Anderson Express Ltd.

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Anderson Express Ltd. and James McCaffrey and Local Union 295, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 2-CA-6477. February 24, 1960 DECISION AND ORDER On September 16, 1959, Trial Examiner Louis Libbin issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 [Members Rodgers, Bean, and Fanning]. 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 Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner.' ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Anderson Express Ltd., New York, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Maintaining in effect, implementing, or renewing paragraphs (B), (C) and (D) of Section 6 of the agreement executed on October 8, 1958, with Local Union 295, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or from executing or maintaining in effect any agreement with the above- named or any other organiaztion containing union-security provisions not authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 'The Respondent's request for oral argument is denied as the record, the exceptions, and the brief, adequately present the positions of the parties. 126 NLRB No. 97. ANDERSON EXPRESS LTD. 799 (b) In any like or related manner interfering with, restraining, or coercing its employees or applicants for employment in the exercise of the right to self-organization, to form labor organizations, to join or assist Local Union 295, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right maybe 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, as modified by the Labor-Management Reporting and Disclosure Act of 1950. 2. 'Take the following affirmative action which the Board finds will effectuate the policies of the Act. ' (a) Reimburse all its employees and former employees for moneys illegally exacted from them in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." 2 (b) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to determine the amounts due under the terms of this Order. (c) Post at its place of business in New York, New York, copies of the notice attached hereto marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (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. 2 Halben Chemical Co., Inc., 124 NLRB 872. '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." APPENDIX 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 : 800 DECISIONS OF.'NATIONAL'LABOR RELATIONS BOARD WE WILL NOT maintain in effect, implement, or renew para- graphs (B), (C) and (D) of Section 6 of the agreement executed on October'8, 1958, with Local Union 295, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. WE WILL NOT enter into or maintain in effect any agreement with the above-named or any other labor organization which con- tains union-security provisions not authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees or applicants for employment in the exercise of the right to self-organization, to form labor or- ganizations, to join or assist Local Union 295, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of mutual aid and protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities 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, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL reimburse all our employees and former employees who were employed on and after September 1, 1958, for all initia- tion fees, dues or other moneys paid by them to the above-named Union as a condition of membership. All our employees are free to become, remain, or to refrain from becoming members in good standing of the above-named or of 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. ANDERSON ExPREss LTD., 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by James McCaffrey, an individual, the General Counsel of the National Labor Relations Board , by the Regional Director for the Second Region (New York, New York ), issued his complaint, dated April 29, 1959, against ANDERSON EXPRESS LTD. 801 Anderson Express Ltd., herein called the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that: (1) Respondent executed an invalid union-security agreement on October 8, 1958, effective from September 1, 1958, with Local Union 295, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union; (2) Respondent has maintained in effect and enforced said agreement since said date; ( 3) since on or about October 8, 1958, Respondent's employees have paid dues and initiation fees pursuant to the terms of said agreement; and (4) by the foregoing conduct Re- spondent has engaged , and is engaging, in unfair labor practices within the meaning of Section 8(a) (1) and (3) and Section 2(6) and (7) of the National-Labor Rela- tions Act, 61 Stat. 136, herein called the Act. In its duly filed answer, Respondent denies the unfair labor practice allegations. As affirmative defenses, the answer alleges (1) that prior to September 1, 1958, Respondent's employees were members of the Union under a collective-bargaining agreement then in force between the Union and the former employer of Respondent's employees; (2) on September 1, 1958, Respondent acquired the trucking activities of said former employer and, pursuant to the aforementioned agreement and in order to protect the rights of the employees under said agreement, executed the agreement alleged in the complaint which was similar to the agreement then in force between the Union and the former employer; (3) since on about October 8, 1958, Respondent has paid contribu- tions to the Union's Health & Welfare Fund and Pension Fund for the benefit of the employees covered by said agreement; and (4) if such agreement is invalid and violative of the Act, Respondent should be reimbursed for said contributions. Pursuant to due notice, a hearing was held on July 8, 1959, at New York, New York. The General Counsel and the Respondent were represented at the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. After the close of the hearing, the General Counsel and the Respondent filed briefs, which I have fully considered. During the course of the hearing I reserved ruling on Respondent's motion to dismiss the complaint on the alleged ground that the charge is insufficient to support the complaint issued by the General Counsel. The charge against the Respondent, filed on March 13, 1959, alleges that Respondent had engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by discharging James McCaffrey because of his union membership and activities and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by the foregoing conduct "and by other acts and conduct." On April 30, 1959, the Regional Director sent a letter to the Charging Party, with a copy to Respondent, in which he stated that he was refusing to issue a complaint with respect to the allegation of the discriminatory discharge of James McCaffrey because "it does not appear that there is sufficient evidence of violations to warrant further proceedings with respect to this allegation in the charge" but that "we are, however, processing the remaining allegations of the unfair labor practice charge and are issuing a complaint thereon." As previously noted, the complaint contains no allegation of discrimination against James McCaffrey, the Charging Party, but alleges a violation of Section 8(a)(1) and (3) of the Act only in the execution, maintenance, and enforcement of an unlawful union-security agree- ment and the payment by employees of dues and initiation fees pursuant to said agreement. Upon practically identical facts, the Board has held that "the general allegations in the charges support the inclusion in the complaint of the allegations pertaining to the unlawful contracts within the period commencing 6 months before the filing of the charges, as these allegations merely define more precisely conduct of the Respondent alleged in the charges to infringe rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) and (3)." Triboro Casting Corporation, 117 NLRB 775, 776-780, enfd. 251 F. 2d 959 (C.A. 2). Accordingly, I now deny Respondent's motion to dismiss the complaint.' Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a New York corporation with its principal office and place of business at New York International Airport in New York City, is engaged in the business of i See N L R B. v. Pant Melting Co , 360 U.S. 301, 307-308, as to the function of a charge in Board proceedings. 554461-60-vol. 12 6-5 2 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD providing and performing trucking and delivery services and related services. On September 1, 1958, Respondent began performing services for Air Express Interna- tional, Inc., an enterprise which derived in excess of $50 ,000 from transportation operations in interstate commerce during the year ending March 31 , 1959. During the 6 months preceding March 31, 1959, Respondent performed services, valued in excess of $25,000, for Air Express International, Inc. Upon the above-admitted facts, I find that Respondent is engaged in commerce within the meaning of the Act and that the Respondent's operations fall within the jurisdictional standards for the assertion of the Board 's jurisdiction. IT. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the record shows, and I find, that Local Union 295, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The only issues in this case are whether Respondent executed and maintained in effect an agreement containing illegal union-security provisions and has checked off dues and initiation fees pursuant to said agreement , in violation of Section 8(a)(1) and (3 ) of the Act. B. The undisputed facts The facts giving rise to the issue in this case are not in dispute. Prior to Sep- tember 1, 1958, Respondent had no collective-bargaining agreements with any union. On September 1, 1958, Respondent acquired the trucking activities of Air Express International and on that date hired the employees employed in such activities for Air Express International. Respondent had also agreed that it would execute a contract with the Union covering these employees "exactly similar to the one" which was in effect between the Union and Air Express International and under which these same employees were working for Air Express International. As previously stated, Respondent engaged in these new operations on September 1, 1958, with the men previously employed in such activities with Air Express International. On October 8, 1958, Respondent executed a collective-bargaining agreement with the Union, effective from September 1, 1958, through August 31, 1960, and has since maintained said agreement in effect. This agreement contains the following pertinent union-security provisions: SECTION 6. Union Security (B) The employer agrees to a Union Shop. (C) The superintendent or man in charge shall immediately, upon employ- ment, notify the job steward or the Union if there is no job steward of the employment of any man who, under this agreement, is required to be a member of the Union. Upon notice from the Union that any employee who has been employed for more than thirty (30) days has failed to tender the periodic dues and initiation fees uniformly required as a condition of requiring and retaining membership, the employer agrees to discharge such employees within seven (7) days after the receipt of a written notice from a properly authorized official of the Union. (D) The 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. (E) In the event of any change in the law during the term of this agreement the Employer agrees that the Union will be entitled to receive the maximum Union security which may be lawfully permissible. C. The illegal union-security provisions The General Counsel contends that these paragraphs contain provisions which exceed the permissible union-security limits prescribed in the proviso to Section 8(a) (3) of the Act and hence are unlawful . I agree. Employees are entitled, under Section 8(a)(3) of the Act, to a 30-day grace period from the date the agreement ANDERSON EXPRESS LTD. 803 actually became effective, which is the execution date of October 8, 1958, and not the retroactive effective date of September 1, 1958.2 As the 30-day grace period in paragraph (C) runs from the date of employment, it does not accord to nonunion members who were employees when the agreement was executed the required statutory grace period, and hence is unlawful.3 Moreover, since the agreement is made retroactive to September 1, 1958, this paragraph conditions the continued employment of those union members who were employed prior to October 8, 1958, the execution date of the agreement, upon the payment of union dues for the period during which there were no contractual obligations to pay dues to, or become a member of, the Union and hence is unlawful for this reason also. Indeed, under this clause, even employees hired after the execution date of the agreement could be required, as a condition of continued employment after 30 days, to pay dues for the first 30 days of their employment although they were not members of the Union during that period. Respondent contends in its brief that paragraph (D) is qualified by the require- ments of paragraph (C). However, the express language of paragraph (D) is directly the opposite, that is, that paragraphs (B) and (C) are subject to the provi- sions of paragraph (D). The provisions of paragraph (D) together with paragraph (B), require the Respondent to condition the hiring and retention of employees upon their membership in good standing in the Union without complying with the require- ments of the proviso of Section 8(a) (3) of the Act .4 I find that paragraphs (B), (C), and (D) of the agreement, together, create unlawful union-security provisions and that the illegality is not cured by the pur- ported savings clause contained in paragraph (D).5 I find, in accordance with long and well-established precedents, that by executing and maintaining in effect the agreement of October 8, 1958, containing the above unlawful provisions, Respondent has violated Section 8(a) (1) and (3) of the Act.6 D. Checkoff of union dues The Respondent stipulated that employees' union dues were checked off monthly and turned over to the Union by the Respondent, pursuant to the terms of the aforestated unlawful agreement. "The checking off of dues from employees covered by the unlawful union-security agreement which served to coerce such payments con- stituted discrimination in regard to an important condition of employment, i.e., wages." 7 Accordingly, I find that by such conduct Respondent further violated Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent set forth in section 1, 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 Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has violated Section 8(a)(1) and (3) of the Act by executing and maintaining in effect 'a contract containing illegal union-security provisions and by checking off employees' union dues pursuant to the terms of said 2 Associated Machines, The., 114 NLRB 390, 402-403, enfd. 239 F. 2d 858 (C.A. 6) ; Seaboard Terminal and Refrigeration Company, 114 NLRB 1391, 1393-1394; Tacoma Har- bor Lumber and Timber Co., 108 NLRB 912, 916. 8 Ibid; United Electrical, Radio and Machine Workers et at., 9'8 NLRB 664, 671; John B. Shriver, an Individual d/b/a John B. Shriver Company, 103 NLRB 23, 38 footnote 7. ' Crawford Clothcs, Inc., 123 NLRB 471. 6 N.L R B. v. Red Star Express Lines of Auburn, Inc., 196 F. 2d 78, 181 (C.A. 2) ; N L.R B. v. Gaynor News Company, Inc., 197 F. 2d 719, 724 (C.A. 2), affd. 347 U.S. 17; Gottfried Baking Co., Inc. et al. v. N.L.R.B., 210 F. 2d 772, 777, 780 (C.A. 2). $Although such conduct has also been held to violate Section 8(a)(2), I make no such finding because the complaint did not allege a violation of Section 8(a) (2). 1 Masters-Lake Success, Inc., 124 NLRB 580. 804 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD agreement, I will recommend that it cease and desist from giving effect to these unlawful provisions or to any extension or renewal thereof. By the unlawful provisions of the contract, the Respondent has unlawfully encouraged employees to join and maintain their membership in the Union in order to obtain and maintain employment, thereby inevitably coercing them into the pay- ment of initiation fees, union dues or other moneys. Under these circumstances, I find it appropriate and necessary in order adequately to remedy, and to expunge the coercive effect of, Respondent's unfair labor practices and to effectuate the policies of the Act, to recommend that Respondent refund to its employees and former employees who were employed on and after September 1, 1958, all initiation fees, dues, or other moneys paid by them to the Union pursuant to the unlawful union-security agreement as the price of their employment .8 The Respondent contends that it would be inequitable to apply this remedy 91 because the complaint contained no allegation that such conduct was also violative of Section 8(a) (2) of the Act and because the Union is not joined as a party Respondent. Failure to allege a violation of Section 8(a)-(2) is taken into considera- tion with respect to another aspect of the remedy. Thus, where, as here, no 8(a) (2). allegation appears in the complaint, the Board merely orders a Respondent to cease giving effect to the illegal union-security provisions; whereas in those cases where the complaint does contain such an allegation, the Board orders a Respondent to, cease giving effect to the entire contract. The Union cannot, under the statute, be joined as a Respondent where, as here, no charge has been filed against it. And neither the General Counsel nor the Board has any control over the filing of such a charge. The Board has therefore applied the Brown-Olds remedy against an employer, even in the absence of a charge against the labor organization which was. a party to the unlawful contract.10 Indeed, the only exception which the Board has made to the application of this remedy to a Respondent found to have entered into and maintained in effect an unlawful union-security agreement, is where the illegality stems solely from a failure to comply with the 9(f), (g), and (h) filling requirements of the Act." Nor is there any merit to Respondent's further contention at the oral argument that it should be credited with the sums which Respondent paid into the Union's Health, Welfare & Pension Funds on behalf of its employees pursuant to the terms of the agreement. Such payments constitute part of the wage structure,12 and are entitled to no different consideration than any wage increase accorded to the employ- ees by Respondent. 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. Anderson Express Ltd., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 295, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By executing and maintaining in effect an agreement with the above-named Union which contained union-security provisions not authorized in Section 8(a)(3) of the Act, and by checking off employees' dues pursuant to said agreement, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] s Crawford Clothes, Inc, 123 NLRB 471. 9 'Commonly referred to as the Brown-Olds remedy because it was first applied in United Association of Journeymen & Apprentices of Plumbing & Pipefltting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brownf-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 5'94, 597-602 10 See,' e g., Honolulu Star Bulletin, 123 NLRB 395 . n Ph,ladelphia Woodwork Company, 121 NLRB 1642. "See, e g , Inland Steel Company, 77 NLRB 1, affd. 170 F. 2d 24'7 (CA. 7), cert. denied 336 U S 960; W. W. Cross and Company, Inc. v. N L.R.B , 174 F. 2d 875 (C A. 1),