Kramer Brothers Freight Lines, Inc.

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kramer Brothers Freight Lines , Inc. and Costanzo Manes Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Costanzo Manes. Cases Nos. 4-CA-1887 and 4-CB-519. February 8, 1961 DECISION AND ORDER On March 16, 1960, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Company and the Respondent Union had engaged in and were engaging in certain unfair labor practices and recom- mending that they cease and desist therefrom and take certain affirm- ative action, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter the Respondent Union filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and finds merit in some of the Respondent Union's exceptions. Accordingly, the Board adopts only those findings, con- clusions, and recommendations of the Trial Examiner which are not inconsistent with this Decision and Order. We do not agree with the Trial Examiner that the Respondents violated Section 8(a) (1) and (3) and Section 8(b) (1) (A) and (2) of the Act, respectively, in connection with the layoff of company checker Costanzo Manes. For at least 14 years the Respondent Company has, under suc- cessive collective-bargaining agreements, recognized and dealt with the Respondent Union as the bargaining representative of its drivers, helpers, platform men, checkers, and motor lift truck operators at its Philadelphia, Pennsylvania, trucking operation. In 1947, the Company with the consent of the Union, established a new category of so-called "company checkers" outside of the coverage of the bar- gaining unit. The reason for this action was that the Company had experienced shortages in freight and desired to have a special group of checkers who were not precluded by their loyalty to their fellow employees and fellow union-members from concentrating exclusively on the interests of the Company. These company checkers were not obligated to, and in fact not expected to, join the Union, and never made any application for membership therein. Until January 1959, the Company operated under the so-called "crew method" in the loading and unloading of freight at its terminal. Under this method one man would load freight from incoming over- the-road trucks into a small truck, another would drive that small 130 NLRB No. 8. KRAMER BROTHERS FREIGHT LINES, INC. 37 truck into the terminal, another man would unload the freight in the terminal, and still another would check off the freight on the various company records. During the regular day shift the checking would be done by the company checkers who also functioned as "pushers" or "strawbosses" but were not permitted to do any manual work. On the other two shifts the checking was done by so-called "union checkers" who sometimes performed manual duties and the functions of the other crew members. In January 1959 the Company decided to change its operating procedure from the "crew method" to so-called "cart method." Under the new procedure the breakdown of the various loading and unload- ing tasks was to be eliminated and the employees of all classifications were to perform all the various tasks described above. The purely clerical classification of checker was to be eliminated, and all checkers were to perform manual duties as well. On February 2, 1959, the Company's terminal manager, Anastasi, so informed Manes and the other company checker. He told them that the new method would become effective on February 23; that they henceforth would have to physically handle freight like the other employees, and would have to join the Union. On February 17, 1959, the Company posted a notice to its employees listing the starting times for the employees designated to work during the week beginning February 23. The name of Manes and the other company checker appeared on that list of assignments. The names of seven employees in the bargaining unit were placed "on call," and did not receive immediate assignments as the new operating method required fewer employees. Shortly after the posting of this list which, except for the injection of the two company checkers, was based on the seniority of the em- ployees in the unit, the Respondent Union's steward advised Manager Anastasi that the Union's business agents would talk to him on Feb- ruary 20 to protest the inclusion of two company men in the unit and the Union's seniority list. On the appointed day the two business agents appeared and stated to company representatives that: It was their position that these men [Manes and the other com- pany checker] never handled freight, and that they were never a part of the bargaining unit and as such, have never built up seniority inside the Union and, therefore, we [the Company] could not just arbitrarily work them into the seniority list. In the course of the conversation the business agents also mentioned "that the men were rather up in years and they did not want to take any men in that were up in years that way." However, according to Manager Anastasi's uncontradicted and credible testimony, "the big- gest objection" of the Union was "that the men were actually clerical workers; that they were not members of the bargaining unit, and that 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they never built up any seniority." The question of their union mem- bership or nonmembership was not critical at that point. The busi- ness agents actually raised a grievance about this question of seniority. This grievance was to be taken to the Motor Transport Labor Rela- tions, Inc., and immediately after the conversation, Anastasi told the two company checkers about this development. On the same day, he took their names off the assignment list. Subsequently the grievance was taken up before the Motor Transport Labor Relations, Inc. It was resolved by the Company's agreeing to eliminate the company checkers from the seniority list. The company checkers were kept on paid leave for about 2 weeks, and after the termination of the leave, did not receive any further assignments. On these facts, the General Counsel contended that Charging Party Manes had been unlawfully excluded from the bargaining unit and was discharged because of his nonmembership in the Union. The Respondents contended that Manes was a clerical worker who had never been part of the bargaining unit because of his different inter- ests; that he therefore had never built up seniority in the bargaining unit; and that he had to be laid off for lack of seniority pursuant to the seniority provisions of the Respondents' collective-bargaining agreement. The Trial Examiner found that this case did not involve a question of seniority. He argued that the change from the crew method to the cart method transformed every employee of the Respondent Company into a "new employee" of equal standing, and that the Employer had the right to hire such new employees according to his own desires irrespective of seniority standing. He concluded that the objections of the Respondent Union to Manes could therefore not have been based on his lack of seniority but that this issue was merely a pretext covering the Union's real motive of depriving Manes of a job because of his nonmembership in the Union. In the alternative the Trial Examiner further found that even if the case was one revolving around lack of seniority in the bargaining unit, Manes, in 1947, was improperly excluded from the bargaining unit because of the agree- ment of the Respondents that he should not join the Union, and that he thereby was unlawfully deprived of the opportunity to acquire senior- ity like the other employees. We find no merit in the Trial Examiner's primary rationale. The Respondents' collective-bargaining agreement contained the following contract provision respecting seniority : When it becomes necessary to reduce the working force, the last man on the seniority list in his classification shall be laid off first and when the force is again increased, the men are to be recalled to work in the reverse order in which they were laid off. KRAMER BROTHERS FREIGHT LINES, INC. 39 Thus, the seniority rights of the employees in the bargaining unit arose ex contractu. If the collective-bargaining contract was still in effect when the assignment list was posted on February 17, the senior- ity rights of the employees were also vital, and the Respondent Union had not only the right, but, as the collective-bargaining representative of the employees, even the duty to demand that the Respondent Com- pany give effect to the seniority provisions.' The inclusion of the names of the company checkers on the assignment list was clearly in contravention of this contractual provision. The Trial Examiner's finding that the Respondent Union's remonstrance to the Company against the inclusion of the company checkers was only a pretext, could, in the light of the testimony of Anastasi to the contrary, be justified only on the theory that the change in the method of opera- tions entailed a destruction of the unit and an automatic end to the collective-bargaining agreement. We are unable to reach such conclusion. The Trial Examiner relies on article XXIX, section 1, of the con- tract which gives the Company the right to operate its business in the most efficient way. This clause, however, carries with it the proviso "that nothing herein will permit any operator to violate any of the terms and conditions of this agreement." The argument that a change in operations for the purpose of obtaining higher efficiency permitted the Respondent Company to disregard all other contractual provi- sions, including the seniority clause, is clearly untenable in the light of this proviso. Moreover, article VI, section 4, of the parties' contract contains specific provisions dealing with material changes in opera- tions and providing for collective bargaining with the Union on new wage rates in such event.2 No such negotiations took place. The Respondents obviously considered the new cart method not to be in the nature of a major alteration, particularly since under article XX of the contract the Company could at all times require employees to work in more than one job classification during their working hours of any day. We conclude therefore, contrary to the Trial Examiner, that the institution of the cart method had no impact on the continuing va- lidity of the contract and all its provisions, including the seniority clause, and that the employees in the bargaining unit did not become "new" employees but retained their seniority standing notwithstand- 1 See Standard Oil Company, 127 NLRB 223 ; Florida Power and Light Company, 126 NLRB 967 2Article VI, section 4, of the contract reads as follows In the event new types of operations are instituted, after the date of this agreement, which are not now in existence within the coverage of this agreement and which involve assignment to employees covered by this agreement of duties of a basically different nature or character than those performed by any operator at the time of this agreement, Union, 1fTLR, and Operator, agree to negotiate wage rates appropriate to such operations. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the change in the operational method. Therefore, we further conclude that the Respondent Union acted legitimately in defense of the seniority rights of the employees in the unit, and that the Re- spondent Company, abiding by its contract, lawfully removed the name of Manes and the other company checker from the assignment list. These actions did not constitute a pretext to cover up an unlaw- ful discharge demand on the part of the Respondent Union because of Manes' lack of union membership. We note in that connection that there is no evidence that Manes and the other company checker ever were turned down for union mem- bership or that they even at any time made an attempt to join the Union. The passing remark of one of the union representatives as to their age is insufficient to draw the inference that the Respondent Union had decided not to accept them into membership, and to cause their loss of employment for lack of such membership. We also find no merit in the Trial Examiner's alternative finding that the name of Manes was unlawfully removed from the seniority list as he was deprived of the opportunity to acquire seniority by the 1947 understanding of the Respondents excluding company checkers from the contractual unit. It is not necessary to decide here whether the 1947 oral agreement or understanding violated the rights of the company checkers. We believe that it suffices to state that the written agreement, valid on its face cannot be affected by events occurring about 13 years prior to the layoff of Manes. In the recent Bryan Manufacturing 3 case, the United States Supreme Court made it clear that an unfair labor practice complaint cannot be solely predicated on the enforcement of a contract, lawful on its face, which was exe- cuted before the 6-month statute of limitations under Section 10(b) of the Act. We find that the Respondent Company and the Respondent Union did not violate Section 8(a) (1) and (3) and 8(b) (1) (A) and (2) of the Act, respectively, by abiding by the seniority provisions of their collective-bargaining agreement and by thereby depriving employee Manes of job assignments in favor of employees having accrued sen- iority in the contract unit. Accordingly we shall dismiss the consoli- dated complaints .4 [The Board dismissed the complaints.] 3 Local Lodge No. 1424 International Association of Machinists , et at. v N L.R.B., 362 U S. 411. * Although only the Respondent Union filed exceptions to the Intermediate Report, the entire case has been opened for Board consideration and disposition by the timely filing of the Respondent Union's exceptions. As the Union's exceptions raise substantially the same questions of fact and law as are raised in the proceeding involving the Respondent Com- pany, we shall dismiss the complaint against both the Union and the Company . Public Service Company of Colorado , 89 NLRB 418 , at footnote 4. KRAMER BROTHERS FREIGHT LINES, INC. 41 MEMBER RODGERS, dissenting : I do not agree with the decision of my colleagues to dismiss the complaints against the Respondents. Costanzo Manes was a checker in the employ of Respondent Em- ployer for about 12 years. During all this time Respondent Union and the Employer were parties to a collective-bargaining contract which specifically covered checkers and which contained a union- security clause. However, at the request of the Employer, who, for reasons not here material, wished to have two checkers who were not union members, the Union agreed that Manes and another checker would not have to join the Union. In addition to these two checkers who were thus not required to become members of the Union, the Em- ployer employed a number of checkers who were required to be mem- bers of the Union. The only difference between the duties of the checkers who were union members, and those who were not, was that the union members were permitted to handle freight when it appeared necessary, whereas the nonunion members were not. In January 1960, the Employer, in order to operate with fewer full-time checkers, decided that thereafter all checkers would be re- quired to handle freight. Consequently, the Employer decided to make work assignments for all checkers, including Manes, according to total years of service. Under this plan, Manes' 12 years of service entitled him to a regular job. The seniority of the other nonunion checker also entitled him to a regular job. This resulted in reduction to an "extra," or irregular "on-call," assignment for two checkers who had been members of the Union, but who had less service with the Company. The Union, however, protested to the Employer concern- ing the retention of Manes, on the ground he had never been part of the unit, had never handled freight, and had never built up seniority "inside the Union." The union representatives also stated that be- cause of Manes' age, the Union didn't want to grant him membership. My colleagues hinge their decision on the premise that Manes was not a member of the unit. But in my opinion, my colleagues have erred in finding that in 1947, at the time of Manes' hire, the parties established Manes in a new job category outside the unit. This find- ing accords to the arrangement concerning Manes' nonmembership in the Union far too much dignity. It is of course based on self-serving declarations of intent made some 13 years after the alleged event, at the hearing in this case, by co-Respondents interested in justifying their actions. These declarations, however, are belied by several fac- tors. During all the intervening years, the Respondents' contracts have referred to "checkers." Moreover, in practice the jobs of the so-called "union" and "nonunion" checkers were so similar as almost to defy distinction. Thus "union" checkers were not required to handle freight; at the most they were not forbidden to handle freight 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if the occasion arose. Further, the record indicates that such occa- sions arose infrequently and irregularly, if at all. All checkers, in- cluding Manes and his companion, were in fact paid the contract wage rates. It thus appears that the arrangement between the Employer and the Union really constituted no more than an agreement that cer- tain employees encompassed by the unit would not have to join the Union-an arrangement to which the Union consented in order to accommodate the Employer. Similarly, in attaching no weight to the comments of the union representatives concerning Manes' nonmembership in the Union, and their assertions to the effect that he was too old to join the Union, as "passing remarks," my colleagues have overlooked the fact that when Manes was replaced by a union member on the roster of employees with permanent assignments, he was not permitted even to remain on the "extra" list from which the union checker who replaced him had been taken. He was instead discharged outright, a treatment which did not appear warranted unless the Employer and the union repre- sentatives understood that the Union objected to Manes' retention in any capacity whatever because he was unacceptable as a union member. In short, I would find without merit the contention that Manes was subject to displacement by a union member because he was not in the unit, and that the Union, in objecting to retention of Manes in the employ of the Employer, had at best a dual motive which included objections to Manes' nonmembership in the Union. MEMBER KIMBALL took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed by Costanzo Manes on March 11, 1959, the General Counsel of the National Labor Relations Board on September 2, 1959, issued a consolidated complaint against Kramer Brothers Freight Lines, Inc., herein referred to as Respondent Company, and against Local 107, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as Respondent Union, alleging violations of Section 8(a)(1) and (3) and 8 (b)(1)(A) and (2), respectively, of the National Labor Relations Act, as amended (61 Stat. 116), herein called the Act. In their respective duly filed answers Respondents, while admitting certain allegations of the complaint , denied the commission of any unfair labor practice. Pursuant to notice, a hearing was held before Thomas F. Maher, the duly desig- nated Trial Examiner, at Philadelphia , Pennsylvania, on November 9 and 10, 1959. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument , and to file briefs. Parties waived oral argument at the hearing and in lieu thereof the General Counsel and Respondent Union filed briefs with me thereafter. Upon consideration of the entire record and the briefs of the parties, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Kramer Brothers Freight Lines , Inc., is a Michigan corporation engaged as a common carrier in the motor transport of freight throughout the several States KRAMER BROTHERS FREIGHT LINES, INC. 43 of the United States, including the Commonwealth of Pennsylvania, wherein it maintains and operates terminals, including a terminal in Philadelphia . It receives in excess of $100,000 annually for services performed in transporting goods in interstate commerce. The parties concede that Respondent Company is engaged in interstate commerce within the meaning of the Act, and I so find. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES Whether Respondent Union, by its effective protest, caused Respondent Company to discriminate against Costanzo Manes by relieving him of his work assignment within 30 days of said assignment because of his nonmembership in the Union. Whether the reasons advanced by Respondents Union and Company for Manes' removal from his work assignment were pretexts to conceal an intent to discriminate against him because of his nonmembership in the Union. Whether parties to a collective agreement may, in delineating the scope of the bargaining unit covered by such an agreement, establish as an element in a specific job classification membership or nonmembership in a union. IV. THE UNFAIR LABOR PRACTICES 1 A. Introduction The loading and unloading techniques employed at Respondent Company's Phila- delphia terminal are significant to an understanding of the facts involved and the issues to be disposed of. Accordingly, I shall detail briefly the methods utilized and the relationship they bear to the misfortunes of the Charging Party, employee Costanzo Manes. 1. The "gang" method Prior to 1959 the trucks arriving and leaving the terminal , the bulk of them between the hours of 8 a.m . and 6 p.m., were loaded or unloaded by gangs. Upon the arrival of a truck certain dockmen would hand out the cargo, others would stack it on trucks or "dollies," and still others would cart the cargo to a predeter- mined spot . In the loading of trucks , these same operations were performed in reverse order. All of the duties were, of course , interchangeable and one individual would frequently perform several of the operations. Another member of the "gang" described above, the "checker," would physically check the cargo as it was loaded or unloaded and would record the items and quantities on the appropriate bills of lading. Checkers did not routinely handle freight but confined themselves to the clerical duties on the dock. It had been a practice of the trucking industry , adhered to by Kramer Brothers, to employ at least one checker who would be designated as a "company checker." Unlike the other dock employees of the Company this individual was not a union member. Respondent Company's divisional general manager , William B. Lutz, supplied the basic reason why the services of such an employee was required when he stated that they "wanted someone who did not have a dual allegiance, who would not have a dual responsibility ; someone, shall we say, who would get out and do the job, get these trucks unloaded , check the freight properly. ... " Lutz' basis for this judgment being "that one of the prerequisites of a union member is his loyalty to his union first, to his brothers, next, and to his company last." The company checker's duties did differ from those of the so-called union checker. Whereas a union checker was assigned to checking duties on late and early shifts, the company checker usually worked the day shift , the period during which the bulk of the loading and unloading occurred . Furthermore, while union checkers were permitted to physically handle freight when necessary , to drive trucks , and to operate forklifts , the company checker was forbidden to perform these functions, his duties being confined to "pen and pencil checking." One final attribute of the company checker's classification was that he functioned as a "pusher" or "strawboss" over the other men assigned to the loading crew The union checker did not appear to have this assignment . In the instant case the fact 1 The findings herein are , unless otherwise specifically noted, based upon the credited testimony of Respondent Company 's terminal manager, Anthony Anastasi ; its divisional general manager, William B Lutz ; John H. Matthews , the secretary of Motor Transport Labor Relations , Inc. ; and employee Costanzo Manes. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of this assignment was advanced in support of the contention of both Respondents that the company checker, in this instance, Costanzo Manes, was a supervisor and therefore not entitled to the protections of the Act. With specific reference to the job, as held by Manes, it is clear from the testimony of the management officials that the company checker had no authority to either hire or discharge employees, nor did he ever have occasion to recommend, effectively or otherwise, such action. His job did, in fact, include the duties of a "pusher." He saw that the men were kept busy. He did not, however, possess any inde- pendence of judgment in the issuance of orders and directions. Such orders as he gave were in the form of relating to the dockhands instructions given him by the dispatcher who was the overall, supervisor of the terminal loading dock and the checkers' immediate supervisor:, The record further discloses that a normal day- shift complement of dock terminal employees was: the dispatcher, two company checkers, and an unloading gang of six. To constitute these checkers as supervisors would provide a supervisory ratio of 1 to 2. Upon the basis of all of the foregoing considerations, I find that the company checker at the Kramer Brothers Phila- delphia terminal, in the person of Costanzo Manes, was not a supervisor as defined by Section 2 (11) of the Act.2 2. The "cart" method Under a recently adopted unloading or "stripping" system the "gang" method was abolished and in its place was established an arrangement whereby one man performed all the operations in the unloading of a given truck, including his own checking. Thus he would transfer the items of cargo to a truck or cart and carry them to a predetermined place. As he effected this transfer he would, at the same time, record the items and quantities on the appropriate bill of lading. That ad- vantage of such a system, it appears, is that full responsibility for the condition and completeness of the cargo rests upon one known individual rather than upon several unidentified handlers and one checker. As a result of the institution of the "cart" system of loading and unloading, making each man his own checker, the services of the checker, as such (whether he be a company checker or union checker), became unnecessary. B. The facts Early in 1959 Kramer Brothers converted its operations at the Philadelphia ter- minal from the "gang" method to the "cart" method. As an incident of this con- version the Company's officials, Divisional General Manager Lutz and Terminal Manager Anthony Anastasi, on or about February 2, 1959, summoned the two company checkers, Manes and Coe,3 to the office, informed them of the institution 2 See United States Gypsum Company, 119 NLRB 1415, 1418, wherein car checkers with duties substantially identical to those of the company checkers herein were found not to be supervisors because their direction of other employees was routine in nature and followed closely upon the schedules and orders of their supervisors ; and Murray Ohio Manufacturing Co., 118 NLRB 1027, 1029, wherein shipping and receiving checkers with duties substantially similar to the instant ones were held to not he supervisors. In the following earlier cases checkers were excluded from respective bargaining unit for the reasons indicated : United States Gypsum Company, 114 NLRB 1285 (supervisory : the car checker made effective recommendations concerning promotion and.discharge) United States Gypsum Company, 116 NLRB 656, 658 (supervisory : the checker was in complete charge of the yard and had authority to effectively recommend personnel action) ; White Provision Company, 116 NLRB 1552, 1554 (dock checkers were excluded only because of bargaining history, and were specifically found to be neither supervisors nor managerial employees). As these foregoing cases were decided upon facts and cir- cumstances not present herein I do not deem them applicable to this determination. See infra, footnote 13, for a further discussion of Manes' employee status. The following colloquy appears in the record with respect to Coe : Mr. LEYDEN (Respondent Company's counsel) : May I ask you, Mr. Levine, before questioning this witness, can we stipulate this Glen Coe, who has been referred to, is a supervisor? Mr. LevINE : I don't know. If your man will say he is a supervisor, I don't have any knowledge to the contrary Mr. LCYDEN : You would not stipulate then'? Mr MARKOWITZ, All right. (Footnote continued on following page.) KRAMER BROTHERS FREIGHT LINES, INC. 45 of the new system, and told them that as a result of the change of operations their jobs as checkers would be abolished as of February 23. During the course of this conversation Manes was told that company checkers' jobs were being changed to the extent that they "would have to work," thus conforming Manes' new assignment to the newly established routine, whereby each member of the unloading crew would be responsible for his own checking. Employee Manes went to work in 1947 for Kramer Brothers as a checker and has not since held any other job in the organization. He was always listed as a checker, and his duties were to check freight as it came off and was sent into trucks. During this period he never handled freight nor did he ever belong to the Union. The four checkers on the other shifts did handle freight and belonged to the Union. On or about February 17, 2 weeks following the notice to Manes that his job was to be changed, and a week before the changeover to the new system, Terminal Manager Anastasi posted on the company bulletin board a list of the job assignments to become effective on February 23, the date upon which the "cart" system was to take effect. Included on the list was Costanzo Manes who was scheduled to work on the shift which commenced at 9:30 a.m. Thereafter, on Friday, February 20, two business agents of the Union, Baker and O'Lear, appeared at Anastasi's office and protested to him the inclusion on the work schedule the names of Manes, and the other company checker, Coe. "It was their position that these men (Manes and Coe) never handled freight, and were never part of the bargaining unit, and as such, they never built up seniority inside the Union, and therefore [the Company] could not, just arbitrarily, work them into the seniority list." The union representatives further indicated that Manes and Coe "were rather up in years and they did not want to take any men in that were up in years that way." Whereupon Terminal Manager Anastasi summoned Manes and reviewed with him the Union's position with respect to his continued employ- ment on the new schedule. He explained that the matter was still open and that two checkers involved would know better how they stood after a meeting scheduled for the following Tuesday at the Motor Transport office, between company and union representatives. Both checkers were then told that as their jobs had been abolished and their seniority status questioned, their names were being struck from the assign- ment list, they were being laid off, and, because of the uncertainty of the final decision, they could apply the period of layoff, for the first 3 weeks, against their vacation. Manes has not worked for Kramer Brothers since his February 20 layoff.4 C. The Resp'ondents' contentions It is the Respondent Union's position, subscribed to by Respondent Company, that because employee Manes was not, as a company checker, covered by the con- tract between Kramer Brothers and Local 107,5 he was not a part of the collective- TRIAL EXAMINER • It is not all right. If you people would stipulate, it will save a lot of proof. I am not going to insist, but it would facilitate the record. Is anybody going to object that Mr Coe is not a supervisor 9 Mr LEvINE • If there is going to be a witness who will testify that he is, I have nothing to the contrary TRIAL ExAniINER You would stipulate that if the witness testified that he was a supervisor, that lie would be a supervisor within the meaning of the Acts Mr. LEvINE • I would so stipulate The foregoing stipulation constitutes a conclusion that I find to be unsupported by the record herein Upon the credited testimony of employee Manes and Respondent Com- pany's officials, Coe's duties and authority appear to be identical to Manes Because Coe's duties and status were never fully developed in the record and because reference to him In this case is merely incidental and has no hearing upon any issue litigated, I deem the stipulation as to his legal status to be extraneous to the case even if substantiated by the evidence presented Consistent with my holding above, I shall include hereafter in my finding of facto only such references to Coe, as an employee, as I consider necessary for a proper exposition of the facts and details at issue 4 Because Coe has never been a party to these proceedings his affairs and fortunes will not, for obvious reasons, be recorded in any detail Cf footnote 3, supra 'In thus identifying the contract I am fully cognizant that the contract is, in fact, a piaster agreement between Motor Transport Labor Relations, Inc , and a number of labor orirnnizations including Respondent Union, Local 107 As the agreement was executed by MTLR "for and on behalf of" Kramer Brothers Freight Lines, Inc , as well as numerous other operators, and by Local 107, as well as other affiliated labor organizations, I deem 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining unit recognized by the contract, and, accordingly, because he had accrued no seniority during his 12 years of employment, he could not now be included as a member of the bargaining unit in competition with employees who had accrued the required seniority and were already assigned a job. A thorough review of the position which the Respondents took during the hearing, and thereafter in Re- spondent Union's brief to me, accentuates to the exclusion of any other argument the basic reliance upon the contract and upon the scope of the unit. In support of its basic proposition Respondent Union does advance one conten- tion that places in focus the issue raised by the General Counsel's complaint. Thus at one point in its brief the Union contends that Manes' "termination had nothing whatever to do with his union membership or lack thereof." In this respect certain provisions of the current collective agreement concerning the requirement of union membership are significant. By article I of the agreement coverage is provided "all drivers, helpers, platform men, checkers, and motor lift truck operators," and by article II, section 2, of the agreement these employees are required to be members of the Union or to become members within the statutory period following their employment or the effective date of the agreement, as the case may be. Upon credited testimony at the hearing, only employees who handle freight physically are included in the classification of checkers covered by the contract and of whom union membership was required.6 Furthermore, it is conceded that those checkers who do not handle freight physically, or as part of their normal duties (in this case, Manes) were not, and have never been, part of the collective-bargaining unit. Respondent Union, in fact, relates these several propositions to Manes' predicament by stating that he "never performed any of the duties falling within the scope of the collective bargaining contract-he never handled freight, or drove a truck or a forklift." Upon the sum of the foregoing Respondents contend that the General Counsel has failed to show that Manes was deprived of his newly assigned job, or his seniority, for reasons of nonmembership in the Union. To support their action with respect to Manes the parties are relying simply upon the terms of a legitimate collective agreement which, they claim, properly delineates the scope of the bargaining unit to the exclusion of Manes' previous job classification, and properly restricts the acquisition of seniority to prior service within the unit itself. D. Analysis and conclusion This is not, as Respondents insist, a question of seniority. Respondents' conten- tions go, actually, to the right of an employer unilaterally to increase the size of, or permit an accretion to, an existing bargaining unit when he has not theretofore agreed to delimit his prerogatives in such respects. That Respondent Company retained the right to alter its operations is clear from a reading of its agreement with the Union. Thus article 6, section 4, of the agree- ment, by providing for certain wage renegotiations "in the event new types of operations are instituted" during the term of the agreement, implicitly indicates that unit changes are within the purview of the agreement. As nothing otherwise appears in the agreement which would yield to the Union any function in effecting these changes, it follows that instituting the "cart" system remained the Company's prerogative 7 Accordingly, when Costanzo Manes was told of the new system and the requirement that under it he "would have to work," and when his name was this contract, for the purposes of the issues presented herein, to be one between the parties to this proceeding Insofar as the contract applies to other employers, or their employees, and to other labor organizations, and their members, I do not deem it to be in any manner relevant to this case In this respect, therefore, I reaffirm the ruling which I made at the hearing in which I limited the relevance of the contract, General Counsel's Exhibit No 2, to the parties before me in this case, and to no one else 6 The credited testimony of Terminal Manager Anastasi; Matthews, the secretary of the MTLR, and Cohen, Respondent Union's secretary-treasurer. 7 Article 29, section 1, of the agreement reads as follows : UNION recognizes that the OPERATORS covered by this Agreement must compete with other means of transportation, must keep abreast of development in methods of distribution, and must operate efficiently and economically if they are to be able to meet rising costs of operations, including rates of pay and working conditions to members of UNION Accordingly, UNION agrees that it cooperate with each OPERATOR to the end that his business may be operated efficiently and further agrees that it will not interfere in any way with each OPERATOR'S right to operate its or his business, provided that nothing herein will permit any OPERATOR to violate any of the terms and conditions of this Agreement. KRAMER BROTHERS FREIGHT LINES, INC. 47 thereafter placed on the assignment scheduled as an employee working under the new system, the Company had, in effect, created a new job within the Union (as article 6, section 4, would not preclude) and had hired a new man into the unit to fill the job. That Manes' job was a new one cannot be seriously questioned. Under the new system all the jobs were new, by comparison with previously assigned duties. Most men would be checking for the first time, others would be "handing out" cargo for the first time, and still others would be loading and pushing carts for the first time. Each man's job would be a composite of all the previously assigned duties, and has responsibility for the loading or unloading of the particular trailer assigned him would be a responsibility he never had before. What Respondent Union actually complains of, then, is not the changing of a system or the setting up of another job. It is the hiring for that job of an employee who was not then a union member In this respect I have found as a fact (supra) that the union agents, Baker and O'Lear, grounded their protest of Manes' assign- ment to one of the newly created jobs in the unit upon the fact that he "never built up seniority inside the Union." Manes' removal from this assignment, therefore, initiated as it concededly was by this protest, was for a reason related to union membership 8 There is in the record the credited and undenied testimony of employee Manes that Terminal Manager Anastasi told him at the time of his layoff that the Company would take him back, "If I belonged in the Union " In corroboration of Manes' testimony the following colloquy in the direct examination of Anastasi established Respondent Company's conditioning of further employment upon membership: Q. (By Mr. LEVINE.) What I am trying to find out, Mr. Anastasi, is whether or not their continued employment for you had something to do with their being permitted to go into the Union A Yes, they would have to join the Union before they could be permitted to handle any of the freight Q. And if they were permitted to join the Union, they could continue work- ing for you? A. If the Union .. . yes.9 Furthermore, lest it be inferred that the foregoing evidence implicates only the Respondent Employer, there is in the record the credited testimony of Terminal Manager Anastasi that not only did the Union, by its agents Baker and O'Lear object to the inclusion of nonmember Manes on the assignment list but "they claimed that the men (Manes) were rather up in years and they (the Union) didn't want to take any men in that were up in years that way." Thus it is evident that Manes was out of the Union not merely because he was not required to belong but indeed because the Union would not have him, had he wanted to belong. It is clear to me, therefore, that Respondents' reliance upon such considerations as seniority, unit composition, and contract coverage are but pretexts to obscure the real reason for the discrimination imposed upon Manes, and I so find. And in this connection the Respondent Union has not only ignored the requirements of Section 8(a)(3) of the Act which would have given Manes, as a new employee in the bar- gaining unit, 30 days within which to acquire union membership, but by its effective protest, it has violated its own agreement with the Company. Thus by the terms of article 2, section 2, Any OPERATOR may hire new employees from any source but agrees to give preference to satisfactory employees with experience in the trucking industry, in this area who are competent and qualified 10 But in addition, the Agreement, in the same section, requires membership in the. Union only by or upon the 31st day of an employee's employment Under the foregoing I have no alternative but to conclude that Manes' removal from the job in unit to which he had been assigned by the Respondent Company was s Cf Radio Officers' Union, etc (A H Bull Steamship Company ) v A' L R B , 347 U S 17, Daugherty Company , Inc, 112 NLRB 986 OA further illustration of Anastasi 's understanding of the situation Q [Cross-examination by Mr Leyden , company counsel ] Iii answer to fir Levine 's question I thought I heard you say "if these men had joined the Union after February 23, there was work for them A Yes That is correct iu No one questions Manes' competence or qualifications . See footnote 12, infra 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the reason that he was not a member of the Union. As Section 8(a)(3) of the Act specifically proscribes such a term and condition of employment and grants employees a grace period of 30 days within which to join the Union I find that Respondent Company, by relieving Manes of his assignment upon the protest of the Union, discriminated against him in violation of Section 8(a)(3) of the Act and has interfered with, restrained, and coerced him in the exercise of his statutory rights in violation of Section 8(a)(1). As the Respondent Company's conduct was, in this respect, at the direct request of the Respondent Union I find that the latter Respondent has caused the discrimination against Manes and has thereby violated Section 8(b)(2) of the Act, and has thereby restrained and coerced him in the exercise of his statutory rights in violation of Section 8(b)(1)(A). Wholly apart from the foregoing considerations under which I have found both Respondents in violation of the Act I will assume for purposes of further discus- sion that Respondents' contentions respecting seniority are relevant, and I will make alternative, independent findings with respect thereto. I cannot subscribe to the processes of so-called "circular reasoning" by which Respondents seek to isolate Manes' nonunion status from his loss of employment. To say, as Respondents do, that Manes' lack of seniority stems only from the con- tract's failure to cover him, and from his resulting exclusion from the bargaining unit, begs the question. Indeed the very crux of the issue lies in the answer to the next question: Why was Manes not covered by the contract? I am not satisfied with Respondents' answer to this question for in my judgment it is only a partial one. Manes, they say, and so-called company checkers, generally, traditionally have never been covered by the contract. This, I submit, is a statement of fact, but not an answer. Credited testimony in the record, however, does supply the answer which Respondents would avoid. Thus it is clear that Manes, and com- pany checkers, generally, are not covered by the contract and therefore are not in the bargaining unit for a number of interrelated reasons which Respondents insist have nothing to do with the case. Among these reasons are: (1) the traditional practice of designating certain checkers as company checkers to eliminate the dual loyalty that would otherwise be imposed upon checkers; ii (2) the fact that company checkers, unlike checkers covered by the contract, do not physically handle freight; (3) the fact that only union members may physically handle freight; and (4) the fact that, under the contract, only union members may work in classifications covered by the contract. The sum of these reasons, I submit, leaves no doubt but that union membership is an absolute prerequisite not only for coverage under the contract but for employment in the bargaining unit. Because Manes did not possess union membership he was never eligible for em- ployment within the unit, for he was equally ineligible for contract coverage. As a consequence he was ineligible for seniority within that unit. It follows therefore that he was, and has been, deprived of his right to accrue seniority only incidentally be- cause of his exclusion from the contract and from the unit, but basically because he was not a member of the Union.iz To conclude as I do is not to gainsay a union's or an employer's right to control for whom they may contract and to establish a measure of union security consonant with the law. The Respondents here did more They made union membership the basic criterion for the company checkers' employment tenure.13 Thus was established "While I cite this as a reason for the classification of company checkers, based upon the credited testimony of General Manager Lutz (supra) I do not intend thereby to con- done any theory of management that would accept employee disloyalty as normal situation and would provide accommodation for it 12 This conclusion is not to say that at all times and in all situations union membership Could not be a prerequisite to achieving seniority Unlike the instant situation where Manes was excluded by mutual agreement of the Respondents from the contract, the unit, and the seniority roster because of his nonunion status, there ire cases where depart- mental or bargaining unit seniority may well be controlling and where employment in such a department or bargaining unit carries with it by mutual agreement the maximum union security permitted by statute In such cases the exclusion is based, not, as here, upon union membership, but upon the character of the work performed 1a Testimony concerning checkers, TRIAL EXAMINER: You indicated the two non-union checkers were affected by the changing of operations, to wit, Mr Coe and Mr Manes Would you tell me what is the difference between a non-union ch"cker and a union checker 1 (Footnote continued on following page.) KRAMER BROTHERS FREIGHT LINES, INC. 49 a job classification 14 in which the inherent qualification was not merely the dis- couragement of union membership but indeed the outright prohibition of it. By such an employment arrangement, based as it was only upon nonmembership in the Union, Manes was effectively foreclosed from contract coverage, from conclusion in the unit, and in consequence, from accumulating seniority in the unit, that would have permitted his employment therein. Accordingly, when the Respondent Com- pany, at the Respondent Union's request, removed Manes' name from the February 20 assignment list I find that it did so for the reason that Manes did not have the requisite seniority simply because of his nonmembership in the Union. Such action taken as it was for reasons of nonmembership in the Union, constitutes discrimination by the employer, as well as interference, restraint, and coercion, in violation of Sec- tion 8(a) (3) and (1) of the Act. As it is clear in the record that the foregoing action was taken by Respondent Company at the request of the Respondent Union's agents, Baker and O'Lear, such conduct on the part of the Union constitutes the causing of the Respondent Employer to discriminate as it did against Employee Manes, thus vio- lating Section 8(b)(2) of the Act. And by the restraint and coercion inherent therein it violated Section 8(b) (1) (A). V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company set forth in section IV, above, occurring in connection with the operations of the Company described 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 of commerce. VI. THE REMEDY Having found that Respondent Local 107 and Respondent Kramer Brothers Freight Lines, Inc., have engaged in certain unfair labor practices, I will recommend that they cease and desist therefrom and take certain affirmative action designed to effec- tuate the policies of the Act. I shall also recommend that the Respondent Union and the Respondent Company jointly and severally make Costanzo Manes whole for any loss of pay he suffered by reason of the discrimination against him, said loss of pay to be computed on a quarterly basis in accordance with the formula adopted by the Board in F. W. Wool- worth Company, 90 NLRB 289. It is also recommended that the Company make available to the Board, upon request, payroll and other records to facilitate compu- tation of the amount of backpay due. Upon the foregoing findings of fact, and upon the entire record of the case, I make the following: CONCLUSIONS OF LAW 1. Kramer Brothers Freight Lines, Inc., is an employer within the meaning of Sec- tion 2(2) of the Act and is engaged in commerce within the meaning of section 2(6) and (7) of the Act. 2. Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. The WITNESS [Terminal Manager Anastasil : Well, a non-union checker is not supposed to handle any of the freight which is being loaded or unloaded He merely keeps a record of the count of the number of packages. TRIAL EXAMINER : Was Mr Manes, on your records, to your knowledge , suffering from any physical disabilities' The WITNESS. Not to my knowledge TRIAL EXAMINER: What, then, specifically is the reason they are not permitted to handle the freight' The WITNESS • Well, because we have an agreement with the Union that all men who handle freight had to belong to the Union. 14 In so concluding, I repeat my finding that Manes' job classification was neither super- visory nor managerial but, upon the credited evidence of Terminal Manager Anasta,, wag a job involving freight checking duties that differed from the other checkers' duties only to the extent that Manes was prohibited by virtue of his nonmembership in the Union from physically handling freight (Cf footnote 2, supra 597254-61--vol 130-5 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By discriminating in regard to the hire , tenure, terms, and conditions of employ- ment of Costanzo Manes to encourage or discourage membership in a labor organi- zation, the Company has engaged in unfair labor practices within the meaning of Section 8 (a)(3) and (1) of the Act. 4. By causing the Company to discriminate against Manes in violation of Section 8(a)(3) of the Act, Local 107 has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing Costanzo Manes in the exercise of rights guaranteed by Section 7 of the Act, Local 107 has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.) Alex Wasleff Building Maintenance Company and Warehouse and Mail Order Employees Union , Local 743, International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers of America. Cases Nos. 13-CA-3/93, 13-CA-3493-2, and 13-CA-3493-3. February 8, 1961 DECISION AND ORDER On September 8, 1960, Trial Examiner Owsley Vose issued his In- termediate Report in the above-entitled proceeding, 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, together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel [Members Rodgers, Jenkins, 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,' and 1 During the second day of hearing , Respondent requested certain pretrial affidavits of witnesses who had completed their testimony the previous day, and who had been excused by the Trial Examiner These witnesses were no longer present at the hearing , and the Trial Examiner sustained the objections of the General Counsel to the production of their affidavits We affirm the Trial Examiner's ruling, for the reasons stated in Walsh-Lumpkin Wholesale Draq Company, 129 NLRB 294, and deny Respondent 's request to strike the testimony of these witnesses from the record . We note that the affidavit of another wit- ness was timely requested by Respondent 's counsel the previous day during cross- examination , and was produced by the General Counsel. 2 Respondent's request for oral argument is denied , as the record, exceptions , and brief adequately present the issues and positions of the parties . We also deny Respondent's notion to reopen the record, as there is no showing that the evidence Respondent now wishes to offer was not available at the time of hearing . See Schott Metal Product. Company , 128 NLRB 415. 130 NLRB No. 12.