Schreiber Trucking Co., Inc.

SCHREIBER TRUCKING COMPANY, INC 697 Upon the foregoing findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Respondent is a labor organization within the meaning of Section 2 (5) of the Act 2 By imposing a fine against Charles S Skura, in the circumstances of this case, because he had filed an unfair labor practice charge with the Board , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act 3 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act [Recommended Order omitted from publication 1 Schreiber Trucking Company , Inc and Inteinational Associa- tion of Machinists, Automotive Mechanics Lodge 1060 , AFL- CIO and International Brotherhood of Teamsteis , Chauffeurs, Warehousemen and Helpers of America, Local 30, Party to the Contract. Case No 6-CA-2891 August 31, 1964 DECISION AND ORDER On June 5, 1964, 'trial Examiner Louis Libbin issued his Decision in the above-entitled pioceedrlig, finding that the Respondent had en- gaged in and was engaging in ceitain unfair labor practices and iec- ommending that it cease and desist theiefiom and take ceitam af- fiima,t]ve action, as set foi th in the attached Decision Thereafter, the Respondent and the Party to the Conti act filed exceptions to the Decision, and supporting briefs while the General Counsel filed cross- exceptions to the faihiie of the Trial Examiner to iecommend certain remedial action, together with a brief in answer to the Respondent's exceptions Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its poweis in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown] The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no pieludicial eiior was committed The rulings aie hereby affirmed The Boaid has consideied the Zrial Examiner's Decision, the exceptions, cross-exceptions, and briefs, and the entire record in this case, and hereby adopts the findings, conclu- sions, and i ecommendations of the Trial Examinei I ORDER Puisuant to Section 10(c) of the National Labor Relations Act, as amended, the Board heieby adopts as its Ordei, the Order iecom- 1 Members Leedom and Brown consider it unnecessary to subscribe to the Trial Ex aminer'a dictum In footnote 17 of his Decision 148 NLRB No 83 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mended by the Trial Examiner and orders that Respondent, Schreiber Trucking Company, Inc., its officers, agents, successors, and assigns; shall take the action set forth in the Trial Examiner 's -Recommended Order as modified as follows : The following paragraph shall be added as paragraph 2(d), the present paragraph 2(d) and those subsequent being consecutively relettered in the Recommended Order : "(d) Notify the above-named employees if presently serving,in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training- and Service Act of 1948, as amended, after discharge from the Armed Forces." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed on August 15 and September 9, 1963, and on January 17, 1964, by International Association of Machinists, Automotive Mechanics Lodge 1060, AFL-CIO, herein called the Machinists , the General Counsel of the National Labor Relations Board , by the Regional Director for Region 16 (Pittsburgh, Penn- sylvania), issued his complaint, dated January 21 , 1964, against Schreiber Truck- ing Company, Inc., herein called the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance , that Respondent (1) engaged in specified conduct which constituted assistance and support to International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 30, herein called the Teamsters ; (2) discriminated with respect to the hire, tenure, and terms and conditions of employment of specified employees ; and (3 ) by the fore- going conduct has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1), (2 ), and (3 ) and Section 2(6) and (7) of the Naitonal Labor Relations Act, as amended , herein called the Act . In their duly filed answers, the Respondent and the Teamsters deny the unfair labor practice allegations which pertained to them. Pursuant to due notice , a hearing was held before Trial Examiner Louis Libbin at Pittsburgh, Pennsylvania, on February 17 and 18 , 1964. All parties were repre- sented at the hearing and were given full opportunity to be heard , to examine and cross-examine witnesses, to introduce relevant evidence , to argue orally before the close of the hearing, and to file briefs . Respondent's motion to dismiss the com- plaint, made at the close of the hearing , is hereby denied in accordance with the findings and conclusions hereinafter made . On March 31, 1964, all parties filed briefs, which I have fully considered. Upon the entire record 1 in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Schreiber Trucking Company, Inc., a Pennsylvania corporation , is engaged in in- terstate trucking operations and has terminals located in Illinois, Maryland, New York, New Jersey, and Pennsylvania. During -the 12-month period preceding the isuance of the complaint , Respondent derived a gross income in excess of $5 million from interstate shipments. Upon the above admitted facts, I find , as is admitted in the answers, that Respond- ent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answers admit , the record shows, and I find, that International Association of Machinists , Automotive Mechanics Lodge 1060, AFL- CIO, the Charging Party, herein called the_ Machinists, and International Brother- 3 I hereby note and correct obvious errors in the typewritten transcript of testimony. SCHREIBER TRUCKING COMPANY, INC. 699 hood of Teamsters, Chauffeurs, Warehousemen :and Helpers of America, Local 30, Party to the Contract, herein called the Teamsters , are each labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issues For some time prior to 1963 Respondent had been operating two terminals with garage and maintenance , facilities in the Commonwealth of, Pennsylvania. One was located in Pittsburgh, Allegheny County, and the other in Greensburg, West- moreland County, a distance of about 26 miles. ,The Machinists represented a unit of mechanics at the Pittsburgh terminal and had a union -security contract with, Respondent covering this unit . The Teamsters represented a separate unit of mechanics and helpers at the Greensburg terminal and had a union -security contract with Respondent covering this unit. In January 1963 , Respondent began to con- struct a new 'terminal and garage facilities at Irwin , Westmoreland County, Penn- sylvania, about 13 miles equidistant from Pittsburgh and Greensburg. The Irwin garage first opened on July 15, 1963, when Greensburg mechanics, including five new employees hired since July 1, began to work there and shortly thereafter were permanently transferred to Irwin. The Teamsters' contract in effect at Greensburg was applied to Irwin even before any employees began working there . In July, equipment from the Pittsburgh terminal also began to be transferred to the Irwin terminal. Meanwhile, during the 2 months after June 15, Respondent laid off four Machinists mechanics at its Pittsburgh terminal. On November 1, the Pitts-' burgh and Greensburg terminals were closed, having been completely transferred to Irwin. The remaining Machinists mechanics at Pittsburgh were offered , and ac- cepted, positions as new employees at Irwin, with loss of seniority and at reduced status and wages pursuant to the Teamsters contract. As a result of their loss of seniority, they were denied Armistice Day holiday pay and three of these mechanics were subsequently laid off for lack of work. The principal issues litigated in this proceeding are (1 ) whether Respondent's conduct in extending and applying the Teamsters' union-security contract to the mechanics' unit at Irwin constitutes, under the circumstances disclosed by the record, a violation of Section 8(a)(1), (2), and (3) of the Act, and (2) whether Respond- ent's conduct in laying off the Pittsburgh mechanics, in employing the remaining Pittsburgh mechanics at Irwin as new employees and at a reduced rate and status, in denying them Armistice Day holiday pay, and in laying off three of them as a result of their loss of seniority constitutes a violation of Section 8(a)(1) and (3) of the Act. - B. The facts 2 There is no serious dispute as to the facts hereinafter set forth . Respondent has for several years maintained terminals with garage facilities at Pittsburgh, Allegheny County, Pennsylvania, and at Greensburg, Westmoreland County, Pennsylvania. Although the, work performed at these terminals and garages was the same, the Pittsburgh terminal was by far the larger of the two. Prior to June 1963, Re- spondent, employed at, the Pittsburgh terminal 11 mechanics, 70 drivers, c and 4 - maintenance, tire, and gas men. During the same period, it employed at the Greens- burg terminal 2 mechanics and a seldom used part-time helper, and about 20 to 25 drivers. ' All the employees at the Pittsburgh terminal have been covered by three separate contracts in three separate units, negotiated for Respondent by the Western Penn- sylvania Motor Carriers Association, an employer association of which Respondent is a member and which will herein be referred to as WPMCA. The unit of 11 mechanics was covered by a union-security contract with the Machinists, the latest one being effective from June 5. 1961, to-January 31, 1964; the unit of 70. drivers was covered by a contract with Teamsters Local 249; and the unit of 4 maintenance, tire, and gas men -was covered by a contract with Teamsters Local 926. The last two contracts were negotiated with Teamsters Joint Council No. 40 for their re- spective locals. . All the employees at the Greensburg terminal were covered by two separate contracts in two separate units. The two mechanics were covered by a union- security contract negotiated directly between Respondent and the Teamsters, the The findings in this section are based on evidence and credited testimony which is either admitted or undisputed - 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD last one being effective from June 1, 1961, to January 31, 1964; and the 20 to 25 drivers were covered by a separate contract with the Teamsters , which was nego_ tiated by WPMCA with the Teamsters Joint Council No. 40. Because of the inadequacies of the Pittsburgh and Greensburg terminals and garage facilities, Respondent decided to build a new terminal and garage at Irwin, Westmoreland County, Pennsylvania, 13 miles equidistant between the Pittsburgh and Greensburg terminals, with the intention of moving and consolidating the latter two terminals in the new terminal . Construction of the new terminal began in January 1963. The contract then in effect between Respondent and the Teamsters, which covered the mechanics unit at Greensburg, referred to Respondent as "Schreiber Trucking Company, Inc., of Greensburg, Pennsylvania." On January 15, 1963, the same parties executed a memorandum of agreement, which stated that the current me- chanics contract "identifies the company as being located at Greensburg, Pennsyl- vania"; that the "company contemplates moving its garage facilities from Greensburg, Pennsylvania, to .a new location which is presently under construction at or near Irwin, Pennsylvania," and that this "Memorandum of Agreement is executed for the purpose of changing the location identification of the company from `Greensburg, Pennsylvania' to Westmoreland County, Pennsylvania.' " On May 9, 1963, a meeting was held between the WPMCA and the Teamsters Joint Council No. 40 to determine the effect of Respondent's move to Irwin on the seniority of Respondent's drivers. The decision was that article V, section 5(B-1), of the Teamsters contracts "applies (the closing,of two terminals and opening a third new facility) to the closing of the Pittsburgh and Greensburg terminals and the opening of the new Irwin, Pennsylvania, terminal," and that the Greensburg (Team- sters Local 30) and Pittsburgh (Teamsters Local 249) drivers would be allowed to re- tain their company seniority and be dovetailed at Irwin in accordance with this seniority. A notice, announcing the decision reached at this meeting, was thereafter posted in the drivers' room of the Pittsburgh terminal. In May and June, Respondent began taking application for new mechanics who would be hired at Greensburg and subsequently assigned to Irwin. On June 15, Respondent laid off two Machinists mechanics from the Pittsburgh terminal, James Ball and Harry Aiello, asserting that it was for lack of work at the Pittsburgh terminal. On July 1, Respondent began to hire new mechanics who were first put to work at the Greensburg terminal. The first official notice that the Machinists had about Respondent's intention to move its Pittsburgh operations was the Teamsters Joint Council No. 40 notice, posted at the Pittsburgh terminal and relating to the transfer and dovetailing of seniority of the Pittsburgh and Greensburg drivers. As a result, Machinists' representatives arranged to meet Respondent's representatives on July 5, in the office of Samuel Schreiber, Respondent's president. The Machinists were represented by Business Agent Tolan and Union Steward James Elnyczky, one of the Pittsburgh mechanics. Among those present for Respondent, in addition to its president. were Personnel Manager Levine, General Manager Gardner, and Maintenance Head Sidney Schreiber. Tolan stated that he understood Respondent was moving and asked President Schreiber what he intended to do with the mechanics after the Pittsburgh terminal was moved to Irwin. Schreiber replied that he had no intention of transferring the mechanics to Irwin because the Machinists' contract did not require it and because he already had a contract in effect in that territory with the Teamsters. Tolan took issue with him as to the meaning of the Machinists' contract, contending that under its terms the mechanics had a right to transfer with the job under the contract terms. Schreiber further stated that he was hiring new employees for Irwin out,of Teamsters Local 30 because he had a contract with that Union and that, as soon as the work was com- pleted at the Pittsburgh terminal, the Pittsburgh mechanics would be terminated. During the period from July 1 to 16, Respondent hired five new mechanics at Greensburg, who had never previously worked for Respondent .3 On July 15 the Irwin garage was opened. From then until July 29, the five newly hired mechanics at Greensburg plus one of the original Greensburg mechanics, Wilford Lindsey, worked in both the Greensburg and Irwin terminals. The Teamsters' union-security contract, which had been in effect at Greensburg, was admittedly applied to the employees at Irwin and the Teamsters was recognized as the bargaining representa- tive of the employees at Irwin. These five new mechanics were permanently trans- ferred to Irwin on July 29, without loss of seniority or pay, and Lindsey was permanently transferred on August 26. 3 James Myers, July 1; John Onusko , July 2; Delbert Bowser, July 8; Abe Moore, July 15 ; and William Ghrist, July 16. SCHREIBER TRUCKING COMPANY, INC. 701 Meanwhile, in July, equipment used by "the"Machinists mechanics. in their work at the Pittsburgh .terminal was shipped to'Irwin, and the type of work performed by the mechanics at Pittsburgh changed from overall maintenance of the fleet of trucks used by Respondent in day-to-day operations to fixing lights and minor repairs. Trucks previously maintained at Pittsburgh were thereafter maintained at Irwin. On July 27 and August 10, Respondent laid off two additional Machinists mechanics, John Schoop and James Elnyczky, respectively, asserting that it was for lack of work at the Pittsburgh terminal. Respondent concedes that it never made any offer to employ them or the two previously laid-off Machinists mechanics either at Greensburg or Irwin. In the latter part of July, Respondent's attorney, Jack Rosenberg, met with Machinists' attorney, Herman Lipsitz, Union Steward Elnyczky, and Gerald Hopp, one of the mechanics at the Pittsburgh terminal. Attorney Lipsitz took the position that the Machinists' contract required Respondent to transfer the Pittsburgh mechanics to Irwin and asked what Respondent intended to do when the Pittsburgh terminal was moved. Rosenberg disagreed with Lipsitz' interpretation of the Machinists' contract, and stated that none of the Pittsburgh mechanics would be transferred to Irwin and that as far as he knew Respondent had hired men out of Teamsters Local 30 at Irwin. Although the Machinists mechanics and representa- tives had always insisted that the Machinists' contract required their transfer to Irwin under the contract terms, they at no time affirmatively conditioned working at Irwin only upon ,the application of the Machinists' contract to that terminal. On August 15 and September 9, the Machinists filed the original and first amended charges in the instant proceeding. In October, Respondent for the first time notified the Pittsburgh terminal mechanics that they would be considered for employment at Irwin upon the close of the Pittsburgh terminal, stating by letter that if they wanted to apply for work at Irwin, Respondent would send them application forms. As previously noted, the Irwin garage had been operating since July 15. On November 1, the Pittsburgh and Greensburg terminals were closed and the new terminal at Irwin began regular operations. The Pittsburgh units of drivers and maintenance men were transferred to Irwin, retaining their company seniority. Most of the Machinists members filled out the applications sent to them by Re- spondent, and seven.of them were hired at Irwin as new employees during the period from November 1 to 5, 1963, despite the fact that they had been employed by Re- spondent for periods ranging from 13 to 23' years .4 Although all seven had been employed as journeymen mechanics at the Pittsburgh terminal, they were hired at Irwin under the Teamsters' contract as greasers and mechanics' helpers with a sub- stantial reduction in their hourly wage, which was even less than that paid to the newly hired Teamsters mechanics from Greensburg. No applications were required of the Teamsters mechanics from Greensburg, who.were transferred to Irwin as old employees with seniority from their original date of hire at Greensburg. No employ- ment at all was offered to the four Machinists members §' who had previously been laid off at the Pittsburgh terminal, although at least one. of them, Elnyczky, not only filed an application but had also personally visited the Irwin terminal in August and requested employment. Thus, in November 1963; the mechanics' unit at Irwin, for which the Teamsters was recognized as the'bargaining representative and to which the Teamsters' union-security contract was applied, consisted of the following 14 em- ployees: S newly hired Greensburg mechanics who were permanently transferred from the Greensburg terminal on July 29; the 2 original Greensburg mechanics who were thereafter transferred; and the 7 Pittsburgh mechanics who were hired as new employees in November. 4 These seven and the dates on which they were first employed at the Pittsburgh and Irwin terminals appear on General Counsel 's Exhibit No 2 as follows Name - Started in Pittsburgh Started in Irwin Walter A1'ockney----------------------------------------------------- 1/30/40 11/1/63 Joseph Cain ------ - ----------------------------------------------------- 4/14/45 11/4/63 John Alockney -------------------------------------------------------- - 9/17/45 11/1/63 Herman Van Horn- ------------------------------------ -------------- 1/16/48 11/4/63 - Seymour Hollander--------------------------------------------------- 11/7/48 11/5/63 Gerald Hopp ------------------------------------------- 2/15/49 11/4/63 Abraham Small- ------------------------------------ --------------- 6/22/51 11/4/63 5 Aiello, Ball, Elnyczky; and Schoop. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As a result of their loss of seniority, the Pittsburgh mechanics who were employed at Irwin in November 1963 were denied holiday pay for Armistice Day, admittedly because "they came to Irwin as new employees under the [Teamsters] Local 30 con- tract " Also, admittedly as a direct result of the application of the new seniority dates given to them as new employees , Respondent laid off for lack of work the former Pittsburgh Mechanics Van Horn and Cain on December 13, 1963, and Jan- uary 17, 1964, respectively, and also temporarily laid off former Pittsburgh Mechanic Hollander. Pursuant to the agreement of the Machinists and Respondent, a hearing was held before an arbitrator on December 9, 1963, to determine whether the Machinists' contract, by its terms, "governed the new location at Irwin as it did the Pittsburgh operation." On February 7, 1964, the arbitrator issued his decision, in which he held that the contract did not cover the transfer of the Pittsburgh terminal to Irwin and that Respondent "has not breached the contract in any respect asserted by the [Machinists] Union." C. Concluding findings 1. The extension of the Teamsters' contract to Irwin Respondent and the Teamsters contend that the Irwin garage constituted a part of, or an accretion to, the Greensburg unit and that therefore the Teamsters' contract in effect at Greensburg was properly applicable and extended to Irwin. I do not agree. The normal situation of an accretion is found where a relatively small auxiliary operation is sought to be added to, or included within the coverage of, a contract involving a larger group of employees.6 That this obviously was not the situation in the instant case is readily apparent from a comparison of the normal employee complement at Greensburg of 2 mechanics with the normal 11-man complement at Pittsburgh and the ultimate 14-man unit at Irwin. In the instant case, the me- chanics at the Pittsburgh and the Greensburg terminals had functioned as separate appropriate units covered by separate union-security agreements with different labor organizations for many years. Pittsburgh was by far the larger terminal, em- ploying about five times as many mechanics as Greensburg. The Irwin terminal and garage, located 13 miles equidistant between Pittsburgh and Greensburg, was built for the purpose of absorbing and consolidating the latter two. The work, equip- ment, and employees from Pittsburgh as well as from Greensburg were transferred to Irwin. Precisely the same kind of work as performed at Irwin as was previously performed at Pittsburgh, and Sidney Schreiber has been in charge of maintenance at both locations. Thus, the newly established Irwin terminal and garage was no more an accretion to, or part of, the Greensburg unit than the Pittsburgh unit. On the contrary, it was a new operation , resulting from the closing and merger of the other two terminals. Indeed, the WPMCA and the Teamsters Joint Council No. 40 recognized this to be the fact when in their May 9 decision they applied the relevant provision of their contract because of "the closing of two terminals and opening a third new facility." And the Board has recognized that a question con- cerning representation may be raised, and consequently no accretion to another unit may be found, where changes have occurred in the nature of a unit involving ` . . . a merger of two or more operations resulting in creation of an entirely new opera- tion with major personnel changes . . General Extrusion Company, Inc., Gen- eral Bronze Alwintite Products Corp., 121 NLRB 1165, 1167. I find that a new unit was created at Irwin, separate and apart from both Greensburg and Pittsburgh? Respondent recognized the Teamsters as the bargaining representative for the mechanics' unit at Irwin and extended the Teamsters' union-security contract in effect at Greensburg to cover the Irwin garage, even before any employees were employed within the mechanics' unit at Irwin. That this was the intention of the Respondent and the Teamsters from the time when the construction of the Irwin terminal and garage first commenced, is apparent from the memorandum of agree- ment executed on January 15, 1963. This was made explicit at the July 5 meeting with the Machinists' representatives when President Schreiber refused the Machinists' request to transfer the Pittsburgh mechanics to Irwin not only on the ground that the Machinists' contract did not require it but also because he already had a contract with the Teamsters in effect at Irwin . However, no employees in the mechanics' 6 See, e.g., Byron-Jackson Division, Borg-Warner Corporation, 117 NLRB 1613, 1616, footnote 2. 7 See, e.g., The Wheland Company, 120 NLRB 814, where a new unit was created when the employer abolished two divisions represented by different labor organizations and merged them at the plant previously occupied by one of the , eliminated divisions ; and New Jersey Natural Gas Company, 101 NLRB 251, 252. SCHREIBER TRUCKING COMPANY, INC. 703 unit were employed or worked at Irwin until July 15, 1963. Respondent's conduct in this respect was therefore tantamount to the application of a prehire contract. Accordingly, I find that by extending to Irwin the application of the Teamsters con- tract in effect at Greensburg and thereby recognizing the Teamsters as the bargain- ing representative for the Irwin mechanics' unit at a time when there was no representative group of employees employed within this unit, Respondent rendered unlawful assistance and support to the Teamsters in violation of Section 8 (a) (1) and (2) of the Act .8 In addition, when in early July the Machinists requested that its Pittsburgh con- tract be applied to Irwin and that the Pittsburgh mechanics be transferred to Irwin under said contract, Respondent was made aware of the Machinists' interest and representation claim for the mechanics' unit at Irwin .9 It is no valid defense to Respondent's conduct that the Machinists was in error as to its contractual rights. The fact remains that both the Machinists and the Teamsters were seeking to become the bargaining representative for the mechanics' unit at Irwin , thus putting Respondent on notice of the existence of a substantial question concerning repre- sentation.10 Under these circumstances, Respondent's conduct in applying its Greensburg contract with the Teamsters to the mechanics unit at Irwin and rec- ognizing the Teamsters for the Irwin unit, constituted unlawful assistance and sup- port to the Teamsters in violation of Section 8(a)(1) and (2) of the Act on this ground alone." Inasmuch as the Teamsters' contract which Respondent unlawfully applied at Irwin contained a union-security clause, I further find, in accordance with well- established precedents, that Respondent's conduct also discriminated with respect to the hire and tenure of employment, thereby discouraging membership in the Ma- chinists and encouraging membership in the Teamsters in violation of Section 8 (a) (1) and (3) of the Act.12 Respondent's reliance on the territorial jurisdiction of the Teamsters in Westmore- land County where Irwin is located, may not serve as a valid defense to its con- duct. The Board has consistently refused to predicate its unit findings upon the scope of the territorial jurisdiction of a union.13 Nor is there any merit to the further contention that the memorandum of agreement of January 15, 1963, changing the location identification of Respondent from Greensburg to Westmoreland County, was sufficient to make the Teamsters' contract lawfully applicable to Irwin. The issue here does not involve a matter of contract interpretation or contract law but rather involves the right of employees to exercise a free choice in the selection of a bargaining representative. The Respondent and the Teamsters may not, by lan- guage in a contract, usurp the Board's function of determining the appropriate unit, nor deprive employees of their freedom of -choice guaranteed by the Act.14 At most, the memorandum of agreement amounted to no more than an unlawful pre- hire contract insofar as it applied to-the mechanics ' unit at Irwin, and as such was clearly unlawful, as previously found. - 2. The treatment accorded to Pittsburgh mechanics a. Those terminated and rehired as new employees As previously found, when the Pittsburgh terminal was closed on November 1, 1963, Respondent terminated the seven remaining mechanics and then, during the 8 See, e g, W L. Raves Company, 136 NLRB 1050, 1053, enfd in this respect 328 F. 2d 464 (CA. 5) ; Barney Wilkerson Construction Company, 145 NLRB 704 9 Upon the transfer of the Pittsburgh mechanics, the Machinists would represent at least 50 percent of the Irwin mechanics' unit. 30 Contrary to Respondent's contention, the absence of the pendency of a petition before the Board does not preclude the existence of a real question concerning representation Novak Logging Company, 119 NLRB 1573 11 See, e.g, Barney Wilkerson Construction Company, 145 NLRB 704, and cases cited in footnote 3; The Wheland Company, supra. 12 See, e g., Barney Wilkerson Construction Company, supra. 18 See, e g, Paxton Wholesale Grocery Company, 123 NLRB 316; Masters-Lake Success, Inc, 124 NLRB 580, 591. ' 14 Wolfer Printing Co , Inc, 145 NLRB 695; Local 404, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A.F.L (Brown Equip- ment and Manufacturing Co ), 100 NLRB 801, 806, where, despite contract language recognizing the union for the original plant " . and adjacent area ," the Board found a violation when the union-security contract was extended to a new facility 13 miles away. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period from November 1 to 5, rehired them at Irwin as new employees with no, seniority, at reduced status and wages, and subject to the terms of the Teamsters' union-security contract. They were deprived of seniority ranging from 12 to 23 years. (see footnote 4, supra), and were reduced in status and pay from that of-journey- men mechanics to greasers and mechanics' helpers, the lowest category under the Teamsters' mechanics agreement. No such treatment was accorded to the Team- sters mechanics who were transferred from Greensburg. Even.those who were hired at Greensburg in July received seniority from their first date of employment- with Respondent and a status at Irwin higher than that of greasers and mechanics' helpers. As a result of their reduced seniority, all seven former Pittsburgh me- chanics were deprived of pay for Armistice Day pursuant to the terms of the Teamsters' contract, and three of them were subsequently laid off for lack of work, as previously found. The record clearly warrants the finding, which I herein make, that Respondent's. disparate treatment of the Pittsburgh mechanics as compared to the Greensburg, mechanics was based on the extension and application to, Irwin of the Teamsters' contract in effect at Greensburg and on the Greensburg mechanics' membership' in and past representation by the Teamsters. However, the application of the Teamsters' Greensburg contract to Irwin was unlawful, as I have previously found, and seniority and status may not lawfully be based on membership in or past representation by a specified labor organizatlon.15 It accordingly follows, as I further- find that, by the above-described treatment accorded to the seven former Pittsburgh, mechanics, Respondent discriminated with respect to their hire, tenure, and terms and conditions of employment, thereby discouraging membership in the Machinists. and encouraging membership in the Teamsters, in violation of Section 8(a)(1), and (3) of the Act. b. Those laid o$ and not rehired As previously found, the Respondent laid off at the Pittsburgh terminal two, mechanics on June 15, one on July 27, and one on August 10, 1963, all allegedly for lack of work at the Pittsburgh terminal. Respondent admittedly neither offered, discussed, nor even considered the possibility of employing these mechanics at Greensburg or Irwin. The record shows, as previously found, that equipment used in the Pittsburgh terminal was transferred to Irwin about July and that thereafter the Pittsburgh, mechanics were relegated to performing minor repairs. Meanwhile, also as previously found, Respondent hired at Greensburg five new mechanics out of the Teamsters during the period from July 1 to 16, assigned them to work part time at Irwin from July 15 to 29, and then permanently transferred them to Irwin. I am, convinced and find that any lack of work for the mechanics at-Pittsburgh was due to the gradual transfer of the facilities to Irwin and that Respondent's,overall need- for mechanics remained substantially the same. Thus, on the one hand, Respondent refused to employ at Greensburg and Irwin the four experienced laid-off mechanics who had been employed at the Pittsburgh terminal for periods ranging from 11/2 to 4 years, while on the other hand it hired five new inexperienced mechanics at Greensburg and shortly thereafter transferred them to Irwin, as it originally intended at the time it hired them. At the oral argument before the close of the instant hearing, Respondent's counsel could give no reason, for Respondent's conduct in this respect other than to. say that Respondent had no legal obligation to employ the laid-off mechanics elsewhere. Admittedly, neither the Machinists' nor the Teamsters' contract forbade the employment of the Pittsburgh mechanics at the other terminals. While it is true that Respondent had no legal obligation to employ the laid-off Pittsburgh mechanics at the other terminals, it is also true that it did have a legal obligation not to refuse to employ them for discriminatory reasons. The record convincingly demonstrates, as I herein find, that Respondent did not comply with this obligation. Thus, as previously found, at the July 5 meeting with the Machinists' representatives, President Schreiber gave as one of his reasons for refusing to transfer the Pittsburgh mechanics to Irwin that he- already had a contract with the Teamsters in effect at Irwin and that he was hiring new employees for Irwin out,of the Teamsters Local 30 because he had a contract with that union. When asked on cross-examination why he did not send some of the laid-off mechanics to Irwin, President Schreiber testified that it was because "we ha,1 a contract with rTeamstersl Local 30 and of course we hired men from their Union." No other credible explanation has been offered for Respondent's conduct in hirinn new untrained mechanics in preference to using the experienced ones who were laid is See, e g, The Wheland Company, 120 NLRB 814, 818-819. SCHREIBER TRUCKING COMPANY, INC. 705 off.16 I therefore find that Respondent did not offer employment to the laid-off Pittsburgh mechanics because of the Teamsters contract which it was unlawfully applying to Irwin and because the laid-off mechanics were not members of and had not been represented by the Teamsters. By such conduct, Respondent discriminated with respect to the hire and tenure of employment of the four laid-off Pittsburgh mechanics, thereby discouraging membership in the Machinists and encouraging membership in the Teamsters, in violation of Section 8(a) (1) and (3) of the Act. c. The effect of the arbitrator's decision The Respondent contends that the arbitrator's decision, dated February 7, 1964, is dispositive of the issues in this case and that the complaint should therefore be dis- missed in accordance with the Board's practice of giving effect to an arbitral award. As I do no agree with Respondent's premise that the arbitrator's decision is dispositive of the unfair labor practice issues, it follows that the arbitrator's decision is of no effect in the instant case and does not require dismissal of the complaint. The arbitrator's decision clearly indicates that the only issue litigated in that proceeding and resolved by him was whether the Machinists' contract required Re- spondent to apply said contract to Irwin and to transfer the Pittsburgh mechanics under the contract terms. On this issue, he ruled in favor of Respondent and held that Respondent did not breach the Machinists' contract in any respect. However, the complaint has never alleged, the General Counsel has never contended, and I have nowhere found, that the Pittsburgh mechanics had a contractual right to be transferred to Irwin under the terms of the Machinists' contract or that Respondent should have applied the terms of the Machinists' contract to the Pittsburgh mechanics who were rehired at Irwin. The arbitrator's decision does not hold, nor does Re- spondent contend, that the Machinists' contract forbade the Respondent from trans- ferring the Pittsburgh mechanics to Irwin. It is clear that the arbitrator did not have before him and did not decide the unfair labor practice issues as to whether the Teamsters' contract could lawfully be applied to Irwin and as to whether Re- spondent's treatment of the Pittsburgh mechanics, in the respects previously detailed, was based on the application of the Teamsters contract to Irwin and on the fact that they were not members of and had not been represented by the Teamsters. Any doubts in this respect are completely dissipated by the following paragraph which appears on page 6 of the arbitrator's decision: The Union raises, both expressly and by implication, questions of unfair practice on the part of the Company which it then states are beyond the scope of sub- mission in this Arbitration. It also, in its brief, refers to occurrences which were not available for and put into the record of this hearing. No decision is herein made or implied as to these matters, either as to whether they are deter- mined by this Opinion or as to whether they are unfair labor practices. The contention that what is provided in the contract is completely separable from what is fair practice presents genuine difficulties: of course, a contract may be obtained by unfair means; but in that event it is not a binding contract. This Opinion deals, however, only with this contract as written. None of the findings which I have made in this Decision are in any way in- consistent or in conflict with the arbitrator's decision. This then is not a situation where acceptance of the arbitrator's decision requires dimissal of the complaint and .the issue therefore arises whether to give controlling effect to the arbitrator's de- cision.17 Here, even accepting the correctness of and giving full weight to the .arbitrator's decision, it still has no bearing or effect upon the issues raised by the complaint and the findings made by me in this Decision. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, 19 As previously found, none of the Pittsburgh mechanics or Machinists' representatives ever affirmatively conditioned employment at Irwin only upon the application of the terms and conditions contained in the Machinists' contract. This Is verified by the fact that the seven mechanics accepted employment at Irwin as new employees at reduced rates and status 17 Were this the situation in this case Board precedents would require giving no effect to the arbitrator's decision because he did not pass upon the unfair labor practice issus. Raytheon Company, 140 NLRB 883; Monsanto Chemical Company, 130 NLRB 1097--- - 760-577-65-,.] 148--- 46 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. I have found that Respondent discriminated with respect to the hire , tenure, and terms and conditions of employment of the 11 former Pittsburgh mechanics named in the complaint. Had there been no discrimination against them, I find that (1) James Ball and Harry Aiello, who were laid off on June 15, 1963, would have been reemployed at the other terminal at least by July 1 and 2,. 1963 , when the first two mechanics were hired out of the Teamsters, and would then have been transferred to Irwin with the rest of the mechanics ; and (2 ) that John Schoop and James Elynyczky, who were laid off on July 26 and August 10, 1963, respectively, would have been transferred to Irwin without any break in service in place of the other new mechanics hired in July. I will therefore recommend that Respondent offer the above-named employees immediate and full reinstatement at the Irwin garage to the positions they would have occupied absent any discrimination against them, without prejudice to their seniority or other rights and privileges , and accord them` the terms, conditions , and employment status, including wages and seniority, consistent with the practice which Respondent followed when it transferred the Teamsters mechanics from Greensburg. I will further recommend that they be made whole for any loss of earnings they may have suffered as a result of the dis- crimination against them, by payment to each of a sum of money equal to that which they normally would have earned as wages from the date when they would have been employed at the other terminal, as previously found, to the date of Respond- ent's offer of reinstatement, less their net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 13 8 NLRB 716. As a result of the Respondent's discriminatory conduct in depriving the remain- ing seven mechanics of their seniority status, Herman Van Horn and Joseph Cain were subsequently laid off on December 13, 1963, and January 17, 1964, respectively, and Seymour Hollander was temporarily laid off for a period beginning December 27, _ 1963, as previously found . I will therefore recommend that Respondent offer Van Horn and Cain immediate and full reinstatement to the positions they would have occupied absent any discrimination against them , without prejudice to their seniority or other rights and privileges , and accord them and Hollander the terms , conditions, and employment status, including wages and seniority , consistent with the practice which Respondent followed when it transferred the Teamsters mechanics from Greensburg. I will further recommend that all three be made whole for any loss of wages incurred as a result of their layoff, in the manner described in the preced- ing paragraph, and for any loss of wages incurred as a result of the discrimination practiced against them since the closing of the Pittsburgh terminal, including pay for Armistice Day holiday, with interest thereon at 6 percent per annum. With respect to the remaining four mechanics,18 I will recommend that Respond- ent accord them the terms, conditions, and employment status, including wages and seniority, consistent with the practice which Respondent followed when it trans- ferred the Teamsters mechanics from Greensburg , and that it make them whole for any loss of wages incurred as a result of the discrimination practiced against them since the closing of the Pittsburgh terminal, including pay for Armistice Day holi- day, with interest thereon at 6 percent per annum. Having found that Respondent violated the Act by applying the Teamsters' union- security contract to the mechanics' unit at Irwin and by recognizing the Teamsters as the bargaining representative for the Irwin mechanics' unit, I will recommend that Respondent withdraw and withhold recognition from the Teamsters as the representative of Respondent's employees in the mechanics' unit at Irwin unless and until the Board shall certify it as such representative and that Respondent cease giving effect to the collective -bargaining agreement, executed with the Teamsters on June 15 , 1961, or to any modification , extension , renewal, or supplement thereto. The record shows that Respondent has had contractual relations with different labor organizations for a great number of years. Although I have found that Re- spondent has violated Section 8 (a)(1), (2), and (3) of the Act, I am convinced '8 Walter Alockney, John Alockney , Gerald Hopp, and Abraham Small SCHREIBER TRUCKING COMPANY, INC. 707 that Respondent's conduct resulted primarily from the unusual facts present in this case rather than from an utter disregard of the employees' statutory rights and does not disclose any danger of the commission of additional unfair labor practices. Accordingly, I do not deem it necessary to recommend a broad cease-and-desist order in order to effectuate the policies of the Act.19 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. By applying the Teamsters' union-security contract to the mechanics' unit at the Irwin terminal and by recognizing the Teamsters as the bargaining representative for the Irwin mechanics' unit, at a time when,there was no representative group of employees within the mechanics' unit at Irwin and at a time when a real question concerning representation existed with respect to said unit, as detailed in section III, C, 1, supra, the Respondent has rendered unlawful assistance and support to the Teamsters and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 2. By applying the Teamsters' union-security contract to the mechanics' unit at the Irwin terminal under the circumstances set forth in the preceding paragraph, and by the treatment accorded to the former Pittsburgh mechanics, as detailed in section III, C, 2, supia, the Respondent has discriminated with respect to the hire, tenure, and terms and conditions of employment of its employees, thereby discourag- ing membership in the Machinists and encouraging membership in the Teamsters, and has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I hereby recommend that Respondent, Schreiber Truck- ing Company, Inc., Irwin, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Giving unlawful assistance or support to International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local 30, or to- any other labor organization. (b) Recognizing the above-named labor organization as the representative of any of its employees in the mechanics' unit at the Irwin terminal for the purpose of deal- ing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours, or other terms and conditions of employment. (c) Giving any force or effect to the collective-bargaining agreement, executed with the above-named labor organization on June 15, 1961, or to any modification, extension, renewal, or supplement thereto, provided however, that nothing herein shall require Respondent to. vary or abandon any -wage, hour, seniority, or other substantive feature of its relations with its employees which has been established in the performance of this agreement, or to prejudice the assertion by employees of any rights they may have thereunder. (d) Encouraging membership in the above-named or any other labor organization and discouraging membership in International Association of Machinists, Automo- tive Mechanics Lodge 1060, AFL-CIO, or in any other labor organization, by dis- criminating with respect to the employees' hire, tenure, and terms and conditions of employment. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right is affected by the provisos in Section 8(a) (3) of the Act. Significantly, although the General Counsel has set forth In detail the nature of the remedy he is seeking, no request has been made for a broad cease-and-desist order. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from- International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 30, as the collective-bargaining representative of any of its employees in the mechanics' unit at the Irwin terminal for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, unless and until the Board shall certify said labor organization as such representative. (b) Offer to James Ball, Harry Aiello, John Schoop, James Elynyczky, Herman Van Horn, and Joseph Cain, immediate and full reinstatement at the Irwin garage to the positions they would have occupied absent any discrimination against them, without prejudice to their seniority or other rights and privileges, and accord them and Seymour Hollander, Walter Alockney, John Alockney, Gerald Hopp, and' Abraham Small, the terms, conditions, and employment status, including wages and seniority, which they would have had absent Respondent's discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Make whole the 11 employees named in the preceding paragraph for any loss of earnings, including pay for Armistice Day holiday, incurred as a result of the Respondent's discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Recommended Order. (e) Post at its terminal and garage in Irwin, Pennsylvania, copies of the attached notice marked "Appendix A." 20 Copies of said notice, to be furnished by the Regional Director for Region 6 (Pittsburgh, Pennsylvania), shall, after being duly signed by an authorized representative of the Respondent, be posted by it im- mediately upon receipt thereof, and be maintained by it for a period of 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 6 in writing, within 20 days from the date of this Decision and Recommended Order, what steps the Respondent has taken to comply therewith 2i 20 In the event that this Recommended Order shall be adopted by the Board, the words "a Decision 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 "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." ' 21In the event that this Recommended Order is 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 the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES 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 our employees that: WE WILL withdraw and withhold all recognition from International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 30, as the collective-bargaining representative of any of our employees in the mechanics' unit at our Irwin terminal, unless and until so certified by the National Labor Relations Board. WE WILL NOT give any force or effect to the collective-bargaining agreement executed.by us on June 15, 1961, with the above-named labor organization, or to any modification. extension, renewal, or supplement thereto. WE WILL'NOT give any unlawful assistance or support to the above-named or to any other labor organization. WE WILL NOT encourage membership in the above-named labor organization and discourage membership in International Association of Machinists, Auto- METALAB-LABCRAFT, DIV. OF METALAB EQUIPMENT CO. 709 motive Mechanics Lodge 1060, AFL-CIO, or in any other labor organizations, by discriminating with respect to employees' hire, tenure, and terms and condi- tions of employment. WE WILL offer to the following employees immediate and full reinstatement at the Irwin garage, without prejudice to their seniority or other rights and privileges: James Ball John Schoop Herman Van Horn Harry Aiello James Elynyczky Joseph Cain WE WILL accord to the above-named six employees and to the following five employees the terms, conditions, and employment status, including wages and seniority, which they would have had, absent the discrimination against them: Seymour Hollander Abraham Small Gerald Hopp Walter Alockney John Alockney WE WILL make whole the above-named 11 employees for any loss of earnings, including pay for Armistice Day holiday, incurred as a result of the discrimina- tion against them. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right is affected by the provisos in Section 8 (a) (3) of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining members of any labor organization, except to the extent that such right may be affected by the provisos in Section 8(a) (3) of the Act. SCHREIBER TRUCKING COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-In the event any of the above-named employees are presently serving in the Armed Forces of the United States we will notify them of their right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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, 2107 Clark Building, 701-17 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone No. Grant 1-2977, if they have any question concerning this notice or compliance with its provisions. Metalab-Labcraft, Division of Metalab Equipment Company and District 50, United Mine Workers of America. Case No. 6-CA- 2856. August 31, 1964 DECISION AND ORDER On May 28, 1964, Trial Examiner Sidney S. Asher, Jr., issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the Act and recommending that Respondent cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, Respondent filed exceptions to the 148 NLRB No. 82.