Warehouse & Mail Order Employees, Local 743

WAREHOUSE & MAIL ORDER EMPLOYEES, LOCAL 743 707 Warehouse and Mail Order Employees , Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Aetna Plywood and Veneer Company. Case No. 13-CP-414. January ,22, 1963 DECISION AND ORDER On August 31, 1962, Trial Examiner Horace A. Ruckel 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 attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief, and the General Counsel filed a brief in support of the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in the case, including the excep- tions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. MEMBER FANNING took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter was heard before Trial Examiner Horace A. Ruckel at Chicago, Illinois, on June 22, 1962. The complaint was issued on April 26, 1962, by the Regional Director for the Thirteenth Region, Chicago, Illinois, upon a charge filed on March 29, 1962, by Aetna Plywood and Veneer Company, herein called the Charging Party, or Aetna. The complaint alleges in substance that Warehouse and Mail Order Employees, Local 743, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called Respondent, has com- mitted unfair labor practices within the meaning of Section 8(b)(7)(B) and Sec- tion 2(6) and (7) of the National Labor Relations Act, as amended (29 U.S C. Sec. 151 et seq.), herein called the Act, by since March 6, 1962, picketing Aetna with an object of forcing it to recognize or bargain with Respondent as the collective- bargaining agent of Aetna's warehouse employees, and to force or require them to accept or select Respondent as their collective-bargaining representative, though Respondent is not certified as such representative, and though a valid representation election had been conducted within 12 months preceding such picketing Respond- ent's answer denies the commission of any unfair labor practices. 140 NLRB No. 78. 681-492-63-vol. 140-46 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties were represented at the hearing and have filed briefs . Upon considera- tion of the entire record and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. AETNA'S BUSINESS Aetna is an Illinois corporation with its principal office and place of business at Chicago, Illinois, where it is engaged in the sale and distribution of plywood and related wood products . During the year preceding the issuance of the complaint, Aetna, in the course of its operations , purchased materials outside the State of Illi- nois valued in excess of $100,000, and caused said materials to be shipped directly to its place of business at Chicago. The complaint alleges and Respondent's answer admits that Aetna is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Warehouse and Mail Order Employees, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , is a labor organiza- tion admitting employees of Aetna to membership. III. THE UNFAIR LABOR PRACTICES A. Background The facts are largely undisputed. In 1955, Aetna recognized Respondent as the collective-bargaining representative of Aetna's warehouse employees and the parties entered into a collective -bargaining agreement . By its terms the contract was to remain in effect until April 30, 1958, with a provision for automatic renewal for 1 year unless either party should serve notice of its desire to terminate or amend it. In March 1958, Respondent served such a notice on Aetna and negotiations between the parties began . In July 1958, Aetna had not agreed to all Respondent 's demands and Respondent called a strike of the warehouse employees and picketed Aetna 's place of business. On March 23, 1959, Aetna wrote a letter to each striking employee advising him that he was re- placed and discharged . On the same day, Aetna filed a petition with the Board seek- ing an election to determine whether Respondent represented a majority of the newly hired warehouse employees. The petition was docketed as Case No. 13-RM-447. On April 27 , 1959, Respondent filed a charge with the Board (Case No. 13-CA-3261) alleging that Aetna had refused to bargain and had illegally terminated the employment of the striking warehousemen .' While the issues raised in Case No. 13-CA-3261 were pending before a Trial Examiner of the Board, all picketing around Aetna's premises ceased. Respondent sent Aetna letters dated March 14 and 22, and May 20, 1960, to which Aetna made no reply .2 On or about March 22, 1960, however, Aetna verbally notified Respondent of its intention not to take back the strikers, and on the following day Respondent resumed its picketing with a sign bearing the following legend: Aetna Plywood Co. Refuses To Take Back Members of 743 Teamsters Union, International Brotherhood of Teamsters. Since March 6, 1962, Respondent has continued this picketing with picket signs bearing this legend. On February 16, 1961, the Board issued its Decision and Order in Case No. 13-CA-3261 (Aetna Plywood and Veneer Company, 130 NLRB 329) dismissing the complaint. In so doing the Board found that Aetna had neither bargained in bad faith with Respondent nor had it illegally terminated the striking warehousemen who had been lawfully replaced. On January 23, 1962, the Board's Decision and Order was affirmed by the United States Court of Appeals for the District of Co- lumbia on a Petition for Review filed by the Union (Warehousemen and Mail Order Employees, Local No. 743, et al v. N.L.R.B, 302 F. 2d 865. On March 3, 1961 , following the Board's Decision and Order referred to above, Respondent filed another charge with the Board (Case No. 13-CA-4111) alleging that Aetna had violated Section 8(a)(1) and (3) of the Act by hiring new em- 1 Because of the charge in Case No 13-CA-3261, the Board withheld the processing of the representation petition in Case No 13-RM-447, pending disposition of the issues raised in the former case 2 The letter of March 14 stated that the strike was terminated and this and the follow- ing letter declared that the strikers were offering themselves unconditionally for work WAREHOUSE & MAIL ORDER EMPLOYEES, LOCAL 743 709 ployees instead of the striking warehouse employees . This charge was dismissed by the Regional Director. On appeal by Respondent, the General Counsel of the Board, on February 23, 1962, sustained the dismissal of these charges noting that the Board and court of appeals , as stated above, had found that the strikers had been validly replaced and Aetna was under no obligation to reinstate them. On September 5, 1961, a hearing was held in Case No. 13-RM -447 in which both Respondent and Aetna fully participated . There the Union took the position that it represented the employees involved in the petition: Mr. RoSEN13LOOM : Yes, the union still claims to represent the employees involved in this petition. However, it is our position that no question concerning representation is pend- ing before the Board at this time. The Board on October 24, 1961, issued its Decision and Direction of Election (not published in NLRB volumes) and on November 14, 1961, an election was held. No votes were cast for Respondent . Eight votes were cast against it . There were nine challenged ballots. Respondent, thereupon, filed objections to the election and later filed with the Board exceptions to the Regional Director's report on objections and challenges. On March 6, 1962, the Board issued a Supplemental Decision and Certification of Results of Election in which it overruled Respondent 's objections to the election and found that a majority of Aetna's warehouse employees who par- ticipated in the election had not selected Respondent as their collective -bargaining agent. B. Conclusions It is not disputed that the strike which began in July 1958 followed unsuccessful contract negotiations initiated by Respondent and that it was economic in origin. Dur- ing the strike Aetna discharged and replaced the strikers . Respondent filed a charge in Case No. 13-CA-3261 alleging unfair labor practice discharges, failure to bargain, and the conversion of the strike into an unfair labor practice strike . The Board found these contentions without merit . While that case was pending, Respondent for a period of time suspended picketing. It resumed it on March 23, 1960, and has con- tinued to picket to the present time. Respondent's second charge alleging an unfair labor practice by Aetna in hiring new employees instead of the strikers, and posing the question of a discriminatory refusal to hire as distinguished from a discriminatory discharge, was dismissed. It was found that Aetna had validly replaced the strikers and was under no duty to reinstate them. When Respondent lost the election on November 14, 1961, it lost its right to rep- resent Aetna 's employees as a currently certified collective -bargaining representative. The issue here is whether Respondent's picketing since March 6, 1962 , when the results of this election were published , violates Section 8 (b)(7)(B) of the Act, which proscribes picketing within a year after a valid election "where an object thereof is forcing or requiring an employer to bargain with a labor organization as the representative of his employees, or forcing or requiring the employees . to accept or select such labor organizations as their collective-bargaining representative." Respondent urges that whatever might have been its original object in picketing, its sole object since March 23, 1960, has been to get Aetna to give the strikers their former jobs as warehousemen. The General Counsel, on the other hand, contends that there has not been any change in the object of the picketing, and that an object was and is to force Aetna to recognize and bargain with Respondent , or to force Aetna's employees to accept Respondent as their collective -bargaining representative , regardless of what other object Respondent may have or may have invented. I am not persuaded by Respondent's argument . I do not find in this record any evidence, aside from Respondent's own assertion , that the object of the picketing has changed since its inception As the Board observed in Keith Riggs Plumbing,3 the question of objectives in every case is one of fact. Thus, the Board in various cir- cumstances has found violations of Section 8(b) (7) (B ),4 and does not rest its judg- s Keith Riggs Plumbing and Heating Contractor , 137 NLRB 1125. 4 Retail Clerks International Association, AFL-CIO, Local 219 (National Food Stores, Inc ), 134 NLRB 1680; Local Joint Executive Board of San Diego, etc (Evans Hotels), 132 NLRB 737 ; Retail Clerks International Association , Local No. 1439 (Ames IGA Foodliner), 136 NLRB 778; Dallas General Drivers , etc, Local Union No 745 ( Macatee, Inc ), 127 NLRB 683, modified 135 NLRB 62; Retail Store Employees Union Local No 692 etc (Irvin, Inc ), 134 NLRB 686; Local 130, Brotherhood of Painters etc. (Joiners, Inc ), 135 NLRB 876. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment of the true objective of a union's picketing solely on self-serving language on a picket sign or statements of union officials. It looks to all the facts and circumstances in drawing a reasonable inference as to the object of the picketing. At no time since the picketing was resumed on March 3, 1960, do I find that Respondent disclaimed either its status as representative of the striking warehousemen or its desire to bargain for them should Aetna take them back. Respondent has maintained this position throughout all the proceedings in which it has participated. Since the original dispute arose in 1958 until the filing of the charge in the instant case, it has claimed to be the bargaining representative of striking employees, and that Aetna was under a legal duty to recognize and bargain with it. The legend on its picket sign has not changed since its pickets were first posted. Clarence Kohnke, Aetna's manager, testified with- out contradiction that on March 15, 1962, Johnson, a picket, said to an inquiring driver: "We have been on strike here for years, it is the same strike." As late as the representation hearing on September 5, 1961, Respondent's position, as stated by its counsel, was that no question of representation existed because Respondent still claimed to represent the employees. During the course of the proceedings for injunctive relief 5 brought by the Regional Director and heard on May 7, 1962, Respondent advanced, for the first time, the claim that its picketing was for the purpose of securing preferential hiring for the pickets. Respondent, in its defense, cites Fanelli Ford Sales, Inc. (133 NLRB 1468) where the Board found that the object of picketing was to protest an employee's discharge and have him returned to work, and that there was no object of forcing recognition or bargaining. In that case, however, the picketing originated in the discharge. The Board distinguished the situation from that existing in Valley Knitting Mills, Inc. (126 NLRB 441), pointing out that in that case "the questioned conduct was a mere continuation of picketing which had previously been carried on with recognitional objectives; the defense being that the object of the picketing had changed." Such is the case here. While it may be that reinstatement of the discharged em- ployees became an additional object of the picketing, I am convinced that an object continued to be forcing Aetna to continue to recognize and bargain with Respondent as representative of its employees, a function which Respondent had previously per- formed and which it was reluctant to relinquish. By continuing to picket after March 6, 1962, Respondent has engaged in an unfair labor practice. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Union, set forth above, occurring in connection with the operation of Aetna described 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 commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Union has engaged in an unfair labor practice in violation of the Act, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. 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. Aetna Plywood and Veneer Company, Chicago, Illinois, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Warehouse and Mail Order Employees, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By picketing Aetna's place of business at Chicago, Illinois, from March 6, 1962, to the present time, with an object of forcing or requiring Aetna to recognize it or bargain with it as the collective-bargaining representative of the employees of Aetna, or forcing or requiring the employees of Aetna to accept or select it as their collective-bargaining representative, although it had not been currently certified as the collective-bargaining representative of such employees, and a valid election under 5 Ross M Madden, Regional Director, etc v Warehouse and Mail Order Employees Local 743, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Help- ers of America, Civil No 62 C 866 (N.D. III, ED). WAREHOUSE & MAIL ORDER EMPLOYEES, LOCAL 743 711 Section 9(c) of the Act had been held within the preceding 12 months, Warehouse and Mail Order Employees , Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, engaged in an unfair labor practice within the meaning of Section 8(b) (7) (B ), of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that Warehouse and Mail Order Employees, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents , representatives , successors , and assigns, shall: 1. Cease and desist from: (a) Picketing, causing to be picketed, or threatening to picket or to cause to be picketed, Aetna, an object being to force or require Aetna to recognize and bargain collectively with it, or its employees to accept or select it as their collective-bargaining representative , such picketing not to be engaged in for a period of 12 months following the termination of the picketing found unlawful. (b) Picketing or causing to be picketed, or threatening to picket, Aetna, for any of the aforementioned objects, where within the preceding 12 months a valid election under Section 9(c) of the Act has been conducted which Respondent did not win. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post in conspicuous places in Respondent Union's business offices, meeting halls, and all places where notices to its members are customarily posted, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by official representatives of Respondent , be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Thirteenth Region signed copies of the aforementioned notice for posting by Aetna, it willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being signed by Re- spondent, as indicated, be forthwith returned to the Regional Director for disposi- tion by him. (c) Notify the Regional Director for the Thirteenth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith.? It is further recommended that, unless within 20 days from the date of receipt of this Intermediate Report and Recommended Order, Respondent notifies said Regional Director, in writing, that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring Respondent to take the aforesaid action. 6In the event that this Recommended Order is adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO AFL MEMBERS OF WAREHOUSE AND MAIL ORDER EMPLOYEES, LOCAL 743. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT picket, or cause to be picketed, or threaten to picket, Aetna Plywood and Veneer Company, Chicago, Illinois, where an object thereof is to 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD force or require Aetna to recognize or bargain collectively with us, or its em- ployees to accept or select us as their collective -bargaining representative, and will abstain thereafter from picketing for such objects for a period of 12 months. WE WILL NOT ,picket; or cause to be picketed , or threaten to picket, Aetna, where an object thereof is to force or require Aetna to recognize or bargain collectively with us, or its employees to accept or select us as their collective- bargaining representative, where a valid election which we did not win has been conducted by the National Labor Relations Board among the employees of Aetna, within the preceding 12 months. WAREHOUSE AND MAIL ORDER EMPLOYEES , LocAL 743, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Midland Building, 176 West Adams Street, Chicago , Illinois, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. General Medical Supply Corp. and Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 25-CA-1547. January 22, 1963 DECISION AND ORDER On August 24, 1962, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in sand 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 attached Inter- mediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, together with supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to 'a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the briefs, and the entire record in this case, and adopts the findings, conclu sions, and the recommendations of the Trial Examiner as amplified herein. 1. We agree with the Trial Examiner that Respondent violated Section 8 (a) (3) and (1) of the Act by refusing to recall the employees who had been laid off on January 25, 1962, because it knew that many 140 NLRB No. 68.