Bowman Transportation, Inc.

786 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD-- Bowman Transportation, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL, Local No. 612. Cases Nos. 10-CA-1950 and 10-CA- 1985. August 17, 1955 SUPPLEMENTAL DECISION AND ORDER On April 22, 1955, the Board issued a Decision and Order in the above-entitled proceedings, finding, inter alia, that the Respondent (1) violated Section 8 (a) (3) of the Act by discriminatorily discharg- ing Welch Gross, and (2) violated Section 8 (a) (2) of the Act by illegally assisting District 50, United Mine Workers of America, herein called the UMW, a labor organization not in compliance with the provisions of Section 9 (f), (g), and (h) of the Act. To effectuate the finding of discrimination, the Board ordered the Respondent to reinstate Gross, upon application, to his former or substantially equiv- alent position. To remedy the effect of the illegal assistance to the UMW, the Board ordered the Respondent to cease giving effect to its contract with the UMW and to withdraw and withhold recognition from the UMW unless and until the UMW shall have been certified by the Board as the exclusive bargaining representative of the Respond- ent's employees. On April 29, 1955, the Respondent filed with the Board a motion for reconsideration of the Board's Decision and Order. In its mo- tion, the Respondent urged that Welch Gross be denied reinstatement because of his participation in certain alleged misconduct during the course of a strike against the Respondent. On May 11,1955, the UMW filed an application to modify Board order and supporting argument, in which it requested that the Board amend its Order by striking there- from paragraphs numbered 1 (c), 1 (d), and 2 (c), said paragraphs relating- to the direction that the Respondent cease giving effect to its contract with the UMW and that the Respondent withdraw and withhold all recognition from the UMW unless and until said labor organization has been certified by the Board. For the reasons set forth below, the Respondent's motion for reconsideration and the UMW's application to modify Board order are denied. A. Respondent's motion for reconsideration The Respondent contends in its motion that Gross participated in picket-line misconduct which disqualified him for reinstatement, and further, that Gross should be denied reinstatement because he engaged in an unlawful secondary boycott of Respondent's customers. Similar contentions were made by the Respondent in its exceptions to the In- termediate Report and supporting brief. 113 NLRB No. 83. BOWMAN TRANSPORTATION, INC. 787- The Board,' having duly considered the Respondent's motion for reconsideration of its decision ordering Gross' reinstatement, the mo- tion is denied on the ground that it raises no issues not previously considered by the Board. B. UMTV's application to modify Board order In its application, the UMW urges that the Board's remedial Order, directing the Respondent to cease and desist from recognizing the UMW unless and until it was certified, is unlawful because the Board has no power under the Act to require that a labor organization par- ticipate in a Board election before it may represent an employer's employees, and because the Order penalizes the UMW for its non- compliance with Section 9 (f), (g), and (h) of the Act. The UMW, although duly apprised that the General Counsel al- leged in his complaint that it had been unlawfully assisted by the Re- spondent, did not file exceptions to the Trial Examiner's finding of such assistance or to his recommendation that the Respondent with- draw and withhold recognition from the UMW unless and until it ob- tained a Board certification. Under the circumstances, we conclude that ,the application to modify Board order raises issues which should have been urged as exceptions to the Intermediate Report and that its filing is therefore untimely.' However, aside from the application's untimeliness, we are per- suaded that the contentions raised in, the UMW's moving papers lack merit. With respect to the Board's power to issue the type of order here under attack, Section 10 (c) of the Act authorizes the Board, when it finds that an unfair labor practice has been committed, "to cause to be served on such person [committing the unfair labor practice] an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action . . . as will effectuate the policies of the Act." Pursuant to this congressional mandate, the Board has, since its earliest days, recognized that the policies of the Act could best be effectuated in cases involving violations of Section 8 (a) (2) by directing the offending employers to withhold the preferred treatment afforded to the labor organizations involved until the effect of the unfair labor practices had been dissipated and the majority status of such unions had been established in an atmosphere free of restraint and coercion. In the case of a dominated labor organization, the Board normally orders the complete disestablishment of such organization with the i Section 102 46 of Board Rules and Regulations provides that any party to a com- plaint proceeding may, within 20 days from the date of service of the order transferring the case to the Board, file with the Board exceptions to the Trial Examiner's Interme- diate Report and Recommended Order. 788 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD result that a dominated union can never be certified by the Board.' Such orders have successfully withstood challenge before the Supreme Court which has approved their issuance on the ground that they con- stituted a valid exercise of the Board's remedial powers under Section 10 (c) of the Act 3 However, in the case of an assisted but undomi- nated- labor_organization, the Board has required the offending em- ployer to withdraw and withhold recognition from the assisted union until it was certified, thus enabling the Board to assure the affected employees that their statutory right to freely choose a bargaining rep- resentative shall be preserved by conducting an election under condi- tions which will render such a choice possible. It would seem clear, on the basis of the foregoing, that if this Board possesses the power under Section 10 (c) of the Act to dissipate the effect of an unfair labor practice by completely removing a dominated union as bargaining representative of the offending employer's em- ployees; as the Supreme Court has held, the Board manifestly has the statutory power to impose the lesser sanction of certification in the case of an assisted union in order to effectuate the policies of the Act. In its Decision and Order, the Board concluded that the Respondent had unlawfully accorded the UMW the status of exclusive bargaining' representative for its employees. The right to such an exclusive status derives solely from the Act which we administer 4 To remedy the un- - fair labor practice here committed, the Board is under a statutory duty- to insure that that status is acquired free from any assistance by the respondent.- Section 9 (c) of the Act, embodying the election proce- dures established by Congress for determining the exclusive majority representation rights of labor organizations, affords the channel through which that remedy can be effected. By its Order, the Board is merely directing that the UMW, like any other assisted union, demonstrate that its right to be the exclusive representative of the em- ployees involved has been established in an atmosphere free of re- straint and coercion. The UMW also contends in its application to modify Board order that the order operates to penalize the UMW because of its noncom- pliance with the provisions of Section 9 (f), (g), and (h) of the Act. Apparently inherent in this contention is the argument that, as the UMW did not invoke the Board's processes in these proceedings, the Board is compounding the sanctions of those provisions by involving- 2 See The Carpenter Steel Company, 76 NLRB 670, 671, Pennsylvania Greyhound Lines, Inc 1 NLRB 1, enfd 303 U S 261 S See N. L R It v Pennsylvania Greyhound Lines, Inc, footnote 2, supra; N L R. B. v. Newport News Shipbuilding & Drydock Co ., 308 U S 241 * See National Maritime Union of America v Herzog, 78 F. Supp 146, 156 (D C, D C ), affd. per curiam 334 U S. 854: That extraordinary privilege [ of exclusive representative status ] is extended by statute and except for the Act, employers are not under compulsion to bargain collectively. BOWMAN TRANSPORTATION, INC.' 789 the UMW in these cases and requiring certification as a condition of achieving representative status, a condition which it cannot fulfill unless it comes into compliance. Any "penalty" which the UMW conceives has been imposed upon it because of its inability to achieve certification stems, not from any action by this Board, but from the UMW's willful refusal to comply with the provisions of Section 9 (f), (g), and (h). Congress imported those provisions into the Act,-which require that labor organizations and their officers file various financial and organizational reports and non-Communist affidavits, because it believed that "the public, and particularly the employees in a bargaining unit called on to ballot concerning the choice of a bargaining agent, have a substantial interest in knowing pertinent facts concerning the organization which seeks the statutory privilege of being the exclusive bargaining representa- tive." s The UMW has chosen not to make those "pertinent facts" public, but nevertheless desires the exclusive representation rights at the Respondent's terminals. In answer to a similar contention raised in National Maritime Union of America v. Herzog,' the court stated : The argument of the plaintiff [union], which we have summarized above, concedes that Congress had the right to require the reports called for by Section 9 (f) but asserts that it had no right to withhold from a union which refused to file them, the privilege conferred by the same statute of being chosen as exclusive bar- gaining agent. The "results that flow" from so doing will be virtual destruction of the union, plaintiff says. Those results flow, not from the operation of the statute, but from the plaintiff's will- ful refusal to furnish information which they admit is consti- tutionally required. If the plaintiff Union suffers the loss of a chance to be chosen as exclusive bargaining agent because of its failure to file the reports exacted by Section 9 (f), the injury is the result of its own choice in deciding not to file the statements which it admits are constitutionally required. In sum, the UMW is here suggesting that the Board do for the UMW what it would not do for a complying union found to have been illegally assisted. The very nature of the 8 (a) (2) violation imports into the Board processes the labor organizations which are so assisted; and the orders of the Board, directed as they are against offending employers, necessarily involve those labor organizations. Where a noncomplying union happens to be the assisted union in such pro- ceeding, there appears to be no justifiable reason for extending pre- ferred treatment to it over complying labor organizations by eliminat- ing the certification requirement in the Board's orders. To do so 6lbad. at p. 155. 6 [bad at p 158 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would negative the policy and intent of Section 9 (f), (g), and (h) of the Act. ORDER IT IS HEREBY ORDERED that the Respondent's motion for reconsidera- tion be, and it hereby is, denied. IT IS HEREBY FURTHER ORDERED that the application for modification of Board order filed by the United Mine Workers of America be, and it hereby is, denied. Sparkle Markets Company and Retail Clerks International Asso- ciation, Local 133, AFL, Petitioner. Case No. 8-RC-0464. Au- gust 17, 1955 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Paul Weingarten, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1.. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following rea- sons: The Employer operates a chain of 16 retail grocery stores in the Pittsburgh, Pennsylvania, area. Thirteen of the stores are located in Pennsylvania, 1 in Weirton, West Virginia, and 1 each in Steuben- ville and East Liverpool, Ohio. The Petitioner seeks to represent a unit of all employees in the grocery, home center, and produce de- partments of the East Liverpool store, excluding, among others, the meat department employees. The Employer and the Intervenor con- tend that the only appropriate unit is one consisting of employees in. all the Employer's stores. The Intervenor has bargained for the Employer's employees in a single multistore unit since 1937. Its current contract is effective' from October 17, 1954, to October 17, 1956 z The East Liverpool store is a new operation, first opened for business in March 1955. 1 Amalgamated Meat Cutters & Butcher Workmen of North America , Local 424, herein called the Intervenor, was permitted to intervene on the basis of its current contractual interest. ' The Employer and Intervenor contend that this contract is a bar to this proceeding. In view of our decision in this case , we find it unnecessary to pass upon this question. 113 NLRB No. 87.