit that the majority's analogue suggests the basic weakness of its entire case. Intermediate Report and Recommended Order STATEMENT OF THE CASE These proceedings, brought under Section 10 (b) of the National Labor Rela- tions Act, as amended (61 Stat. 136), and consolidated by an order of the General Counsel of the National Labor Relations Board,' were heard in Oklahoma City, Oklahoma, on April 7, 1954, pursuant to due notice. Separate complaints, based on charges duly filed and served, were issued against the respective Respondents on February 8, and amended complaints on March 18, 1954. Further amendments were made at the opening of the hearing. The summary of the pleadings made below is of the pleadings as finally amended. The complaint against the Company alleged in substance that the Company had, since November 1, 1952, engaged in unfair labor practices proscribed by Section 8 (a) (1) and (3) of the Act (a) by maintaining a custom, understanding, or verbal agreement with the Union under which it hired or gave preference in employment to employees referred to it by the Union from the Union's list of members; (b) by entering into a written agreement with the Union on November 1, 1952, providing in part that controversies concerning seniority of employees should be referred to the Union for settlement; and (c) by refusing on October 26 and November 3, 1953, to employ Winfred M. Cooksey because of his nonmembership in the Union, with knowledge that membership was denied or terminated for a reason other than Cook- sey's failure to tender periodic dues and initiation fees uniformly required. The complaint against the Union alleged in substance that the Union had en- gaged in unfair labor practices proscribed by Section 8 (b) (1) (A) and 8 (b) (2) of the Act (a) by causing the Company to discriminate against Cooksey as described above; (b) by entering into the written contract with the provision concerning seniority described above; and (c) by maintaining with the Company the verbal agreement or understanding referred to above as to hiring or giving preference to employees from the Union's hiring hall, from which the Union referred only mem- bers in good standing. The Respondents filed separate answers in which they made general denials of the unfair labor practices charged, respectively, against them. All parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs, proposed findings of fact, and conclusions of law. Briefs have been filed by the General Counsel and by Respondent Company. Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following: 1 The General Counsel and his representative at the hearing are referred to herein as the General Counsel, and the National Labor Relations Board as the Board. Chief Freight Lines Company is referred to herein as the Company and as Respondent Company, and Local 886 as the Union and as Respondent Union. CHIEF FREIGHT LINES COMPANY FINDINGS OF FACT 29 I. THE BUSINESS OF RESPONDENT COMPANY Respondent Company, a Kansas corporation, is a common carrier motor freight line, operating under a license from the Interstate Commerce Commission, with its principal office in Kansas City, Missouri, and with terminals in Kansas City, Mis- souri; Coffeyville, Kansas; Tulsa and Oklahoma City, Oklahoma; and Dallas and Fort Worth, Texas. During the past year it has received for services in the handling of freight in the said States in excess of $2,000,000. The Company is therefore engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent Union, Local 886, is a labor organization which admits to member- ship employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The contract provisions; the issues The Respondents entered into a collective-bargaining agreement dated November 1, 1952, to be effective through October 31, 1955. Besides a union-shop clause, whose validity the General Counsel does not question, the contract contained in part four separate provisions, which are material to the issues litigated herein, as follows: 1. The company agrees that each newly hired employee will be sent to the Union office before starting work for a referral card, which will be issued by the Union without obligation on the part of said applicant, and said applicant shall otherwise work under the provisions of this agreement. 2. Any person newly employed shall be so employed only on a 30 calendar day trial basis, during which time he may be discharged by the employer with- out recourse. 3. Seniority from length of continued service with the Company shall con- trol lay-offs in slack business periods and to the assignment of work. Any con- troversy over the seniority of any employee shall be referred to the Union for settlement. 4. Any employee desiring leave of absence from his employment shall secure written permission from both the Union and the Employer. Failure to comply with this provision shall result in the complete loss of seniority of the employee involved. The main issues revolve around Respondent's refusal to rehire, on his application in October 1953, Winfred M. Cooksey, a former employee, who had been expelled from membership by the Union in July and who had voluntarily left Respondent's employ on August 1. The General Counsel also attacks the legality of the seniority clause (No. 3 quoted above), as well as the employment practices between the par- ties, under which preference was allegedly given to employees referred by the Union, all of whom were allegedly union members in good standing. B. The refusal to hire Cooksey Cooksey joined Local 886 in 1941. He worked for Respondent for over 2 years as pickup driver and dockman at the Oklahoma City terminal. By letter of July 16, 1953, the Union notified Cooksey he was being expelled from membership effective as of August 1.2 Shortly before that date Cooksey informed Lee K. Bell, the Com- pany's terminal manager, that he had been issued a dishonorable withdrawal card by the Union, and he requested a 90-day leave of absence in order to straighten out his union difficulties. Bell stated he did not want to have anything to do with Cook- sey's union troubles, and that he could not grant a 90-day leave of absence without approval of the Company's president. Bell testified that there was no further discus- sion, and that Cooksey simply did not report to work after August 1.3 8 The exact nature of the charges of which Cooksey had been found guilty was not stated. Evidence at the hearing establishes that the discharge was on "dishonorable grounds," and that It was unrelated to any failure to pay dues. 8 Cooksey's testimony that Bell approved his leave of absence is overborne by all other evidence in the case, and the General Counsel specifically disclaimed any contention that a leave of absence was granted. Cooksey admitted that he was thoroughly familiar with the contract provisions in that regard and admitted he made no attempt to secure written permission from both Company and Union as required. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 3, the Union rejected Cooksey's tender of dues with the statement that since he no longer had membership, he did not owe any dues. Through his attorney, Charles Schwoerke (formerly attorney for'Local 886 ), Cooksey appealed his ex- pulsion to the International Union, but testified he did not notify the Local of his appeal and that he got no answer from the International . Other than the tender of dues and taking the appeal , Cooksey made no attempt to settle his difficulties with the Union, nor did he thereafter have contact of any kind with it. Several days prior to October 26, Cooksey spoke to Bell about returning to work; and Bell, without assigning a reason , said he did not think he could put Cooksey back to work at that time. Cooksey then requested Bell to accompany him to Schwoerke's office to discuss the subject of his employment , Bell agreed, and Cooksey arranged an appointment . At that conference Bell countered Schwoerke's request that Cooksey be put back to work by inquiring what would happen if he did so and if the Union should strike or retaliate in some manner . Bell testified he put the in- quiry because Cooksey had been dishonorably discharged from the Local and he felt that if he took Cooksey back he might have trouble with the Union . Bell also told Schwoerke that he (Bell ) would have to take the matter up with Mr. Stith (Respondent's president ) before deciding to reemploy Cooksey.4 He testified that he did not raise any question of Cooksey's ability or of job availability , but he added that, to his knowledge, there were no openings at the time. Thereafter Bell talked with Stith, who directed him to inform Cooksey to obtain a referral from the Union and then return to discuss the possibility of reemployment. Cooksey came in on October 26, and Bell relayed the information to him. After that interview, Cooksey wrote the Company on the same date as follows: As you recall you granted me lease [sic] from my employment with your company there on the dock on the first day of August, 1953, with the mutual understanding that I could go back to work anytime I desired. I have now decided to terminate such leave and go back to work. If for any reason I cannot be put back on my job, I wish you would set out in a letter to me within five days the reasons so that it would not interfere with my getting another job. In the meantime, after the meeting in Schwoerke 's office, Bell had informed Ralph Mitchell, business agent of Local 886 , that Cooksey was seeking reemploy- ment and inquired what the consequences would be if he put Cooksey back to work. Bell testified that Mitchell replied that he did not represent Cooksey because he was no longer a member of the Union, that he was not at liberty to say what might hap- pen if Cooksey was reemployed , and that he did not know whether the other em- ployees at the terminal would be willing to work with a nonunion man. Bell testi- fied further that Mitchell did not say that it would be satisfactory to the Union for the Company to put Cooksey back to work , but stated to the contrary that it would be a violation of the contract to do so because Cooksey had walked off the job. Bell, who had formerly been a member of the Union for a number of years, ad- mitted in his affidavit that he was "fully aware of the consequences of putting Cook- sey back to work, especially in the light of the conversation with Mitchell." Bell testified that on January 12, he again talked with Mitchell , stating that a representative of the Board had called his attention to a possible violation of the Act regarding Cooksey, and he inquired about the possibility of putting Cooksey back to work. Mitchell again said he did not represent Cooksey, but only em- ployees who had (union ) cards. Bell inquired whether on Cooksey's application the Union would issue him a referral card . Mitchell replied that under the circum- stances he doubted it very much . Bell inquired whether, if the Company put Cooksey back to work for 30 days, the Union would issue Cooksey a union card, and Mitchell replied that he did not think so. Bell then inquired what would happen if he put Cooksey back to work, and Mitchell said he was not at liberty to say what might happen. Mitchell also said that Cooksey was Bell's "baby," and that he did not want any part of Cooksey. Mitchell's testimony varied in significant respects from Bell's. He testified that during the October conversation he specifically assured Bell, on the latter 's inquiry, that the Union would not take any action if Cooksey were reemployed and that, though Cooksey was not a union member, the Union would have to give him rep- resentation if he was in the Company's employ. Mitchell testified, however, that 4 Though Bell's testimony was not specific on this point, he readily adopted as his testi- mony the contents of his affidavit ( with minor changes) given Schoolfield on January 15, 1954, which was offered in evidence by the General Counsel and received without objec- tion. It is accepted herein as a part of Bell's testimony. CHIEF FREIGHT LINES COMPANY 31 he had no distinct recollection of the January conversation, that it "just skipped from [his] mind," but that he told Bell there was nothing he could do if Bell wanted to hire Cooksey because Bell had the perfect right to hire him. On those conflicts and on any others of substance, Bell's testimony has been credited in view of his better recollection of the details of the conversations and the fact that his testimony did not vary substantially from his affidavit given only 3 days after the January conversation. On March 10, the Company wrote Cooksey offering him employment effective as of March 15.5 Cooksey came in on March 15 and inquired whether he could go back to work with his original seniority. Bell informed him that the question would have to be determined in the impending Board hearing or by the Union. Cooksey wrote Bell on the same date that he was ready and able to return to work, but referred to Bell's refusal to restore his seniority, and requested further advice relative to getting his job back. The Company's counsel replied on March 16, setting forth the Company's version of the March 15 conference, and informing Cooksey that the offer contained in the March 10 letter was open and would remain open for a reasonable time. However, Cooksey made no further contact with the Company. The following additional facts are relevant on the question whether there was any job opening available for Cooksey upon his application in October. The Company hired no one to replace Cooksey prior to his application. His work was done from time to time by casual labor or extra help. On November 2, 1953, Calvin Massingale was employed as pickup and delivery driver and dock helper, a job similar to Cooksey's. Massingale worked the following schedule of hours through January 2: Week ending Total hours November 7---------------------------------------- 423/4 November 14--------------------------------------- 313/4 November 21--------------------------------------- 441 November28--------------------------------------- 43 December 5---------------------------------------- 45 December 12--------------------------------------- 45 December 19--------------------------------------- 45 December 26--------------------------------------- 45 January 2------------------------------------------ 29 Since January 2, Massingale has worked a regular schedule of 45 hours. Actu- ally, as the tabulation shows, that has been his regular schedule since the week ending November 28, inasmuch as the week ending January 2 obviously included holidays. Though Bell admitted that Massingale is now a permanent employee, he testi- fied that Massingale was hired only as a casual laborer and was later continued as extra help when he proved to be satisfactory. Bell also claimed. that prior to January 2, Massingale had worked only periodically and that he did not work a full schedule of hours until January 2. That claim is refuted by the evidence as a whole, including the tabulation above, which shows that, save for the second week of his employment, Massingale worked a full, or virtually a full, workweek through- out. Furthermore, Bell's affidavit made no claim either that Massingale was hired as casual laborer or that he worked only periodically. It stated in fact that the work for which Massingale was employed was similar to that formerly done by Cooksey and that: Massingale is the only man hired since October 26, 1953, although I have hired casuals since. Massingale is classified as an extra helper because I am allowed one extra man for every 10 men employed. Massingale is at the bottom of the seniority list. Bell explained further that he did not offer Cooksey employment on November 2 because he did not think of him, did not know how to locate him except for the address on Cooksey's letter of October 26, and did not know whether Cooksey was employed. Those explanations are wholly incompatible with the evidence of Cook- sey's then recent and strenuous attempts to secure employment and with the fact that the Company's letter of March 10, addressed to Cooksey at the identical ad- dress given in Cooksey's letter of October 26, readily reached Cooksey. 5 The full contents of that letter and of the subsequent ones mentioned below will not be set forth in extenso, all of them contained self-serving declarations, obviously looking to the impending hearing herein. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is therefore found on the basis of the entire evidence that there was a job open- ing on November 2, 1953, for which Cooksey was qualified.6 Concluding Findings Section 8 (a) (3) and 8 (b) (2), respectively, make it an unfair labor practice for an employer to engage in discrimination, and for a labor organization to cause such discrimination, in regard to hire or tenure of employment, in order to en- courage or discourage membership in any labor organization . The provisos to Section 8 (a) (3), however, specify certain conditions under which an employer may justify discrimination , and Section 8 (b) (2) contains dovetailing provisions. Thus, employer and union are permitted to contract to require membership in the union as a condition of employment after 30 days of employment or 30 days after the effective date of the contract ; but even in that case discrimination for non- membership can still not be justified if the employer has reasonable grounds for believing that membership was denied or terminated by the union for reasons other than the employee's failure to tender periodic dues and initiation fees uniformly required. The General Counsel does not contest the validity of the contract clause between Respondents here, but urges that the Company 's discrimination against Cooksey, assertedly caused by the Union , was because Cooksey's membership in the Union had been denied or terminated , to the Company's knowledge, for reasons other than his failure to tender required membership dues and fees. There is no question under the evidence that the Company was fully aware that the Union had terminated Cooksey's membership for reasons unrelated to the pay- ment of dues , i. e., it knew that his expulsion was on dishonorable grounds. The issues surrounding its refusal to reemploy him narrow down to (a) whether the Company refused to rehire Cooksey because of the Union's denial of membership to him,7 and (b) whether the Union caused or attempted to cause the Company so to discriminate. (a) The evidence presents scant room for doubt as to the case against the Com- pany. The testimony of Cooksey and Bell , plus Bell's affidavit, considered in their entirety, establish plainly a prima facie case that Bell rejected Cooksey's application for reemployment on or about October 26 for the reason that Cooksey had not been successful in straightening out his expulsion from the Union , and because Bell, by reason of his talk with Mitchell and his own long-time experience as a union mem- ber, feared a strike or other retaliation by the Union. The Company's defenses may be summarized, as follows: That Cooksey not having obtained a leave of absence , occupied the status of an ordinary job applicant for a new job, that what he applied for was his old job back , which carried with it seniority rights, and that the Company was under no legal obligation to reemploy him under those circumstances. It justifies the Massingale hiring as being temporary in its in- ception and, in any case, as not being for the job for which Cooksey had applied. It contends further that it could (as it did) require Cooksey to obtain a referral card before employing him; that the Union could not, under the contract terms, have refused to give such a referral , under which Cooksey was entitled to work for at least 30 days; and that as Cooksey made no attempt to procure a referral card from the Union, it was not legally obligated to employ him. Much of the force of Respondent's contentions regarding lack of a job opening for Cooksey was lost by Bell's admissions that he did not raise the question with Cooksey alone or with Cooksey and Schwoerke together. Nor did the Company raise it in reply to Cooksey's letter-it made no reply. Instead, the only question Bell raised was the probability of a strike or other trouble with the Union if he put Cooksey back on. Indeed, Bell had made it clear as far back as Cooksey 's application for leave in July that he did not want to become involved in Cooksey's troubles with the Union, and his testimony as supplemented by his affidavit showed his full awareness of the consequences if he did so. His reluctance, under the circumstances , to do anything to cause the trouble he anticipated in the Company's business was only natural, but the circumstances nevertheless afforded no legal justification for discrimination against Cooksey. Cf. N. L. R. B. v. Local 1418, I. L. A., 212 F. 2d 846 (C. A. 5). Certainly it is obvious, in view of Bell's concern about avoiding trouble with the Union, that he would have hastened to assert the lack of a job opening if such was 9 The record also shows that subsequent to Massingale the Company has employed five temporary employees who have worked for varying brief periods. 7 The Company's various defenses will also be considered under this issue. CHIEF FREIGHT LINES COMPANY 33 the fact and if it was the reason for denial of employment , since it would have constituted a ready-made and legitimate solution of his problems. Nor does the evidence support Respondent's contention that Cooksey demanded his old job back with seniority. Neither the Cooksey-Bell testimony concerning the October conversations nor Cooksey 's letter disclose any such demand.8 It is true, as Respondent contends , that Cooksey had lost his seniority and that he occupied the status of an ordinary applicant for a new job . But it is precisely that fact which entitled him to the job for which Massingale was hired a few days later if that job differed substantially from the one Cooksey had formerly held. Actually, the two jobs seem analogous, if not identical, save for the claim that Massingale was hired initially on a temporary basis. In any event, the evidence establishes at a minimum that a job was available for Cooksey on November 2, if not on October 26, and that it was not offered to Cooksey, despite his request for a reply within 5 days. Bell's weak excuse that he did not know where to reach Cooksey at the time was refuted by the fact that he reached Cooksey readily enough in March at the very address Cooksey supplied in his Octo- ber letter. The contract fails to support the Company 's final contention that it was legally entitled to require Cooksey to obtain a referral card from the Union before em- ploying him. Under the clause in question (see section A, supra), the hiring by the Employer was to precede sending the employee to the union office . The con- tract did not, therefore, require Cooksey to seek a referral card before being hired; and it is immaterial that he did not do so in view of the Company 's failure to em- ploy him or to offer him employment. Indeed, if the Company actually believed in the efficacy of its contract, it could safely have hired Cooksey in reliance on the Union's obligation to issue the referral pursuant to the contract terms. Yet the evidence establishes that Bell had ample reason to believe , from his conversations with Mitchell, that it would be a futile act for Cooksey to apply to the Union for a referral card. It is therefore concluded and found on a preponderance of the evidence on the record as a whole that Respondent Company refused to employ Cooksey on October 26, 1953,9 because of his nonmembership in the Union , having at the time reasonable grounds for believing that Cooksey 's membership was denied or terminated for rea- sons unrelated to his payment or tender of dues. Thereby the Company engaged in discrimination proscribed by Section 8 (a) (3) of the Act. (b) In determining whether the Union caused the Company to discriminate, it is immaterial that threats or promises may not have been made . It need only be found whether the Union exerted pressures upon the Company in an attempt to cause it not to employ Cooksey, i. e., that the Company's discrimination was "upon the instigation of the union ." N. L. R. B. v. Radio Officers' Union of the Commer- cial Telegraphers Union, AFL, 347 U. S. 17, 52. As found under ( a), supra, Bell's refusal to hire Cooksey was due to his fear of union retaliation by strike or other- wise. Though that finding is an essential factor supporting the conclusion that the Company engaged in discrimination , it does not establish a case against the Union unless the evidence shows that Bell's fears were reasonably grounded in union pressures. Bell's credited testimony concerning his conversations with Mitchell , summarized above, plainly disclosed that union pressures laid a reasonable basis for anticipating trouble with the Union . Thus, Mitchell contended that the reemployment of Cook- sey would constitute a violation of the contract, repiesented that the union members might refuse to work with a nonunion man, that he was not at liberty to say what might happen, and that the Union would not issue Cooksey a referral card .1° Those 8 Although Cooksey gave conflicting testimony on cross-examination as to what he wanted when he applied in October, the evidence as a whole does not show that he in fact demanded his seniority then Bell's testimony, significantly, is devoid of suggestion that he did 9 The date of the commencement of the discrimination under the circumstances here did not depend on whether a job was available for Cooksey, since it was apparent that the Company had conditioned his employment on membership in, or referral by, the Union and that further application by Cooksey would be futile unless he met the pre- scribed conditions. Seabraght Construction Company, 108 NLRB 8; N. L, R. B. v. The Lummus Co., 210 F. 2d 377,, 380-1 (C. A. 5). 10 The evidence plainly established the futility of any application by Cooksey for a referral. A refusal to grant clearance or a referral has been held sufficient in itself to cause discrimination under Section 8 (b) (2). N. L. R. B. v. Radio Officers' Union, AFL, 196 F 2d 960 , 965 (C. A. 2), affil. 347 U. S. 17. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pressures were obviously applied with intent, and in an attempt to cause Bell to refuse to employ Cooksey. Moreover, they were successful. Testimony offered by the Union to the effect that Mitchell was without authority to call a strike or to issue referrals are wide of the mark. His statements to Bell were obviously within the scope of his authority or apparent authority as business agent of the Union. It is therefore concluded and found on the basis of the evidence as a whole that Respondent Union caused or attempted to cause the Company to refuse to hire Cooksey because of nonmembership in the Union, which membership was termi- nated or denied for reasons other than the failure to tender the periodic dues and initiation fees uniformly required. C. The seniority clause In issue also is the legality of the seniority clause (No. 3 under section A, supra), which delegates to the Union complete power of settlement of all controversies over seniority of employees. The clause in question is approximately identical with that recently held illegal in Pacific Intermountain Express Company, 107 NLRB 837, in which the contract, like the one here, also contained a valid union-shop clause. The Board's flat holding that the inclusion in a contract of a provision like the pres- ent one is violative of the Act is dispositive of the issue here. The force of that decision is in fact augmented by the Board's rejection of a saving clause, included in a later contract, providing that the determination by the Union of seniority con- troversies should be made without regard to the membership or nonmembership of the employees involved. The Board held that inclusion of such a statement "is not by itself enough to cure the vice of giving to the Union complete control over the settlement of a `controversy' with respect to seniority." In view of the broad scope of the above decision, it is immaterial that no contro- versies have been referred to the Union here for determination; the mere existence of the clause in the contract is violative of the Act. Aside from that, Bell's rejection of Cooksey's seniority demands on March 15 contained implicit acknowledgment of the continued efficacy of the clause by his statement that the question would be de- termined in the present proceeding or by the Union. It is therefore concluded and found that by inclusion in the contract of the clause which provided for referral to the Union of controversies over seniority, the Com- pany violated Section 8 (a) (3) and (1) of the Act and the Union violated Section 8 (b) (2) and 8 (b) (1) (A). D. The alleged verbal closed shop The preponderance of the evidence does not support the General Counsel's con- tention that Respondents, by verbal understanding or custom, have maintained a closed shop or a preferential hiring arrangement. Briefly, the facts are as follows: Of 12 employees hired since November 1, 1952, including Massingale, only 3 were sent from the union hall on request. In 3 of the 12 cases, it was not known to the Company whether the employees were or were not union members. In 2 of the latter cases, however, the employees were sent to the Union to procure re- ferral cards. Bell testified that it was not his practice to call the union hall in every case, al- though he usually got his casual help from the hall on special occasions when he need help on short notice. He testified further that he had occasionally hired direct, employees who came to the office, especially if they showed a union card, and that he hired some temporary employees who did not show a union card but sent them on to the Union for a referral card. The foregoing evidence obviously falls short of establishing a custom or an un- derstanding that a prospective employee had to present either a union card or a referral before, or as a condition to, being hired. Bell hired with and without call- ing the Union. He hired employees with and without union cards. The sending of newly hired employees to the Union after hiring, for referrals, was required by the contract clause whose legality the General Counsel does not dispute as written. The Cooksey incident, because of its unusual circumstances, cannot be considered a fair example of how the parties verbally applied the referral clause. To the ex- tent that it is an example of any kind, it does not alone establish a custom or a practice. It does not stand alone; it is overborne by the other evidence summarized above. It is therefore concluded and found that the evidence fails to establish that Re- spondents, by custom, understanding, or verbal agreement, maintained a closed shop or a preferential hiring arrangement. CHIEF FREIGHT LINES COMPANY 35. Upon the basis of the above findings of fact and upon the entire record in the case the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By refusing to employ Winfred M. Cooksey on October 26, 1953, Respondent Company discriminated against him to encourage membership in the Union, and thereby engaged in unfair labor practices proscribed by Section 8 (a) (3) and (1) of the Act. 3. By causing and attempting to cause the Company to discriminate against Cook- sey as aforesaid, Respondent Union engaged in unfair labor practices proscribed by Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 4. By including in their contract a clause which provided for referral to the Union for settlement of controversies over the seniority of employees, Respondent Com- pany violated Section 8 (a) (3) and (1) of the Act, and Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 5. The aforesaid unfair labor practices having occurred in connection with the operations of Respondent Company's business as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2 (6) and (7) of the Act. 6. Respondents have not by custom, understanding, or verbal agreement main- tained a closed shop or a preferential hiring arrangement. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, as more fully outlined in the section below. I make no recommendation that Cooksey be offered employment in view of his rejection of the Company's offer of March 15 (conceded by the General Counsel to be a valid one). I shall recommend among other things that Respondents jointly and severally make Cooksey whole for any loss of pay suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from October 26, 1953, to March 15, 1954, inclusive, less his net earnings during said period. Back pay shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289. [Recommendations omitted from publication.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions 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 perform or give effect to the clause in our contract with Okla- homa City General Drivers, Warehousemen and Helpers, Local Union 886, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, AFL, which delegates to the Union authority to settle controversies relating to seniority, and we will not enter into or renew a contract with said Union or any other labor organization which contains such provisions. WE WILL NOT encourage membership in Oklahoma City General Drivers, Warehousemen and Helpers, Local Union 886, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or in any other labor organization of our employees, by discriminating against them in any manner in regard to their hire or tenure of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement as a condition of employment as author- ized by Section 8 (a) (3) of the Act. WE WILL make Winfred M. Cooksey whole for any loss of pay-suffered as a result of the discrimination against him. 344056-55-vol. 111- 4 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become, to remain, or to refrain from becoming or remaining, members of the above-named Union or any other labor organization, except to the extent that said right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. CHIEF FREIGHT LINES COMPANY, Employer. Dated---------------- By---------------------------------------------- (Representative ) I (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. Appendix B NOTICE TO ALL MEMBERS OF OKLAHOMA CITY GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION 886, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, AND To ALL EMPLOYEES OF CHIEF FREIGHT LINES COMPANY 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, as amended, we hereby notify you that: WE WILL NOT perform or give effect to the clause in our contract with Chief Freight Lines Company which delegates to us authority to settle controversies relating to seniority, and we will not enter into or renew a contract with said Company or any other employer which contains such provisions. WE WILL NOT cause or attempt to cause Chief Freight Lines Company, its officers, agents, successors or assigns, to discriminate against its employees in regard to their hire or tenure of employment or any term or condition of employment except as permitted under the Act. WE WILL NOT restrain or coerce employees of Chief Freight Lines Company in the exercise of the rights guaranteed under Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL make whole Winfred M. Cooksey for any loss of earnings he may have suffered because of the discrimination against him. OKLAHOMA CITY GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION 886, INTERNATIONAL BROTHER- HOOD 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. PUBLICIDAD ASTRA, ET AL . and GREMIO DE PRENSA , RADIO, TEATRO Y TELEVISION DE PUERTO RICO, LOCAL 24929 , AFL, PETITIONER. Case No. 04-RC-602. January 4,1955 Supplemental Decision and Order Amending Direction of Election On October 21,1954, the Board issued its Decision, Order, and Direc- tion of Election in this case I finding appropriate two units of radio talent employed by Radio Stations WNEL and WKAQ, respectively, 1 110 NLRB 442. 111 NLRB No. 10.