Lugood Trucking Service

740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Isadore Luft, d/b/a Lugood Trucking Service and Truck Drivers. Local Union No. 807, International Brotherhood of Teamsters,. Chauffeurs, Warehousemen & Helpers of America (Independ- ent) and Local 102, Cloak & Dress Drivers and Helpers Union, International Ladies Garment Workers Union , AFL-CIO, Party to the Contract. Case No. 2-CA-7301. February 28, 1961 DECISION AND ORDER On July 25, 1960, Trial Examiner C. W. Whittemore issued his Intermediate 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 Intermediate Report attached hereto. Thereafter, the Respondent, the Party to the Contract, herein called Local 102, and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 8 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Jenkins and Kimball]. 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 entire- record in this case, including the Intermediate Report, the exceptions, and the briefs, and finds merit in exceptions filed by Respondent and Local 102. The Trial Examiner found that Respondent violated the Act by entering into a union-security contract with Local 102 on January 6, 1960, at a time when that union was not the majority representative of Respondent's employees and by thereafter enforcing such contract. The General Counsel contends that Respondent also violated the Act on the aforementioned date because, without the consent of its em- ployees, it bound them to representation in a multiemployer unit. For many years, Local 102 has represented the employees of mem- bers of Master Truckmen of America, Inc., hereinafter called the Association. The contract in issue in this case was executed by Local 102 and the Association in 1959 and was made effective from June 1, 1959, to February 28,1961. Respondent joined the Association in 1946 and became bound by contracts between the Association and Local 102. Beginning in 1950, Respondent paid no dues to the Association because of business conditions and it paid none until January 1960. However, it was not expelled, nor did it resign, from the Association. During this period, it continued to make payments under the health and wel- 130 NLRB No. 89. LUGOOD TRUCKING SERVICE 741 -fare provisions of the Association's contracts with Local 102. In Jan- uary 1960, business conditions having improved, Respondent resumed -paying dues to the Association. At the same time, it filed an applica- tion for membership in the Association. There is uncontradicted tes- timony that the application form was executed so as to provide Re- spondent with an easy method for paying to the Association its dues arrearages.1 Where, in the application, Respondent was asked whether it was in a contractual relationship with any labor organi- zation, Respondent answered , "Yes. . . . Local 102 ILGWU," and where asked when such a contract was entered into and would expire, Respondent answered, "June 1, 1959 to February 28, 1961." At this time, Respondent was without knowledge that the Teamsters was trying to organize its plant. On these facts, and the record as a whole, we are not persuaded that Respondent has violated the Act as found by the Trial Examiner and alleged by the General Counsel. The burden in this case was on the -General Counsel to establish by a preponderance of the evidence the complaint's allegations that Respondent first became a party to the 1959 contract between Local 102 and the Association when its appli- cation for membership in the Association was filed and accepted in January 1960, as explained above. We do not find that he has sus- tained this burden. The evidence recited above, such as Respondent's becoming a member of the Association in 1946; its never having quit the Association, or been expelled therefrom, thereafter; its compli- ance with certain provisions of Association contracts with Local 102 prior to and including the most recent one; its arrangement with the Association in January 1960 for paying back dues, and its statement in January 1960, before ever learning of Teamster organizational efforts, that it was a party to an Association contract with Local 102- all indicate Respondent's continuing membership in the Association, and its continuing contractual relationship with Local 102 prior to 1960. Although, as reflected in the Intermediate Report, there is some evidence that Respondent first became a party to the current multi- employer union-security contract in January 1960, when a majority of its employees might not have desired representation by Local 102 in a multiemployer unit, as alleged in this case, we conclude that such evidence is insufficient to outweigh the contrary evidence set forth above, which establishes that at all times relevant to this proceeding Respondent has participated in multiemployer bargaining with Local 1 The Association's executive director testified that the new application form was exe- cuted to arrange a new monthly dues rate for Respondent elevating payments from $25 to $50 so that over a period of time the arrearages would be canceled out. The executive secretary was without authority to waive or arrange time payments on dues arrearages, and, absent approval of the new rate on the new application by the membership com- mittee, a cash settlement would have been required of Respondent. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 102. We accordingly conclude that the General Counsel has not sus- tained his burden of proof herein, and we shall dismiss the complaint. [The Board dismissed the complaint.] INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Rela- tions Board, and answers having been filed by the Respondent Employer and the Party to the Contract, a hearing involving allegations of unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, was held in New York, New York, on June 20 and 21, 1960, before the duly designated Trial Examiner. At the hearing all parties were represented and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs. The filing of briefs was waived by the parties. Counsel (except for the Charging Union) argued briefly. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Isadore Luft is an individual proprietor doing business under the name and style of Lugood Trucking Service. He maintains his principal office and place of busi- ness in the city of New York, New York, where he is engaged in the business of providing and performing trucking services and related services. During the year 1959, the Respondent derived an income of more than $50,000 from such operations, performed pursuant to contracts and arrangements with, and as agent for, various interstate common carriers, including Fast Service Shipping Terminals, operating between and among various States of the United States, and for various enterprises each of which annually ships goods produced and handled by it, valued at more than $50,000, out of the State where said enterprise is located. The Respondent concedes and it is here found that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Independent), and Local 102, Cloak & Dress Drivers and Helpers Union, International Ladies Garment Workers Union, AFL-CIO, are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues In substance, it is General Counsel's claim that Luft unlawfully discriminated in regard to the terms and conditions of his employees' employment by signing a union- shop contract with Local 102, and by forcing them to join this local, at a time when the local did not represent "an uncoerced majority" of such employees. It is also General Counsel's contention that such conduct unlawfully assisted Local 102 and interfered with, restrained, and coerced employees in the exercise of their lawful right to select their own bargaining representative. The Respondent and the Party to the Contract (Local 102) deny the allegations of unfair labor practices and as- sert, in effect, that the contract in issue was lawful. B. The relevant facts There is little or no dispute as to the following facts: 1. For about 20 years an employer organization known as Master Truckmen of America, Inc., has bargained for and on behalf of its member-employers in the garment industry with Local 102. LUGOOD TRUCKING SERVICE 743 2. The contract in issue in these proceedings was entered into in June 1959, to, expire in February 1961. The parties signatory were Local 102 and Master Truckmmen. 3. Luft joined Master Truckmen in 1946. He did not resign nor was he formally expelled. He ceased to pay dues to this organization, however, after 1950 and until. January 1960. An official of the Master Truckmen sent him bills for dues for several months after 1950, and then abandoned the effort. 4. There is no evidence that at any time after 1950, and until January 1960, did- Luft participate in any way as a member of Master Truckmen, and especially in the matter of ratifying periodical contracts and changes in contracts with Local 102. 5. There is no evidence that at any time since 1950, and until January 1960,. were Luft's drivers and helpers required to join Local 102 pursuant to terms of any contract. 6. On January 4, 1960, Luft signed an application for membership in Master Truckmen. Included among the provisions of this application were the following: The applicant further agrees that if accepted as a member it will be with the express understanding that the Association will represent the applicant in all contract negotiations with any drivers and helpers unions or locals affiliated with the International Ladies Garment Workers Union, and the applicant hereby authorizes the Master Truckmen of America, Inc., upon the acceptance of this application for membership, to represent the applicant, through its duly constituted officers and employees, in all contract negotiations with any labor unions or local affiliated with the International Ladies Garment Workers Union, as well as in all disputes or disagreements arising out of any contract entered into between the applicant and such unions. It is understood that this authorization for the Master Truckmen of Amer- ica, Inc., to represent the applicant as aforesaid, shall be limited exclusively to contract negotiations, labor relations and contract disputes or disagreements with local unions affiliated with the International Ladies Garment Workers Union. 7. Luft's application was approved on January 6, 1960, being signed by Master Truckmen's manager, L. Burman. 8. The Respondent's answer admits that "by virtue of such membership, (it) be-- came bound by the obligations . . . of a certain contract effective June 1, 1959, between Master Truckmen of America, Inc., for itself and for its members, and . Local 102." The answer further admits, and it is found, that the said con- tract required the covered employees to become and remain members of Local 102 "on and after the 30th day following the beginning of such employment." 9. At the time Master Truckmen accepted Luft's application, on January 6, there were at the most only two employees of some seven or eight then in his em- ployment who were members of Local 102. 10. Shortly after his application was accepted, Luft was approached by an agent of Local 102 and asked to tell his employees that they must join Local 102 or be dis- missed. Luft, as a witness, admitted that he so informed one or two of his drivers, and requested them to pass this word along to others. He also requested the Local's representative to come to the office to tell the employees himself. 11. The representative thereafter came to Luft's place of business, where the employer had told employees to await his coming. The representative told em- ployees that the contract with Local 102 now covered them, and that they must join or be discharged. It appears that some signed at once and that others did not. C. Conclusions The evidence amply supports General Counsel's claim that on January 6, 1960, when' Luft claims that he became bound by the contract, Local 102 did not represent a majority of his drivers and helpers, uncoerced or otherwise. The Respondent's claim that Luft in effect had been a member of Master Truck- men continuously since 1946 is patently without merit. He had ceased to pay dues after 1950, and there is no evidence that in any fashion had he participated in that Association's affairs from then until 1960. In any event, it is clear that neither he- nor his employees until January 1960 considered that the agreement of 1959 applied to them. To the Trial Examiner it appears that the principal facts are similar to those described in Adley Express Company, et al., 123 NLRB 1372, where the Board adopted the same Trial Examiner's findings that the Union was without authority to serve as the collective-bargaining representative and that an illegal union-shop contract was entered into. - 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner therefore concludes and finds that by adopting and entering into the above-described contract containing the union-security clause at a time when Local 102 was not the validly designated majority representative of his em- ployees, Luft gave substantial assistance and support to a labor organization and discriminated in regard to terms and conditions of employment to encourage mem- bership in a labor organization. By such conduct, by personally threatening his employees with dismissal, and by permitting a representative of Local 102 to do likewise, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES,UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent 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. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It will be recommended that the Respondent cease and desist from giving any force or effect to the above-described contract. However, nothing herein shall be construed as requiring the Respondent to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with such employees which it has estab- lished in the performance of this agreement. It will be further recommended that all recognition be withdrawn from Local 102 by this Respondent, as the representa- tive of any of its employees for the purposes of collective bargaining, unless and until the said labor organization shall have demonstrated its exclusive majority repre- sentative status pursuant to a Board-conducted election among the Respondent's -employees.' Upon the basis of the foregoing findings and conclusions of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 102, Cloak & Dress Drivers and Helpers Union, International Ladies Garment Workers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By recognizing the above-named labor organization as sole bargaining repre- sentative of the Respondent's driver and helper employees, and entering into a con- tract with said labor organization making membership therein an employment re- quirement, at a time when said labor organization did not enjoy majority status, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3), (2), and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] i Bernhard-Altmann Texas Corporation, 122 NLRB 1289. Shelly & Anderson Furniture Mfg. Co ., Inc. and Upholsterers Union Local No. 15-A, Upholsterers International Union of No. America, AFL-CIO. Cases Nos. 01-CA-3617 and 21-CA- 3860. February 28, 1961 DECISION AND ORDER On May 4, 1960, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the 130NLRB No. 86.