Crawford Clothes, Inc.

CRAWFORD CLOTHES, INC. 471 Crawford Clothes, Inc. and Robert Cross and Building Mate- rial Teamsters, Local Union No. 282, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party to the Contract Building 'Material Teamsters, Local Union No. 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Robert Cross and Crawford Clothes, Inc. Cases Nos. 2-CA-5610 and 2-CB-3082. March 31, 1959 DECISION AND ORDER On November 28, 1958, Trial Examiner Sidney Lindner issued his 'Intermediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain un- fair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that Respondents had not engaged in certain other unfair labor -practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respond- ents filed' briefs in reply to the General Counsel's exceptions and in support of the Intermediate Report. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire rec- ord in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications and exceptions noted below. We do not agree with the Trial Examiner's conclusion that in 1946 the contract between the Respondent Union and Respondent Crawford contained a seniority clause by the terms of which sepa- rate seniority lists, one for drivers and another for helpers, were established. On the contrary, the record does not contain evidence of the terms of any collective-bargaining agreement antedating the '19N-58 agreement, which provides only that "seniority shall pre- vail" and that any employee who works 10 days in any 2-month period shall be entitled to a place on the seniority list. We find, however, as did the Trial Examiner, that Respondent Crawford and the. Respondent Union did not violate Section 8(a) (1) and (3) 'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel (Chairman Leedom and Members Bean and Jenkins]. 123 NLRB No. 62. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Section 8(b) (1) (A) and (2) of the Act, respectively, by the layoff of Cross. For, on the basis of the entire record, we agree with ,the Trial Examiner's ultimate conclusion that the General Counsel has failed to sustain his burden of proving by a preponderance of the credible evidence that the Respondents had an unlawful agree- ment, practice, or arrangement whereby the Respondent Union was given final and exclusive control over the seniority of Respondent Crawford's employees. THE REMEDY The Trial Examiner found that the collective-bargaining agree- ment between Respondents by the express terms of Sections 5 and 9, respectively, provided for preferential hiring of members of the Respondent Union and for membership in the Respondent Union, as a condition of continued employment, without the 30-day waiting period required by Section 8(a) (3) of the Act. As recommended by the Trial Examiner, the Board will order the Respondents to cease maintaining or enforcing those provisions of the contract involved herein which have been found to be violative of the Act. The record shows that, by the unlawful provisions of the contract involved herein, the Respondents have unlawfully encouraged em- ployees to join the Respondent Union in order to obtain or maintain employment, thereby inevitably coercing them into the payment of initiation fees, union dues, and other sums. In order adequately to remedy the unfair labor practices found, the Respondents should be required to reimburse employees of the Company for any ini- tiation fees or dues, and other moneys, which have been unlawfully exacted from them as the price of their employment. As part of the remedy, therefore, we shall order the Respondents, jointly and severally, to refund to the drivers and drivers' helpers of the Re- spondent Company all initiation fees, dues, and other moneys paid by them to the Union as the price of their employment. We believe that these remedial provisions are appropriate and necessary in order to expunge the coercive effect of the Respondent's unfair labor practices.2 The liability of each Respondent for reimbursement shall begin 6 months prior to the date of the filing and service of the charge against it, and shall extend to all such moneys thereafter collected.' ORDER Upon 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 : 2 Morrison-Knudsen Compan y, Inc., 122 NLRB 1147. 3 Los Angeles-Seattle Motor Express, Incorporated, 121 NLRB 1629. CRAWFORD CLOTHES, INC. 473 A. The Respondent, Crawford Clothes, Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Maintaining in effect, implementing, or renewing the clauses of any agreement with the Respondent Teamsters or any other labor organization which grants preference in employment to members of said Union or any other labor organization, or which requires employees to maintain their membership in such labor organization as a condition of continued employment, except as authorized in Section 8(a) (3) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees or applicants for employment in the exer- cise of the rights guaranteed in 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 in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : ('a) Post in conspicuous places at its business offices in Long Island City, New York, copies of the notice hereto attached marked "Ap- pendix A."' Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an authorized representative of the Company, be posted by the Com- pany immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (b) Post at the same places and under the same conditions as set forth in (a), above, and as soon as they are forwarded by the Re- gional Director, copies of the Respondent Union's notice herein, marked "Appendix B." (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all records, reports, and other documents necessary to analyze the amounts of moneys due under the terms of the Order. (d) Notify the Regional Director for the Second Region in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. B. The Respondent, Building Material Teamsters, Local Union No. 282, International Brotherhood of Teamsters, Chauffeurs, Ware- I 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." 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD housemen and Helpers of America , its officers , representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining in effect, implementing, or renewing the clauses of the agreement with Respondent Crawford Clothes, Inc., or any other employer, which require employees or prospective employees to be members of its organization as a condition of continued em- ployment and which grants preference in employment to its mem- bers, except as authorized by Section 8(a) (3) of the Act. (b) In any like or related manner interfering with, restraining or coercing employees of Crawford Clothes, Inc., or any other em- ployer, in the exercise of rights guaranteed in 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 em- ployment as authorized by Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Preserve and make available to the Board or its agents, upon request, for examination and copying,-all records, reports, and other documents necessary to analyze the amounts of money due under the terms of this Order. (b) Post at its offices and meeting halls copies of the notice attached hereto marked "Appendix B."' Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondent Union's, , representatives, be posted immediately upon receipt thereof and be maintained by them for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material. (c) Mail to the Regional Director for the Second Region signed copies of the notice attached hereto marked "Appendix B" for posting by Respondent Crawford Clothes, Inc., at its place of busi- ness in Long Island City, New York, in places where notices to employees are customarily posted. Copies of said notice, to be fur- nished by the Regional Director, shall, after being signed by a rep- resentative of the Respondent Union and the Respondent Employer, be forthwith returned to the Regional Director for such posting. (d) Notify the Regional Director for the Second Region in writ- ing, within 10 days of the date of this Order, as to what steps they have taken to comply herewith. C. The Respondent Company, Crawford Clothes, Inc., its officers, agents, successors, and assigns and the Respondent Union, Building 5 See preceding footnote. CRAWFORD CLOTHES, INC. 475 Material Teamsters, Local Union No. 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, successors, and assigns shall, jointly and severally, reimburse the employees and former employees employed as drivers and drivers' helpers by the Respondent Company for moneys illegally exacted from them in the manner and to the extent set forth in the section of this Decision and Order entitled "The Remedy." IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that Respondent Crawford violated Section 8(a) (1) and (3) of the Act and Respondent Teamsters violated Section 8(b) (1) (A) and (2) of the Act with respect to Robert Cross. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT enter into, maintain in effect, implement, or renew the clauses of any agreement with Building Material .Teamsters, Local. Union No. 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers.of America, or any other labor organization which grants preferential em- ployment to members of such labor organization or which requires our employees to join or maintain their membership in such labor organization as a condition of continued employment unless such agreement has been authorized as provided in the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our, employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Building Material Teamsters, Local Union No. 282, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL reimburse all employees and former employees em- ployed by us as drivers and drivers' helpers at Long Island City, New York, for all initiation fees, dues, or other moneys paid by them to Local 282 as a condition of membership. All our employees are free to become, remain, or to refrain from becoming or remaining, members in good standing of Building Material Teamsters, Local Union No. 282, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the Act. CRAWFORD CLOTHES,, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our members that : WE WILL NOT enter into, maintain in effect, implement, or re- new the clauses of any agreement with Crawford Clothes, Inc., or any other employer, which requires employees to join or maintain their membership in this labor organization as a con- dition of employment or continued employment unless such agreement has been authorized as provided in the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner restrain or coerce employees or prospective employees of Crawford Clothes, Inc., or any other employer within our territorial jurisdiction over which the Board would assert jurisdiction, in the exercise of the rights guaranteed in 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 em- ployment as authorized by Section 8(a) (3) of the Act. WE WILL return to all employees of Crawford Clothes, Inc., employed as drivers and drivers' helpers at Long Island City, CRAWFORD CLOTHES, INC. 477 New York, all initiation fees, dues, and other moneys paid us by them as a condition of membership. BUILDING MATERIAL TEAMSTERS, LOCAL UNION No. 282, INTERNATIONAL BROTII- ERFIOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed by Robert Cross, an individual, herein called Cross, against Crawford Clothes, Inc., herein called Respondent Crawford, and against Building Material Teamsters, Local Union No. 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Respondent Teamsters, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region (New York, New York), issued an order consolidating the cases, a consolidated complaint and notice of hearing alleging that Crawford had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, and that the Teamsters had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act. Copies of the charges, the order consolidating cases, the consolidated complaint and notice of hearing were duly served upon the Respondents and the charging individual, Cross. With respect to the unfair labor practices the consolidated complaint alleged in substance that: (1) At some time during the year 1956, the Respondents entered into and since that time have maintained in effect and enforced an understanding and arrangement relating to hire, tenure, terms, and conditions of employment of Crawford employees, whereby exclusive control over the seniority ranking of Crawford employees, which seniority ranking determines the employment, order, duration, and tenure of employment and recall, and the order and duration of layoff of said employees, has been given and delegated to the Teamsters; (2) on or about May 10, 1957, Respondent Teamsters caused and attempted to cause Respondent Crawford to discharge and thereafter fail and refuse to reinstate its employee Cross because of the maintenance and enforcement of the understanding and arrangement above described; and (3) the collective-bargaining agreement entered into between Respondents in 1956 contains, inter alia, provisions which require the preferential hiring of members of Respondent Teamsters, and also membership by Respondent Crawford's employees in Respondent Teamsters as a condition of continued employment by Respondent Crawford and which pro- visions do not comply with the requirements of Section 8(a)(3) of the Act. In their . answers the Respondents denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held on July 16 and 17, 1957, at New York, New York, before the Trial Examiner duly designated by the Chief Trial Exam- iner. The General Counsel and the Respondents were represented by counsel, Cross representing himself. All parties in the hearing were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue orally upon the record, and to file briefs and proposed findings and conclusions. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the hearing the Trial Examiner, in accordance with the then prevailing Board decisions, denied Respondent Crawford 's motion for production of pretrial statements given to the General Counsel by the witness Cross. On September 8, 1958, the Trial Examiner issued an order in accordance with the Board's order in Ra-Rich Manufacturing Corporation , 121 NLRB 700 , by the terms of which the General Counsel was ordered to make pretrial statements of witnesses available to Respondent Crawford and granting Respondent Crawford the right to move within 15 days to reopen the hearing herein for the limited purpose of further examining any witness whose pretrial statements were within the scope of the order. Respondent Crawford having moved to reopen the hearing within the specified period, the said motion was granted and the hearing was reconvened on October 27, 1958. Briefs were received from the various counsel and have been duly considered. The Respondents' motions to dismiss are disposed of in accordance with the determinations below. Subsequent to the close of the hearings , motions were received from the General Counsel and from counsel for Respondent Crawford to correct the transcript. No opposition to the said motions has been received and the said motions are hereby granted. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Crawford Clothes, Inc., is a corporation duly organized under and existing by virtue of the laws of the State of New York. At all times material herein Re- spondent Crawford has maintained its principal office and place of business in Long Island City, New York, herein called the Long Island plant , and various other plants and places of business, warehouses, and other facilities in the States of New York, New Jersey , and other States, and is now and has been continuously engaged at said plants and places of business in the manufacture , sale, and dis- tribution of clothing , wearing apparel, and related products. In the course and conduct of its business operations , Respondent Crawford during the past year caused to be purchased , transferred, and delivered to its Long Island plant, goods and materials valued at in excess of $ 1,000,000, of which goods and materials valued at in excess of $500,000 were transported to said plant in interstate com- merce directly from States of the United States other than the State of New York. During the same period Respondent Crawford in the course and conduct of its business operations caused to be manufactured at its Long Island plant products valued in excess of $ 1,000,000, of which products valued in excess of $200,000 were shipped from said plant in interstate commerce directly to States of the United States other than the State of New York. It was stipulated at the hearing and I find that Respondent Crawford is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION Building Material Teamsters , Local Union No. 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , is a labor organization admitting to membership employees of Respondent Crawford. III. THE UNFAIR LABOR PRACTICES A. Sequence of events Robert Cross entered Respondent Crawford's employ in June 1936 as a helper on a truck. After several months, he obtained a chauffer 's license and was as- signed to driving a truck, which he continued to do until he entered the armed services in 1942. Cross returned to his job in 1946, upon his release from the services. He was laid off by Respondent Crawford in a reduction in force-for a 2-month period sometime between 1948 and 1950 . On May 10, 1957 , Cross was again laid off in a reduction in force. During the period of his employment, Cross was 1 of the employees in a unit of truckdrivers and helpers which varied in size over the years from a maximum of 12, a driver and 2 helpers to each of 4 trucks, to 2, a driver and helper to 1 truck at the time of the hearing. There has always been a differential between the base pay of drivers and helpers. At the time of Cross' layoff the base pay for drivers was $90.40 a week, whereas helpers' base pay was $84 .40 a week. CRAWFORD CLOTHES, INC. 479 In the winter of 1946, Respondent Teamsters was designated as the collective- bargaining representative of the employees in the unit of drivers and helpers. The most recent collective-bargaining agreement between Respondents was entered into in 1956, effective from September 1, 1956, to and including August 31, 1958. In section 5 of the said agreement, labeled "Union Security," it provides among other things as follows: "Seniority shall prevail. An employee who works 10 days during any two (2) month period shall be entitled to a place on the seniority list." Section 6, labeled "Stewards," provides that ". . In case of a slack season he [steward] shall be the last chauffeur to be laid off and under no consideration shall he be discriminated against." Section 15 is an arbitration clause. Section 17 grants employees who have been enjoying wages or conditions more favorable than required by the contract the same differential, it being under- stood that the contract shall not be construed to permit diminution of any existing benefit. Cross testified that prior to the advent of Respondent Teamsters as the collective- bargaining representative, a single seniority list for both drivers and helpers was in existence. In a reduction in force in 1937, Respondent Crawford laid off the person who had the least seniority, without regard to whether he was a driver or helper. It was admitted by Cross, however, that in 1946, after the Respondent Teamsters became the collective-bargaining representative, the contract between it and Re- spondent Crawford contained a seniority clause by the terms of which separate seniority lists were established for drivers and another for helpers. Frank Schwartz, general manager and assistant secretary for Respondent Craw- ford for 2 and 4 years, respectively, whose duties, among others, include the hiring and firing of drivers and helpers, testified that during this period there have always been separate lists of drivers and of helpers for purposes of seniority. Schwartz stated that seniority lists were not posted but that he kept such lists in his mind.' Indeed, at some time between 1948 and 1950 when it was necessary for Respondent Crawford to reduce in force because of lack of work, resort was had to separate seniority lists for drivers and helpers, with the result that Re- spondent Crawford laid off Cross for 2 months. Cross complained to the Respond- ent Teamsters Business Agent Holland at that time and was told that his layoff came about because there were separate seniority lists for drivers and for helpers. Cross did not pursue the matter further with Respondent Crawford. Because of business necessity, Respondent Crawford removed two trucks from service during 1957. The first was removed in the spring with the resultant layoff of a driver and a helper 2 and the second on May 10, at which time Cross and helper Thomas were notified they were being laid off. Schwartz testified that it was his decision in May 1957 to operate with one truck less. Schwartz testified further that the determination of seniority for purposes of reducing in force was based on the seniority within the category of driver and separately for helper, as it had been during the 4-year period that he was an officer of Respondent Crawford.3 Schwartz stated that when this decision was made he told Friedman that Respondent Crawford was "laying off Robbie Cross and another gentleman [Thomas] at that particular time, and [I] just wanted to verify with you whether your seniority list compares with mine." Schwartz denied that when the decision was made to lay off Cross and Thomas he relied on information supplied to him by Respondent Teamsters. 1 Up to May 1957 and for some time prior , Respondent Crawford had in its employ three drivers and three helpers. 2 Cross testified that the driver was DeCarlo and the helper LaRusso who were properly laid off on the basis of either separate lists for drivers and helpers or a single list for both drivers and helpers. 3If seniority was determined separately for drivers and helpers , with allowance for superseniority to Shop Steward Friedman, the lists would have been : Drivers Helpers 1. Friedman 1. Lewter 2. Watson 2. Buchino 3. Cross 3. Thomas If seniority was determined on the basis of a single list for both chauffeurs and helpers, the order of seniority would have been : 1. Friedman, 2. Watson, 3. Cross, 4. Lewter, 5. Buchino, and 6. Thomas. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cross testified that when he received the notice of his layoff he asked Schwartz why he was being laid off since he had more seniority than some of the men who were retained. Schwartz , according to Cross, replied that he did not have any- thing against him, but since he had to take a truck out of service , he contacted Fat 4 who "gave him the names of the two men that were to go." Schwartz com- mented that it did not make any difference to him who the men were. Schwartz testified that he told Cross the matter of his layoff "was verified with the Union , and if he has any further discussion , to discuss it with the Union." Cross admitted that he did not hear any discussion regarding layoffs between Schwartz and Friedman, nor did he see Friedman hand Schwartz the names of the two employees who were to be laid off. Several days after his layoff, Cross arranged to meet William McKee, Respond- ent Teamsters' business agent, at the Crawford plant . Cross complained to McKee that he was laid off even though he had more seniority than some of the other men.5 Cross testified that McKee asked how seniority had been established at the plant. Cross replied that- as far as [I] was concerned it was a straight seniority list, because [I] had worked with the Company before the Union came in , and that [I] had worked as a helper on the trucks, and when some of the men were laid off and some of the trucks were laid up, that some of the chauffeurs , if they were older than the helpers, would work as helpers, and [I] wanted to know why [I] could not do it now.6 Cross testified that McKee asked the four remaining drivers and helpers as well as himself how Ray Holland, the previous business agent of Respondent Team- sters, "established the seniority list," and if it was a separate seniority list. Three of the men replied that seniority was determined on the basis of separate lists for drivers and for helpers, one did not answer , and Cross said a single list was the criterion. Cross further testified that after the poll was completed McKee said "if it was established that way, that is the way it will be ." Since his layoff on May 10, 1957, Cross was offered temporary employment by Respondent Crawford but did not accept. Conclusions as to Cross' Discharge As hereinabove found, Cross admitted that in 1946 , after the Respondent Team- sters became the collective-bargaining representative of Crawford 's drivers and helpers, the contract between it and Respondent Crawford contained a seniority clause by the terms of which separate seniority lists were established : one for drivers, another for helpers. Cross further admitted that when he was laid off by Respondent Crawford some- time in 1948 or 1950 , it was by application of the separate seniority lists. Indeed, when Cross at that time complained to his collective -bargaining representative that his employer had improperly laid him off , claiming he had more seniority than a helper who was retained , he was told that seniority was determined separately for drivers and for helpers . Cross did not pursue the matter further. In Pacific Intermountain Express Company , 107 NLRB 837, the company and the Teamsters Union entered into a collective agreement which stated: Any controversy over the seniority standing of any employee on this list shall be referred to the union for settlement. Under this grant of authority , the union placed certain drivers on the seniority list in accordance with the date they joined the union rather than the date they were employed by the company . As a result of this placement, employees who joined the union promptly were accorded better employment opportunities than those who were actually employed by the company at an earlier date but joined 4 This is another name for Friedman , the shop steward of Respondent Teamsters. It will be recalled that if seniority was determined on the basis of a single list for both drivers and helpers then Cross would have been senior to helpers Lewter and Buchino. 9 Cross admitted on cross-examination that in the 1950 reduction in force when he was laid off before Buchino, he complained to the business agent and was told that the layoffs were on the basis of seniority established by separate lists for drivers and helpers. CRAWFORD CLOTHES, INC. 481 the union later. In its decision the Board held that the contract clause violated the Act. Its theory was that where "an employer delegates to a union the au- thority to determine the seniority of its employees, or even to settle controversies. with respect to seniority, such control will be exercised by the union" in a dis- criminatory manner. The Board went on to conclusively presume- that such a delegation is intended to, and in fact will, be used by the union; to encourage membership in the union. Accordingly, the inclusion of a bad- provision like that in the contract that delegates complete control over sen- iority to a union is violative of the Act because it tends to encourage mem- bership in the union. It is thus clear from the Board's decision that what is prohibited is the granting; to the union of the power to dominate absolutely the matter of seniority standing, without any standards and in all circumstances. In every case since the Pacific Intermountain decision in which the Board has; found violations of the Act on a claim of delegation, there has been present a; written agreement between the union and the employer setting forth such an across-the-board delegation. See Minneapolis Star and Tribune Company, 109 NLRB 727; Northeast Texas Motor Lines, Inc., 109 NLRB 1147, enfd. sub nom. N.L.R.B. v. Dallas General Drivers, etc., 228 F. 2d 702 (C.A. 5); Chief Freight Lines Company, 111 NLRB 22; Kenosha Auto Transport Corporation, 113 NLRB 643; Theo. Hamm Brewing Co., 115 NLRB 1157; Interstate Motor Freight Sys- tem, 116 NLRB 755; Gibbs Corporation, 120 NLRB 1079; Houston Maritime,. Association, 121 NLRB 389; Meenan Oil Co., Inc., 121 NLRB 580; Kramer Bros.., Freight Lines, Inc., 121 NLRB 1461. There is not a scintilla of evidence in the record that in 1946 or thereafter. Respondent Crawford granted Respondent Teamsters an across-the-board delega- tion with power to dominate absolutely the matter of seniority, without any stand- ards and in all circumstances. On the contrary, based on the findings herein- above made, namely, a change in seniority standards in 1946 in the first collective- bargaining contract between the Respondents, and again in 1950 when the 1946. seniority standards were strictly applied in a reduction-in-force situation, and in, the absence of other evidence, I must presume that the establishment of two separate seniority classifications, one for drivers, another for helpers, was mutually arrived at between the parties in a legal manner. Although Cross' layoff in 1957 was determined on the basis of separate seniority lists for drivers and helpers,7 the identical standard of seniority which had been: used in the only other reduction in force since the Respondents have been in con- tractual relations, the General Counsel does not accept the presumption of con- tinued legality, but takes the position that on May 10, 1957, the parties came to. an arrangement and understanding that Respondent Teamsters should have and did have final and exclusive control over seniority of Crawford employees in, violation of the Act.8 Even assuming arguendo that on May 10, 1957, Schwartz obtained Cross' name from the shop steward as one of the men to be laid off that day, is it possible. to draw the inference from this single incident, in the light of Cross' admissions set out above, that this was such a "delegation" to Respondent Teamsters which was. "intended to, and in fact will, be used by the union to encourage membership in the union"? Pacific Intermountain Express, supra. I conclude that it is not. Were I to conclude otherwise, it would result in setting up a barrier between an employer and the majority representative of his employees which would make it virtually impossible for an employer to contact the union for information in order- to properly administer a collective-bargaining contract. To place such an obstacle ' It is noteworthy that Cross readily admitted that "if there were separate lists, yes, [I] was the right man to go." 8 This position is based on Cross' testimony that Schwartz told him "he had contacted Fat-that is what we call the shop steward-and that he gave him the names of the two. men that was [sic] to go." I have considered the testimony of Cross and Schwartz which is in conflict regarding this incident, as well as the correspondence of Respondent- Crawford's attorney to 'a Board field examiner, which I construe to be admissions, but find it unnecessary to resolve the conflict in view of the conclusions hereinafter reached. 508889-60-vol. 123-32 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the path of parties to a collective-bargaining contract would negate the basic principle of the Act, to promote collective bargaining. It must also be remembered that all of Crawford's drivers and helpers were members of Respondent Teamsters. Cross readily admitted that neither Respond- ent Teamsters nor its business agent discriminated against him for any reason, but rather processed grievances in his behalf with the Employer when called upon to do so. So that, even if Respondent Teamsters made the determination that Cross was the driver to be laid off because of his position on the seniority list, the reasons it did so were "unrelated to union membership or the performance of union obligations," 9 and therefore did not tend to encourage or discourage union membership. I find that the General Counsel has failed to sustain his burden of proving by a preponderance of the evidence that the parties herein had an arrangement or understanding whereby Respondent Teamsters was given final and exclusive control over the seniority of Crawford's employees. Moreover, when viewed in the context of the separate seniority lists established by contract between the parties in 1946 and Cross' testimony of the practice re- sorted to by the Employer in the reduction in force in 1950, the fact that Respond- ent Crawford went to the Teamsters' shop steward to obtain the names of the two men who were lowest in seniority, I find, is not at all inconsistent with the mutual understanding of the parties previously arrived at by legal means. The Illegal Contract Clauses The contract between Respondents contains, inter alia, in section 5 and in section 9, respectively, the following provisions: The foregoing paragraphs of this section shall be subject to the Union's right to require only members in good standing to be retained in employment and to be hired to fill vacancies in the event that this is not in conflict with the law at any time during the term of this agreement. Employers shall hire only union loaders when available, and not less than three men must help the chauffeur or driver to load his truck or automobile. This provision shall not apply to the unloading of trucks or equipment. The complaint alleges that at some time during the year 1956, Respondents entered into, and since that time have maintained in effect and enforced, a col- lective-bargaining agreement between themselves relating to hire, tenure, terms and conditions of employment of Crawford's employees which contain, inter alia, the provisions above set forth and by such acts engaged in unfair labor practices in violation of the Act. The agreement between Respondents in evidence reveals that it was to continue from September 1, 1956, to and including August 31, 1958. It is the position of the General Counsel that the language quoted above from sections 5 and 9 of the agreement provides for the preferential hiring of Respond- ent Teamsters' members and also membership by Crawford's employees in Re- spondent Teamsters as a condition of continued employment by Crawford without the 30-day waiting period required by the Act. The General Counsel further con- tends that even if Respondents intended to consider the said clauses inoperative and even though they may never have been applied, the mere presence of the said clauses in the agreement tends to restrain employees in violation of Section 8(a)(1) and (3) and 8(b)(1)(A) and (2) of the Act. I agree with the contentions of the General Counsel but find also that by the express terms of the quoted clauses, Respondent Crawford was bound to give preference in employment to Respondent Teamsters' members and further as a condition of continued employment, Crawford's employees had to be members of Respondent Teamsters under conditions which do not comply with the require- ments of Section 8(a)(3) of the Act. Since the execution of the 1956 agreement took place prior to a date 6 months before the filing of the charge against Respondents in the instant case, no finding g Daugherty Company, Inc., 112 NLRB 986; see also Pacific Maritime Association, 121 NLRB 938. CRAWFORD CLOTHES, INC. 483 of a violation is made based upon the mere execution of the agreement. I find, however, that by maintaining in effect and enforcing the above-quoted clauses of the agreement, Respondent Crawford violated Section 8(a)(1) and (3) and Re- spondent Teamsters violated Section 8(b)(1)(A) and (2). Heating, Piping and Air Conditioning Contractors etc., and Dierks Heating Co., Inc., 102 NLRB 1646; Marley Company, 117 NLRB 107. The purported savings clause in section 5 does not cure the otherwise illegal provisions. Red Star Express Lines of Auburn, Inc. v. N.L.R.B., 196 F. 2d 78 (C.A. 2), enfg. 93 NLRB 127. There is no merit to the contentions of the Respondents that the illegal clauses are neither elaborations nor particularizations of any of the matter contained in the charge and that such allegations in the complaint are in no way related to the charge made by Cross and therefore should be dismissed. Section 10(b) does not require charges to specify or particularize each unfair practice. It is sufficient that findings are based on conduct which is alleged in the complaint and which occurred within 6 months preceding the filing and service of the initial charge. Pacific American Ship Owners Association, et al., 98 NLRB 582; R. H. Osbrink Manufacturing Company, 104 NLRB 42. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occuring in con- nection with the operations of Respondent Crawford set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor prac- tices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondents have maintained in effect and enforced a collective-bargaining agreement which contains clauses for the preferential hiring of Respondent Teamsters' members and also requires membership by Crawford's employees in Respondent Teamsters as a condition of continued employment by Crawford without the 30-day waiting period required by the Act, I shall recom- mend that they cease and desist from giving effect to those clauses or similar clauses and from any extension or renewal thereof. Upon the basis of the foregoing findings of fact and upon the record as a whole, I make the following: CONCLUSIONS OF LAW 1. Crawford Clothes, Inc., is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Building Material Teamsters, Local Union No. 282, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining in effect and enforcing a collective-bargaining agreement which requires Crawford's employees to be members of the Respondent Teamsters as a condition of continued employment by Crawford without the 30-day waiting period required by the Act and which grants preferential hiring to Respondent Teamsters' members, Respondent Crawford has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act and Respondent Teamsters has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 4: The unfair labor. practices found herein are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Respondent Crawford and Respondent Teamsters have not engaged in unfair labor practices within the meaning of the Act with respect to Robert Cross. [Recommendations omitted from publication.]