Teamsters, Local 17

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local Union No. 17 and Seferino F. Martinez and Colorado Transfer & Storage, Inc., Party to the Contract and Colorado Transfer and Warehouse- men's Association, Inc., Party to the Contract. Case 27-CB-656 July 18, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO ing was transferred to the Board, and permission was granted to the parties to file briefs. Thereafter, the General Counsel and the Respondent Union filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the basis of the stipulation, the briefs, and the entire record in this proceeding, the Board makes the following: FINDINGS OF FACT Upon a charge filed by Seferino Frank Martinez, an individual, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 27, issued a complaint dated October 15, 1971, against International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 17, herein called the Respondent Union, alleging that the Respondent Union had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended. The complaint, as amended,1 alleged, in substance, that the Respondent Union and Colorado Transfer & Storage, Inc., a member of the Association,2 named as a Party to the Contract, herein called the Employer, maintained and gave effect to a contract clause which discriminated against employees of Hoffman Transfer Company and, further, caused, or attempted to cause, the Employer to discriminate against Hoffman Transfer employees by placing said employees at the bottom of the Employer's seniority list because they had not been represented by, or had refrained from membership in, the Respondent Union. The Respondent Union's answer admits in whole or in part certain allegations of the complaint, but denies the commission of any unfair labor practices. On February 14, 1972, the parties to this proceed- ing entered into a stipulation of facts and consent to transfer the proceeding to the Board. They agreed that the stipulations of facts, including the exhibits attached thereto, constitutes the entire record in this proceeding, and waived a hearing before the Trial Examiner and issuance of a Trial Examiner's Decision. The parties also agreed to submit the proceeding directly to the Board for findings of fact, conclusions of law, and order. By order of the Board dated February 18, 1972, the stipulation of the parties was approved, this proceed- I. JURISDICTION Colorado Transfer & Storage, Inc., the Employer, a Colorado corporation, is engaged in the business of transportation of goods by truck and the storage of goods at its Denver, Colorado, place of business. In its trucking operations, the Employer is engaged as an interstate common carrier transporting goods between and among various States of the United States and, in the course and conduct of said operations, the Employer annually derives gross revenues in excess of $50,000. The Employer, also, annually derives gross revenues in excess of $50,000 from trucking operations performed pursuant to contracts or arrangements with, and/or as agent for, various interstate common carriers operating be- tween and among various States of the United States. We find that Colorado Transfer & Storage, Inc., is, and at all times material herein has been, an employer engaged in commerce within the meaning of the Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 17, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts The Colorado Transfer and Warehousemen's Association, Inc., of which the Employer is a member, and the Respondent Union entered into a collective-bargaining agreement effective from Janu- ary 19, 1971, to January 19, 1974, covering the truckdrivers, helpers, and warehousemen employed by the Association's members. This agreement 1 The General Counsel filed an amendment to the complaint on 2 Colorado Transfer and Warehousemen 's Association. Inc. December 15, 1971, and filed an amended complaint on December 29, 1971 198 NLRB No. 42 TEAMSTERS, LOCAL 17 contains, inter alia, standard seniority provisions, and a clause, article 36, which states as follows: SUCCESSORS AND ASSIGNS. This Agreement and any Supplemental Agreements hereto, here- tofore referred to collectively as "Agreement," shall be binding upon the parties hereto, their successors, administrators, executors and assigns. It is the intent of the parties, whenever there is a merger of two (2) companies signatory to this Agreement, that the seniority of the employees shall be dovetailed into one (1) seniority list, unless the parties agree otherwise. In 1968, Hoffman Transfer Company, herein called Hoffman, was also signatory to an agreement with the Respondent Union. Hoffman was not a member of the Association but signed an identical contract negotiated on its behalf by Mountain States Employ- ers Council. During 1968, Hoffman was sold on two occasions, the last purchaser being Lee Bryant, who chose to bargain directly with the Respondent Union. Thereafter, Bryant, who was president of Hoffman, and the Respondent Union failed to reach agreement on a new contract and on February 22, 1971, the Respondent Union struck the Hoffman premises and set up a picket line. At that time, there were four Hoffman employees, namely, John Duran, Seferino Frank Martinez, Jerry Arp, and Joe Chu- mara, all of whom, with the exception of Chumara, were members of the Respondent Union. While the strike was in progress, Hoffman hired three replace- ments for the strikers. Subsequently, Duran, Marti- nez, and Arp withdrew their membership in the Respondent Union and returned to work. On or about March 8, 1971, the Respondent Union withdrew its picket line, and no new agreement was ever reached. On July 22, 1971, Colorado Transfer, as indicated heretofore, purchased all the outstanding stock of Hoffman from Lee Bryant, acquiring also the Hoffman facilities and equipment. On July 21, 1971, the day before Colorado Transfer purchased Hoffman Transfer, Kenneth Bradley, vice president of Colorado Transfer, went to the Respon- dent's office with seniority lists for Hoffman and Colorado Transfer. He told Harry Marshall, the Respondent's secretary-treasurer, that Hoffman had been purchased and asked how seniority for the two companies would be worked out. Marshall initially said Hoffman was still on strike, that Hoffman was nonunion, and therefore the employees of the nonunion company would go to the bottom of the list. Later, after conversing with his attorney, Marshall said that the Hoffman employees would be treated as new employees of Colorado Transfer because they were a nonunion company merging with a union company, as per article 36 of the 253 contract. In this connection, it appears that at the time of the acquisition of Hoffman by Colorado Transfer, there were six Hoffman employees. If these employees' continuous service with Hoffman had been treated as seniority and if their service had been dovetailed into the Colorado Transfer seniority list, three Hoffman employees, namely, Duran, Martinez, and Arp, would have had the highest seniority on the list. Soon after his conversation with Marshall, Bradley met with the Hoffman employees and related the substance of Marshall's remarks. Bradley then advised the employees that they would be treated as new employees of Colorado Transfer; that they would be on probation for 30 days; that at the end of 30 days they would have to join the Union; and that they would then go to the bottom of the seniority list. Since the acquisition of Hoffman by Colorado Transfer, there has been a single seniority list for the two companies and the employees working at the Hoffman operation have been considered and treated as new employees of Colorado Transfer as of July 22, 1971. According to the parties' stipulations, the employees' dates of employment with Hoffman are used to determine the order of layoff only if a layoff affects less than all these individuals. In August 1971, the aforementioned former Hoff- man employees, Duran, Martinez, and Arp, went to the Respondent's office and spoke with Respon- dent's business agent, Butch Pinkerton. They specifi- cally asked Pinkerton about their seniority. Pinker- ton stated that they "messed themselves up" by crossing the picket line. Pinkerton also said that they had to go to the bottom of the seniority list because the Respondent Union had no contract with Hoff- man and there was no way they could be dovetailed with the Colorado Transfer employees, and he added that so far as the Respondent Union was concerned, there was no Hoffman Transfer. Pinkerton then gave Martinez a copy of a letter, dated August 2, 1971, addressed to Respondent official, Harry Marshall, from Attorney John Criswell, suggesting, inter alia, that the former Hoffman employees could, if they desired, file a grievance concerning their seniority. No grievance has been filed to date. In this connection, it appears that the Association and the Union are in accord as to the seniority granted the Hoffman employees. B. The Contentions of the Parties The General Counsel contends that the Respon- dent Union violated Section 8(b)(1)(A) and (2) of the Act by maintaining and giving effect to article 36 of its collective-bargaining agreement with the Associa- tion which, it is alleged, is unlawful on its face and, 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD moreover, that the Respondent Union violated the same provisions of the Act by agreeing with Colorado Transfer that Hoffman employees would go to the bottom of Colorado Transfer's seniority list because such employees had refrained from member- ship in and activity on behalf of the Respondent Union. The Respondent Union, on the other hand, contends that seniority is not a statutory right nor an incident of employment, but rather a right which arises solely out of contract, and that, therefore, there has been no discrimination against former Hoffman employees in that they did not have any seniority rights arising out of their previous employment. C. Conclusions 1. Article 36 of the collective-bargaining agree- ment between the Association, of which the Employ- er herein is a member, and the Respondent Union requires, in essence, that in the event one company, which is a party to the Association's agreement, merges with another such company, the seniority of employees of the two companies shall be dovetailed. In other words, the seniority of employees of the two companies would be integrated and the date of employment by one of such companies would be counted as of the date of employment in the entity produced by the merger. As indicated heretofore, the General Counsel contends that article 36 is unlawful on its face. The Board has held that a provision conditioning seniority benefits on an employment history with a signatory employer is not unlawful, insofar as it merely protects the transferability of seniority within a single-multiemployer bargaining unit. The com- plaint here alleges a violation based on Colorado Transfer's contract with Respondent Union negotiat- ed through the Colorado Transfer and Warehouse- men's Association. Colorado Transfer was a member of the Association and, if the clause were limited to mergers within the multiemployer unit, it would, under Board authority, be perfectly lawful. The validity of such a clause lies in its protection of unit seniority, while failing to discriminate on the basis of union membership; the benefit is denied all employ- ees outside the bargaining unit, irrespective of their union affiliation. On the face of the instant clause, it cannot be determined that this clause conferred seniority benefits on persons employed by employers who were not a part of the multiemployer unit. This issue necessarily must turn on consideration of extrinsic evidence. For this reason, we find that article 36 is not unlawful on its face, and is not violative of Section 8(b)(2) and (1)(A) of the Act.3 2. The General Counsel further contends that even if article 36 is not unlawful on its face, the Respondent Union's demand that Hoffman employ- ees be treated as new employees of Colorado Transfer was motivated by unlawful considerations and, hence, violated Section 8(b)(2) and (1)(A) of the Act. We find ample evidence in the record to support the General Counsel's contention. Thus, on July 21, 1971, the day prior to the acquisition of Hoffman Transfer, Marshall, the Respondent Union's secretary-treasurer, told Brad- ley, Colorado Transfer's vice president, that Hoff- man was still on strike, and that, theretofore, the employees of that company, which was nonunion, would go to the bottom of the seniority list. A short time later, after conferring with his attorney, Mar- shall told Bradley that Hoffman employees would be treated as new employees of Colorado Transfer because they were a nonunion company merging with a union company, as per article 36. Later that day, Bradley, acquiescing in the Respondent Union's demand, informed the Hoffman employees that they would be treated as new employees, that they would be on probation for 30 days, at the end of 30 days they would have to join the Respondent Union, and that they would go to the bottom of Colorado Transfer's seniority list. Moreover, in the following month, when Hoffman employees asked Butch Pinkerton, the Respondent Union's business agent, about their seniority, Pinkerton replied that they had "messed themselves up" by crossing the picket line at the Hoffman premises. Pinkerton added that they had to go to the bottom of the seniority list because the Respondent Union had no contract with Hoff- man and there was no way they could be dovetailed with the Colorado Transfer employees. Pinkerton then added that as far as the Respondent Union was concerned, there was no Hoffman Transfer. Under these circumstances, we are persuaded that the Respondent Union invoked article 36 and insisted on "end tailing" the Hoffman employees because they were not members and did not support activities of the Respondent Union. Based on the foregoing, we conclude that by not crediting Hoffman Transfer employees, including Duran, Martinez, and Arp, after their acquisition by Colorado Transfer, with their accrued Hoffman seniority, because of their lack of membership in the Respondent Union, the Respondent Union caused 3 The record, including the Respondent's brief, contains admissions such an application, in and of itself, might well make the clause, in practice, indicating that the intent of the clause was to grant the dovetailing benefits unlawful , we need not reach this issue in view of the clear evidence as to its to employees of signatories of like agreements even though the employees of unlawful application in this case as hereinafter described such signatories were not within the multtemployer bargaining unit. While TEAMSTERS, LOCAL 17 Colorado Transfer to discriminate against them in violation of Section 8(b)(2) and (1)(A) of the Act.4 The Remedy Having found that the Respondent Union has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectuate the basic policies of the Act. We have found that the Respondent Union caused the Employer to apply article 36 of the collective- bargaining agreement so as to adversely affect the seniority of Hoffman Transfer employees. We shall, therefore, order the Respondent Union to cease applying, or giving effect to, article 36 in a manner which discriminates against employees of Hoffman Transfer with respect to their seniority on the basis of their lack of membership in, or representation by, the Respondent Union. We shall also order the Respon- dent Union to take appropriate action to the end that Hoffman Transfer employees will be granted seniori- ty on the same basis as would be accorded to employees of any other company merged into a company covered by the governing collective-bar- gaining agreement. CONCLUSIONS OF LAW 1. Colorado Transfer & Storage, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdic- tion herein. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 17, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining and giving effect to article 36 of its collective-bargaining agreement with the Association in a discriminatory manner, and by causing the Employer to apply such provisions so as to adversely affect the seniority of former employees of the Hoffman Company because they refrained from engaging in union activity, the Respondent Union has violated Section 8(b)(2) and (1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 4 See, e g, Woodlawn Farm Dairy Co, Division of Dolly Madison Foods, Inc, 162 NLRB 48 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order ORDER 255 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 17, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Maintaining or giving effect to article 36 of the collective-bargaining agreement with Colorado Transfer & Storage, Inc., in a manner which discriminates against employees of Hoffman Trans- fer with respect to seniority on the basis of their lack of membership in, or refusal to support the activities of, the Respondent Union. (b) Causing or attempting to cause Colorado Transfer & Storage, Inc., to deprive Hoffman Transfer employees of seniority rights based on their lack of membership in, or refusal to support the activities of, the Respondent Union. (c) In any like or related manner restraining or coercing employees of Colorado Transfer & Storage, Inc., in the exercise of rights guaranteed them in Section 7 of the Act, except to the extent that such right may be affected by an agreement requinng membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which the Board finds necessary to effectuate the policies of the Act. (a) Request Colorado Transfer & Storage, Inc., in writing, to accord to Hoffman Transfer employees seniority on the same basis as would be accorded to the employees of any other company merged into a company covered by the governing collective-bar- gaining agreement, without discrimination on ac- count of their prior lack of membership in the Respondent Union. (b) Notify, in writing, all employees of Hoffman Transfer, including John Duran, Seferino Frank Martinez, and Jerry Arp, that it has taken the action referred to in paragraph (a) above, and that it will, in good faith, seek to accord such employees seniority on the aforesaid basis. (c) Post at its business offices and meeting halls in Denver, Colorado, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's author- of the National Labor Relations Board" shall read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ized representative , shall be posted by Respondent immediately upon receipt thereof , and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to its members are customarily posted . Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for Region 27 signed copies of said notice for posting by Colorado Transfer & Storage, Inc., at its place of business in Denver, Colorado, in places where notices to employees are customarily posted, if the Employer is willing to do so. (e) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE' WILL NOT maintain or give effect to article 36 of our collective-bargaining agreement with Colorado Transfer & Storage, Inc., in a manner which discriminates against employees of Hoff- man Transfer with respect to seniority, on the basis of their lack of membership in, or refusal to support activities of, our Union. WE WILL NOT cause , or attempt to cause, Colorado Transfer & Storage, Inc., to deprive Hoffman . ransfer employees of seniority rights based on their lack of membership in, or refusal to support the activities of, our Union. WE WILL request Colorado Transfer & Storage, Inc., in writing, to accord to Hoffman Transfer employees seniority on the same basis as would be accorded to the employees of any other company merged into a company covered by the governing collective-bargaining agreement, with- out discrimination on account of their lack of membership in our Union. WE WILL notify, in writing, all employees of Hoffman Transfer, including John Duran, Seferi- no Frank Martinez, and Jerry Arp, that we have taken the action referred to above and that we will, in good faith , seek to accord such employees seniority on the aforesaid basis. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL UNION No. 17 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, U.S. Custom House, Room 260, 721 19th Street, Denver, Colorado 80202, Telephone 303-837-3551.