Miranda Fuel Co., Inc.

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as wages from on or about August 12, 1958, to the date of the offer of reinstatement less his net earnings during such period, the backpay to be computed on a quarterly basis in the manner established by the Board in F W Woolworth Company, 90 NLRB 289 I shall also recommend that the Respondent fully restore the status quo of Jay Weand as to wages and job and that Respondent make him whole in a sum of money by which it reduced his wages from on or about August 12, 1958 It will also be recommended that Respondent preserve and upon reasonable request make all pertinent wage records available to the Board or its agents I am of the opinion that the unfair labor practices found herein disclose a course of conduct displaying a deliberate intent on the part of the Respondent in opposition to the purposes of the Act and indicates the likelihood of Respondent resorting to other acts of interference, restraint, and coercion in violation of the Act I will therefore recommend that Respondent cease and desist from in any manner infring- ing upon the rights of the employees as guaranteed in Section 7 of the Act Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Locals Nos 666 and 780, International Alliance of Theatrical Stage Em- ployees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act 2 By interrogating its employees as to their union membership and activities, by advising its employees that opportunities to-become a director or to be promoted to the management level would not be as good if they joined the Union, by threaten- ing a reduction in force and the dissolution of the news department "as we know it", by requesting its employees to withdraw their union membership applications, by asking its employees to vote against the Union, and by refusing employee Lipari a letter of recommendation because the Union filed unfair labor practice charges against it, the Respondent engaged in interference, restraint, and coercion of its employees in the exercise of rights guaranteed by Section 7 of the Act and thereby engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act 3 By discriminating in regard to the hire and tenur&of employment of Cal Marlin, Charles Filer, and Joseph Lipari and by discrimination in regard to the terms and conditions of employment of Jay Weand, thereby discouraging membership in Local No 666, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, the Respondent has engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(3) of the Act 4 The aforesaid unfair labor practices affect commerce within the meanin g of the Act 5 The Respondent engaged in conduct which interfered with the election in Case No 12-RC-348 and deprived its employees of their freedom of choice [Recommendations omitted from publication I Miranda Fuel Co, Inc. and Michael Lopuch and Local 553, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America , Party to the Contract Local 553, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Michael Lopuch and Miranda Fuel Co, Inc, Party to the Contract. Cases Nos 2-CA-5833 and 3-CB-2179 November 30, 1959 DECISION AND ORDER On December 18, 1958, Trial Examiner Samuel Ross issued has Intermediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair 125 NLRB No 53. MIRANDA FUEL CO., INC. 455 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. Thereafter, the the Re- spondent Union and the General Counsel filed exceptions to the In- termediate Report.' The Respondent Union also filed a supporting brief. 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 In- termediate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications. We agree with the Trial Examiner that the Respondent Company and the Respondent Union, respectively, violated Section 8(a) (3) and (1) and Section 8(b) (2) and (1) (A) of the Act by maintaining in effect an agreement which unlawfully delegated to the Union ex- clusive control over the seniority status of the Company's drivers and thereby control over their employment opportunities. In reaching this conclusion, we are mindful of the fact that the Court of Appeals for the Second Circuit denied enforcement of the Board's order in the case of Meenan Oil2 dealing with a contractual seniority pro- vision similar to that here involved, for the reason that the court was of the opinion that the clause was lawful because it provided objective criteria for the determination of seniority and did not delegate to the Union exclusive control over seniority. Apart, however, from the question of the legality of the seniority clause as it appears in the parties' contract, there is in the present case another persuasive reason impelling us to find that the Company and Union acted unlawfully in reducing the seniority status of Lopuch, the Charging Party in this proceeding. The record in this case dis- closes, and we find, that the seniority provision in question was not by its terms applicable to Lopuch's situation, and thus the reduction in his seniority, though accomplished under the guise of contractual agreement, was nevertheless not the result of the Union's performance of a purely ministerial act, but in fact was effectuated through con- cession by the Company to a position taken by the Union which, al- though purportedly in reliance on the contractual provision, never- theless was outside the scope of the parties' agreement and within the field of seniority generally. As the contract clearly did not cover 'In his exceptions , the General Counsel supports the Trial Examiner's findings and conclusions, but merely requests a minor modification in the initial paragraph of the Trial Examiner's recommended order. 2 Meenan Oil Co., Inc., 121 NLRB 580, enforcement denied 266 F. 2d 552 ( C.A. 2) ; after serious consideration and with due deference to the opinion of the court of appeals, We are constrained to adhere to our decision in that case. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lopuch's situation, we find that it cannot serve as a defense to the discrimination inherent in the reduction of Lopuch's seniority. Specifically the facts show that on April 12, 1958, Jerry Miranda, president of the Respondent Company, granted a leave of absence to Michael Lopuch, one of his drivers, to enable him to attend to certain personal matters. It appears that had Lopuch not left he would have had substantial employment during the slack season. Because of a sudden illness, Lopuch was unable to return to work on or before October 15, as he had anticipated doing. On October 30, Lopuch reported for work, retaining his number 11 position on the seniority list. However, on or about November 1, Union Steward Nance in- formed Lopuch that he had discussed his late reporting with Union Business Agent Ross and that Ross had told him that Lopuch was to go to the bottom of the list. When Lopuch protested on the ground that he had been ill, Nance told him to "go down to the Union hall and have it straightened out." The Union thereafter insisted that the Company reduce Lopuch in seniority because he did not report for work by October 15 as provided in the contract. Apparently, on Miranda's objection that Lopuch had been ill and unable to report on October 15, the Union investigated the matter. When the Union found that Lopucli had in fact been ill on October 15 and was unable to report to work at that time, it abandoned its original claim that Lopuch be dropped in seniority for failure to report on October 15 and instead insisted that Lopuch be reduced in seniority because he had left work before April 15. Although reluctant to do so, Miranda yielded to the Union's demands and Lopuch was reduced in seniority from the number 11 position he had previously occupied to the bottom position on the seniority roster. At this time, Miranda told Lopuch that "according to Local 553's contract, I was told that I had to drop [you] to the bottom of the list." As a result, Lopuch lost some Sat- urday work. Section 8 of the parties' contract, dealing with seniority, provided as follows : Section 8. It is further understood and agreed upon that during the dull season of the year, preference shall be given to the fuel oil chauffeurs on the seniority list, and that the Shop Steward shall be the No. 1 fuel oil chauffeur on the list. During the slack season, April 15 to October 15, any employee who according to seniority would not have steady employment shall be entitled to a leave of absence and maintain his full sen- iority rights during that period. Any man so described must report to the Shop Steward not later than 8:00 A.M. on October 15 and sign the seniority roster in order to protect his seniority, and the Employer agrees to accept the certification of said Shop Steward as to the availability of such men when called by the MIRANDA FUEL CO., INC. 457 Employer. If October 15 falls on Saturday or Sunday, the reporting day shall be the next work day. Any man failing to report as above specified shall forfeit all seniority rights. It is clear that by its express terms section 8 was applicable only to those employees who were entitled to a leave of absence during the slack season from April 15 to October 15 because "according to sen- iority, [they] would not have steady employment." Certainly, as the facts related above indicate, Lopuch did not fall into this category because the Company had given him a leave of absence before April 15 and regular employment would have been available to Lopuch had he remained at work. Yet, despite this fact, the Union demanded that the Company reduce Lopuch's seniority. In view of the Union's insistence, the Company, contrary to its wishes, complied with this demand, because, as Miranda admitted at the hearing, in the matters affecting employees' seniority the Union's business agent steps in and "decides the difference between right and wrong." By thus surren- dering to the Union the right to determine seniority-at least in situa- tions not covered by section 8 of the contract-the Company, under the principle of Pacific Intermountain Express,' discriminated against Lopuch in violation of 8 (a) (3) and (1) of the Act and the Union caused the Company to engage in such discrimination in violation of Section 8(b) (2) and (1) (A) of the Act. THE REMEDY The Trial Examiner recommended, among other provisions, that the Respondent Company and the Respondent Union jointly and sev erally make Michael Lopuch whole for any loss of pay he may have suffered by reason of the discrimination against him. We adopt this recommendation. However, we further provide that the Respondent Union may terminate its liability for the further accrual of backpay by notifying the Respondent Company, in writing, that the Respond- ent Union has no objection to the restoration of Michael Lopuch to his former position on the drivers' seniority roster or to such other position to which he may be entitled. The Respondent Union shall not thereafter be liable for any backpay accruing after 5 days from the giving of such notice. 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 : A. Respondent Miranda Fuel Co., Inc., New York, New York, its officers, agents, successors, and assigns, shall: 8 Pacific Intermountain Empress Company, 107 NLRB 837, enfd. 228 F. 2d 170 (C.A. 8). 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Maintaining, performing, or giving effect to any arrangement or understanding with Respondent Union, Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which delegate to said Union exclusive control over the seniority status of the Company's employees. (b) Encouraging membership in, or activities on behalf of, the Respondent Union or any other labor organization of its employees, by refusing employment to any of its employees, or by reducing the seniority of any of its employees, pursuant to the request of the Union, or by discriminating against them in any other manner in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by Section 8(a) (3) of the Act. (c) In any like or related manner 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 organiza- tion 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) Restore Michael Lopuch to his former position of number 11 on the drivers' seniority roster or to such other position to which he may be entitled together with all the rights pertaining to that position. (b) Preserve and make available to the Board and its agents, upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back-pay due and the rights of employment and seniority under the terms of this Order. (c) Post at its premises at New York, New York, copies of the notice attached hereto marked "Appendix A." 4 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 Com- pany, be posted by the Company immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicu- ous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c) above, as soon as they are forwarded by the Regional IIn 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." MIRANDA FUEL CO., INC. 459 Director, copies of the Respondent Union's notice attached hereto marked "Appendix B." (e) Mail to the Regional Director for the Second Region signed copies of the notice attached hereto marked "Appendix A" for posting by Respondent Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, at its business offices and meeting halls, including all places where notices to members are customarily posted. 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 forthwith returned to the Regional Director for such posting. (f) 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. Respondent Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, repre- sentatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Maintaining, performing, or giving effect to any arrangement or understanding with the Miranda Fuel Co., Inc., which delegate to Respondent Union exclusive control over the seniority status of the Respondent Company's employees. (b) Causing or attempting to cause the Respondent Company to discriminate against Michael Lopuch, or any other employee, in vio- lation of Section 8 (a) (3) of the Act. (c) In any like or related manner, restraining or coercing employ- ees 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 em- ployment 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) Notify Michael Lopuch and the Respondent Company that it has no objection to the restoration of said Michael Lopuch to position number 11 on the company drivers' seniority roster, or to such other position to which the said Michael Lopuch may be entitled, together with the rights pertaining to that position. (b) Post at its business offices and meeting halls in New York, New York, 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 an authorized repre- sentative of the Respondent Union, be posted by it immediately upon 5In 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." 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receipt thereof and be maintained by it for 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) Post at the same places and under the same conditions as set forth in (b) above, as soon as they are forwarded by the Regional Director, copies of the Respondent Company's notice attached hereto marked "Appendix A." (d) Mail to the Regional Director for the Second Region signed copies of the notice attached hereto marked "Appendix B" for posting by Miranda Fuel Co., Inc., at its premises in New York, New York, in places where notices to employees are customarily posted. Copies -of the notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an authorized representative of the Respondent Union, be forthwith returned to the Regional Director for such posting. (e) 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. C. Respondent Miranda Fuel Co., Inc., its officers, agents, succes- sors, and assigns, and Respondent Local 553, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- -Ca, its officers, representatives, agents, successors, and assigns, shall Jointly and severally make Michael Lopuch whole for any loss of pay he may have suffered because of the discrimination against him in the manner set forth in "The Remedy" section of the Intermediate Report, as modified by "The Remedy" section of this Decision and Order. CHAIRMAN LEEDOM and MEMBER FANNING took no part in the con- -sideration of the above Decision and Order. 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 you that : WE WILL NOT maintain, perform, or give effect to any arrange- ment, or understanding with Local 553, International Brother- hood of 'Teamsters, Chauffeurs, Warehousemen and Helpers of America, which delegate to said Union exclusive control over the seniority status of our employees. MIRANDA FUEL CO., INC. 461 WE WILL NOT encourage membership in, or activities on behalf' of, said Local 553, or any other labor organization of our employ- ees, by refusing employment to any of our employees, or by reduc- ing the seniority of any of our employees pursuant to the request of the Union, or in any other manner discriminating against our employees in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent per- mitted by Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guar- anteed 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 in 'Section 8(a) (3) of the Act. WE WILL restore Michael Lopuch to his former position of number 11 on our drivers' seniority roster or to such other position to which he may be entitled together with all the rights pertaining to that position. WE WILL make whole Michael Lopuch for any loss of pay he may have suffered because of the discrimination against him. MIRANDA FUEL CO., 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 OF LOCAL 553, INTERNATIONAL BROTHERHOOD, OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA AND TO ALL EMPLOYEES OF MIRANDA FUEL Co., INC. 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 you that : WE WILL NOT maintain, perform, or give effect to any arrange- ment or understanding with Miranda Fuel Co., Inc., which dele- gate to us exclusive control over the seniority status of said Com- pany's employees. WE WILL NOT cause or attempt to cause said Company to dis- criminate against Michael Lopuch, or any other employee, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed by Section 7- 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. WVE WILL notify Michael Lopuch and said Company that we have no objection to the restoration of said Michael Lopuch to his former position of number 11 on said Company's drivers' seniority roster, or to such other position to which said Michael Lopuch may be entitled together with all the rights pertaining to that position. WVE WILL make whole said Michael Lopuch for any loss of pay he may have suffered because of the discrimination against him. LOCAL 553, INTERNATIONAL BROTHERHOOD 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 filed against the Company and the Union by Michael Lopuch, an individual, the General Counsel issued his consolidated complaint dated May 27, 1958, alleging that Miranda Fuel Co., Inc. (herein called the Company), and Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union), have engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (3) and Section 8(b) (1) (A) and (2) of the National Labor Relations Act, as. amended, 61 Stat. 136, herein called the Act. In substance, the consolidated complaint alleges that the Company and the Union have maintained in effect and enforced a collective-bargaining agreement which, inter alia, delegates to the Union control over the seniority of the Company's drivers and thereby over their employ- ment; and that pursuant to said agreement and because the Union demanded it, the Company dropped Charging Party Michael Lopuch from his regular position of number 11 on the drivers seniority list to position number 21, the bottom of said list, thereby causing Lopuch to lose opportunities for employment which his regular position on the seniority list would have provided him. The Respondents filed separate answers denying the commission of unfair labor practices. Pursuant to notice, a hearing was held before me in New York, New York, on November 3 and 5, 1958. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertaining to the issues. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE The Company is a New York corporation which has its principal office and place of business at 36 Canal Street West, Bronx, New York, where it is engaged in the business of the sale and distribution of coal, fuel oil, and related products. During the past year, in the operation of said business, the Company caused to be purchased, transferred, and delivered to its place of business in New York, materials valued MIRANDA FUEL CO., INC. 463 in excess of $2,000,000, of which, materials valued in excess of $1,000 ,000 were transported to said place of business directly from outside the State of New York. Upon these admitted facts, I find that the Company is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assume jurisdiction. II. THE LABOR ORGANIZATION INVOLVED Respondent Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The contract The Union has been the collective-bargaining representative of the Company's truckdrivers for many years and there have been successive collective-bargaining contracts between the Union and the Company covering the terms and conditions of -employment of said employees. The contract involved in this proceeding became effective January 1, 1956, and by its terms expired on December 31, 1957.1 Among other provisions , the contract between the Employer and the Union contains the following: Senior men shall be given the preference of day or night work.. Section 8. It is agreed by both parties that depot seniority shall prevail... . * * * * * * * It is further understood and agreed that during the dull season of the year, preference shall be given to the fuel oil chauffeurs on the seniority list, and that the Shop Steward shall be the No. 1 fuel chauffeur on the list. During the slack season, April 15 to October 15, any employee who according to seniority would not have steady employment shall be entitled to a leave of absence and maintain his full seniority rights during that period. Any man so described must report to the Shop Steward not later than 8 A. M. on October 15 and sign the seniority roster in order to protect his seniority, and the Employer agrees to accept the certification of said Shop Steward as to avail- ability of such men when called by the Employer. If October 15 falls on a Saturday or Sunday, the reporting day shall be the next work day. Any man failing to report as above specified shall forfeit seniority rights. The agreement also provided for the arbitration of all disputes regarding and meaning, interpretation, or application of any provision of the contract, and of all grievances between the parties which could not be adjusted by their respective representatives. B. The reduction in seniority of Michael Lopuch Charging Party Lopuch has been employed by the Company as a truckdriver for approximately 8 or 9 years. He was regarded by the Company as one of its "good employees." In April 1957, Lopuch requested and was granted permission by the Company to take a leave of absence from his job in order to take care of personal business in Cleveland, Ohio? Lopuch worked on April 12 and then went on leave. He thereafter traveled to Cleveland, Ohio, with his family. On or about October 10, Lopuch telephoned to Jerry Miranda, the Company's president, from Cleveland and told him that he contemplated returning to work on or before October 15. However, on or about October 14, Lopuch, while still in Cleveland, was prostrated by influenza and acute bronchitis, from which he did not recover until October 28 .3 Lopuch notified the Company that he was sick and would not be able to return to work until he recovered. On about October 19, Lopuch again spoke to Jerry Miranda by telephone and said that he would be back to work as soon as the doctor would release him. Miranda told Lopuch to return as soon as he could. On October 29, Lopuch drove back to New York and on October 30, he reported for work at the Company's premises. i General Counsel's Exhibit No. 3. 2 There is a conflict in the testimony of Lopuch and Jerry Miranda, the Company's president, in respect to whether the leave of absence was to commence at the close of business on April 12 or 15. I regard this conflict as immaterial since the record is clear that the Company granted the leave of absence as commencing with the close of business on April 12. See General Counsel's Exhibit No. 6. 3 General Counsel's Exhibit No. 8. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On his return, Lopuch was retained in his regular seniority spot which was number 11 on the list of 21 drivers. However, on the insistence of the Union, on about November 1, 1958, the Company reluctantly dropped Lopuch to the bottom of the seniority roster to position number 21. According to the uncontradicted testimony of the Company's president, Jerry Miranda, the Union originally de- manded that Lopuch be dropped to the bottom of the list because he had not reported to the shop steward on October 15. After Lopuch's illness was verified by contacting the doctor in Cleveland, the Union's delegate told Miranda that the late return of Lopuch was no longer an issue but that he must nevertheless be dropped to the bottom of the seniority list because he had gone on leave before April 15, the date referred to in section 8 of the contract as the commencement of the "slack season." There is no dispute in the record that the Company did not wish to reduce Lopuch in his seniority standing, but did so because of the Union's insistence thereon. As a result of his change in seniority, Lopuch has lost the opportunity to work on a number of Saturdays. C. Analysis of the evidence and concluding findings The uncontraverted testimony establishes that the Union, in demanding that Lopuch be reducell in seniority, relied on section 8 of the contract, at first because he had not reported to the shop steward and signed in on October 15, 1957, and thereafter, after his illness had been verified, because he had gone on leave of absence status before April 15, 1957. The Company, in reluctantly agreeing to comply with the Union's demand for Lopuch's demotion in seniority, likewise did so because it believed that the said contract provisions left it no alternative, even though the Company had granted Lopuch permission to go on leave status when he did. The consolidated complaint herein alleges that the said contract provisions delegate to the Union control over the seniority of the Company's truckdrivers, and thus over their employment opportunities. The said provisions in the contract are verbatim identical with the provisions which the Board found to be an unlawful delegation to the Union of control over seniority in the Meenan Oil case? Aside from the said provisions of the contract, the record of what transpired to Lopuch in this case, further discloses the degree of control over seniority, which the said contract provisions produced. Thus, despite the Company's resistance thereto and the specific leave of absence granted to Lopuch, the Union was able successfully to insist that Lopuch's demotion in seniority was required by the contract. Moreover, as shown above, the Union was able to dictate the grounds for the reduction in Lopuch's seniority standing, waiving the late return because of illness, but insisting on his demotion, nevertheless, because of his taking leave before April 15. The foregoing considerations persuade me that in practice, as well as by contract, the Company delegated control over seniority to the Union. Unlike the Union and the Company, I do not believe that the contract provisions, on which they relied in reducing Lopuch's seniority, were applicable to Lopuch's case. Thus, the record shows that the Company, because of successful city and State bids, had work available for Lopuch during the normally slow season between April 15 and October 15 .5 Lopuch's leave of absence was for personal reasons and was not based on the fact that because of his seniority, he would not have "steady employment" during the slack season, the situation to which section 8 of the contract addresses itself. Therefore, the Union's and the Company's application of these contract provisions to Lopuch's case, was, in my opinion, misplaced, but nevertheless, further demonstrates that both in language and in practice, the Company had relinquished control over seniority to the Union. Such a relinquish- ment of control over seniority and thus over employment, has been repeatedly held by the Board to encourage union membership in violation of Section 8(a)(1) and (3) and 8(b)(1)(A) and (2).6 Moreover, the reduction of Lopuch in seniority was, according to the uncontroverted testimony of Shop Steward Nance, based on the request of the other members of the Union employed by the Company. Lopuch's reduction in seniority, based on that request, was, therefore, clearly a discrimination in respect to Lopuch's hire, tenure, and other conditions of em- ployment which encourages union membership and adherence. * Meenan Oil Co., Inc., 121 NLRB 550. a Only two other company drivers were on leave status during the "slack season" of 1957. E Meenan Oil Co., Inc., supra; Pacific Intermountain Express Compnay, 107 NLRB 837; Kenosha Auto Transport Corporation, 113 NLRB 643; Kramer Bros. Freight Lines, Inc., 121 NLRB 1461; cf. The Radio Officers' Union, etc. v. N.L.R.B., 347 U.S. 17. MIRANDA FUEL CO., INC. 465 For the foregoing reasons, I conclude that by the November 1, 1957, discrimina- tory demotion of Lopuch on the drivers' seniority list, pursuant to the Union's de- mand in implementation of the unlawful seniority provisions of the contract, the Company thereby violated Section 8(a)(1) and (3) of the Act, and the Union violated Section 8(b) (1) (A) and (2).7 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of the Respondents set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, I shall recommend that each of them cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent Company having discriminated against Michael Lopuch at all times since November 1, 1957, I shall recommend that it immediately restore him either to the number 11 position on the drivers' seniority roster or to such higher position on the list to which he may be presently entitled if drivers of higher seniority have since terminated their employment with the Company, with all the rights attached to such position on the roster. Respondent Union having caused the Company to discriminate against Michael Lopuch, I shall recommend that it immediately notify the Company and Michael Lopuch that it has no objection to his restoration to the position on the drivers' seniority roster which I shall recommend as aforesaid, and to all the rights attached to such position on the roster. I shall also recommend that the Company and the Union, jointly and severally, make Lopuch whole for any loss of pay he may have suffered by reason of the discrimination against him, by pay- ment to him of a sum of money equal to that which he normally would have earned as wages had he been occupying his former position on the list, from November 1, 1957, to the date when, pursuant to the recommendations herein, the Company shall restore him to said position on the list, less his net earnings during said period, said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. As provided in the Woolworth case, 1 recommend further that Respondent Company make available to the Board upon request payroll and other records, in order to facilitate the checking of the amount of backpay due and the rights of employment under the terms of this Recommended Order. Since I have concluded that Respondents are giving effect to an agreement con- taining unlawful seniority provisions, I shall further recommend that they refrain from doing so in the future. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Miranda Fuel Co., Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of the Act. 3. The collective-bargaining agreement between the Company and the Union gives and delegates to the Union final control over the seniority status of the Company's driver employees. 7 The Union, relying on the Board's decision in St. Johnsbury Trucking Co., Inc., 120 NLRB 636, contends that the contract provisions involved herein do not give it control over seniority because the contract also contains provisions requiring arbitration of all disputes over the application or interpretation of the contract. I regard the St. Johnsbury case as Inapposite. In the St. Johnsbury case, the contract provided that the Employer prepared the seniority list, subject to the Union's approval. In this case, the contract provided that the shop steward of the Union prepared the seniority list, and the Employer agreed to accept it. Thus, in this case, unlike the St. Johnsbury case, the composition of the seniority list was not negotiable, and, therefore, arbitration would be meaningless. Moreover, the Union's contention herein was raised and rejected by the Board in the Meenan Oil case involving the identical contract. I therefore reject It here. 466 DECISIONS or,. NATIONAL LABOR RELATIONS BOARD 4. By performing and giving effect to said collective-bargaining agreement, the Company has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and has discriminated against employees in respect to their hire and tenure of employment and other terms and conditions of employment , and has thereby engaged in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. 5. By acquiescing in the Union's unilateral determination of the seniority status, of Michael Lopuch and in reducing his seniority position on the drivers' seniority roster, the Company has interfered with, restrained , and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, and has discriminated in respect to the hire and tenure of employment and other terms and conditions of employment of Michael Lopuch, and has thereby engaged in unfair labor practices. within the meaning of Section 8 (a) (1) and (3) of the Act. 6. By performing and giving effect to its collective-bargaining agreement with the Company containing the aforesaid unlawful seniority provisions, the Union has restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, and has caused or attempted to cause the Company to discriminate against employees in violation of Section 8(a)(3) of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the Act. 7. By demanding and causing the Company to reduce the seniority status of Michael Lopuch, the Union has restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, and has caused the Company to discriminate against an employee in violation of Section 8(a)(3) of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting, commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] The Tetrad Company, Inc. and International Union of Electri- cal, Radio and Machine Workers , AFL-CIO. Cases Nos. 9-CA- 5778 and 9-CA-6054. November 30, 1959 DECISION AND ORDER On July 17, 1958, Trial Examiner Louis Plost issued his Inter- mediate Report in this case, finding that the Respondent had not en- gaged in the violations of Section 8 (a) (1) and (3) of the Act alleged in the complaint and recommending dismissal of the complaint in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and Union filed exceptions to the Intermediate Report, and the General Counsel filed a supporting brief. The Respondent filed a brief in support of the Intermediate Report and Recommended Order. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. 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 Inter- 125 NLRB No. 61.