William H. Carroll

In the Matter Of WILLIAM H. CARROLL and INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, STABLEMEN AND HELPERS OF AMERICA, LOCAL 42 (AFL) Case No: C-1719.-Decided January 31, 1941 Jurisdiction : transportation of mail under contract with U. S. Government; jurisdiction contested. ' Settlement : stipulation providing for compliance with the Act. Remedial Orders : entered on stipulation. Mr. Edward Schneider, for the Board. Mr. Edward J. Coughlin and Mr. Lawrence M. Kearns, of Lynn, Mass., for the respondent. M11r. William A. Nealey, of Lynn, Mass., for the Union. Mr. Raymond J. Compton, of counsel to the Board. ' DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local 42 (AFL), herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional. Director for the First Region (Boston, Massachusetts), issued its complaint, dated October 4, 1940, against William H. Carroll, Swampscott, Massachusetts, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing were duly served upon the respond- ent and the Union. With respect to the unfair labor practices the complaint alleged in substance that the respondent (1) on or about March 12, 1940, discriminatorily discharged Fred T. McNamara, Jr., Paul T. Dunne, and Raymond E. Godin, and on or about June 8, 1940, following reinstatement of the aforementioned employees, again discriminator- 29 N. L. R. B., No. 66. 343 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ily discharged and thereafter refused to reinstate. Fred T. McNamara, Jr.; (2) on or about March 12, 1940, and all times thereafter, refused to bargain collectively with the Union as the exclusive representative of all drivers employed by the respondent, exclusive of supervisory and maintenance employees, said employees constituting an appro- priate bargaining unit; and (3) that. by the aforesaid. acts, by questioning his employees as to their membership in the Union, and by making statements intended to discourage his employees from be- coming or remaining members of the Union, interferred with, re- strained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. On October 14, 1940, the respondent filed an answer to the com- plaint, admitting the allegations of the complaint as to the nature of his business, -but denying that he was engaged in commerce within the meaning of the Act or that he had committed the unfair labor practices alleged therein. Pursuant to notice, a' hearing was held on- October 17, 1940, at Lynn, Massachusetts, before James C. Paradise, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel, the Union by its representative, and all participated in the hearing. On October 17, 1940, the respondent, the Union, and the counsel for the Board entered into a stipulation in settlement of the case. This stipulation provides as follows : STIPULATION It is hereby stipulated by and between WILLIAM H. CAR- ROLL, hereinafter referred to as the Respondent, the TRUCK DRIVERS, CHAUFFEURS AND HELPERS UNION, LO- CAL NO. 42, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, STABLEMEN AND HELP- ERS OF AMERICA, affiliated with the American Federation of Labor, and Edward Schneider, Regional Attorney for the First Region, National Labor Relations Board, that : 1. Evidence at the hearing in the above-entitled matter shall be limited to the issue-of the applicability of the National Labor Relations Act to Respondent and the employees of Respondent and the jurisdiction of the National Labor Relations Board to enter against the Respondent the Order hereinafter set forth. 2. It is stipulated that Fred T. McNamara, Jr., has obtained employment which is substantially equivalent to his former em- ployment with Respondent and that his loss of earnings from the time of his discharge by the Respondent until he obtained WILLIAM H. CARROLL 345 said substantially equivalent employment is Fifty Dollars ($50.00). 3. Truck Drivers, Chauffeurs and Helpers Union, Local No. 42, International Brotherhood of Teamsters, Chauffeurs, Stable- men and Helpers of America, affiliated with the American Fed- eration of Labor, hereinafter referred to as the Union, is a labor organization within the meaning of Section 2, subsection (5) of the National-Labor Relations Act, hereinafter called the Act. - 4. The drivers employed by the Respondent for the operation ,Of motor vehicles used in the carrying, transportation and de- livery of mails of the United States, exclusive of supervisory, clerical and maintenance employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. On March 11, 1940, the Union was the representative for collective bargaining of a majority of the employees in said unit. 5. It is further stipulated and agreed, subject however to the provisions of Paragraph 7 hereof, that upon the pleadings, evidence at the hearing, and upon this stipulation, if approved by the National Labor Relations Board, an Order may, forth- with be entered by said Board providing as follows : 1. Respondent, his agents,' successors and assigns shall cease and desist from : (a) Discouraging membership in the Truck Drivers, Chauf- feurs, and Helpers Union, Local No. 42, International Brother- hood of Teamsters, Chauffeurs, Stablemen and Helpers of America, affiliated with the American Federation of Labor, or any other labor organization of his employees by discrimi- nating in regard to hire or tenure of employment or any term or condition of employment ; (b) In any manner interfering with, restraining or coercing his employees in the exercise of their right to self-organiza- tion, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of col- lective bargaining or other mutual aid or protection, as guar- anteed in Section 7 of the National Labor Relations Act ; (c) Refusing to bargain collectively with the Truck Drivers, Chauffeurs and Helpers Union, Local No. 42, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, affiliated with the American Federation of Labor, 346 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD as the exclusive representative of the drivers employed by the Respondent for the operation of the motor vehicles used in the carrying, transportation and delivery of mails of the United States, exclusive of supervisory, clerical and mainte- nance employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment. 2. Respondent, his agents, successors and assigns shall take the following affirmative action to effectuate the policies of the Act : (a) Upon request bargain collectively with the Truck Drivers, Chauffeurs and Helpers Union, Local No. 42, Inter- national Bortherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, affiliated with the American Federa- tion of Labor, as the exclusive representative of the drivers employed by Respondent for the operation of the motor ve- hicles used in the carrying, transportation and delivery of mails of the United States, exclusive of supervisory, clerical and maintenance employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Make whole Fred T. McNamara, Jr., for loss of pay suffered by reason of his discharge by Respondent by payment to him of the sum of money of Fifty Dollars ($50.00) ; (c) Post immediately in conspicuous places at his place of business and in his motor vehicles used in the carrying, tI ans- portation and delivery of mails of the United States, notices embodying the cease and desist provisions of this Order, the notices to remain posted for a period of sixty (60) consecu- tive days from the date of posting; (d) Notify the Regional Director for the First Region in writing within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. 6. The parties waive the right to a hearing on the issues of the case, except as provided in Paragraph 1 hereof. The parties waive their right to an intermediate report by the trial examiner of the National Labor Relations Board. The parties waive the making of findings of fact and conclusions of law except on the issue on which evidence is taken as provided in Paragraph 1 hereof. The parties also waive the issuance of Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order by the Board, waive the right to argue orally before the Board, and to file briefs with the Board. 7. The parties consent to the entry of a decree by the appro- priate Circuit Court of Appeals, if the Board desires to make WILLIAM H. CARROLL 347 application thereto, enforcing the Order of the Board in the form set forth in Paragraph 5 above, subject however to the following reservation : The Respondent reserves to himself. the right to contest before any appropriate court the applicability of the National Labor. Relations Act to Respondent and the employees of Respondent, and' by reason of the aforesaid the jurisdiction of the National Labor Relations Board and appropriate Circuit Court of Appeals to enter against the Respondent the Order and Decree set forth in subdivision 1- (a), (b), and (c), and 2 (a), (b), and (c), and (d) of Paragraph 5 above, but waive any and all other rights to contest the validity and propriety of the Order and the entry of said Order and Decree by the Board and the appropriate Circuit Court of Appeals. 8. It is further agreed that this stipulation shall be null and void and of no effect in the event the National Labor Relations Board does not approve this stipulation and does not enter an Order based upon the terms and provisions of said stipulation, and that in the event the Board does not approve the stipula- tion and issue an Order based upon the terms and provisions of said stipulation the hearing shall be rescheduled and all parties shall have full and complete opportunity to introduce such testimony as they desire within the issues as framed. 9. This stipulation constitutes the entire agreement between the parties and no verbal agreement of any kind has been made which varies, alters or adds to the stipulation. 10. It is further stipulated between the parties that the stipu- lation which was received in evidence as Board's Exhibit No. 2 at the hearing in the above-entitled matter may be with- drawn, and that this stipulation may be substituted in lieu thereof as Board's Exhibit No. 2 with the same force and effect as if it were the stipulation offered in evidence at Page 6 of the transcript of the record and received and marked in evidence at Page 7 of the transcript of the record. On November 6, 1940, the Board issued its order approving- the above stipulation, making it a part of the record in the case, and transferring the proceeding to the Board for the purpose of entry of a decision and order by the Board pursuant to the provisions of the stipulation. Upon the above stipulation and the entire record in the case, the Board makes the following : 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT THE BUSINESS OF THE RESPONDENT Pursuant to a contract with the United States executed for and during the term beginning July 1, 1937, and ending June 30, 1941, the respondent, William H. Carroll, is engaged in the transportation of mail by truck to and from the United States Post Office at Lynn, Massachusetts, the Lynn railroad depot and other branch post offices located at East Lynn, West Lynn, Saugus, Swampscott, and Naliant, Massachusetts, all of which are within the Lynn postal district. The respondent owns and operates five motor trucks and, employs four regular drivers, other than himself, in the performance of the duties outlined above. Under the terms of the contract,' the respondent is required to furnish a bond conditioned upon the faithful performance of the services contracted for. Drivers employed by the respondent must meet certain minimum age and educational standards, and are re- quired to take an oath prescribed by the Post Office Department and to wear a standardized cap or hat, with badge. The contract further provides that "drivers furnished by contractors for the services of carrying the mails will be required to load and unload the mails under the direction of authorized representatives of the Post Office Department" and that "the drivers' motor vehicles and services are to be at all times under the control of the postmaster and are to be operated under such schedules as the postmaster may prescribe." Other than these general limitations, and the additional provision that the postmaster may "require the contractor to suspend a driver from. duty for inefficiency or other serious delinquency," the contract embodies no restriction upon the freedom of the respondent to em; ploy whomsoever he chooses. The respondent may likewise discharge his employees at will, and has sole authority to fix their hours of work, rates of pay, and other conditions of employment. The respondent contends that he is not an employer within the meaning of Section 2 (2) of the Act, since he and his employees are acting directly in the interests of the United States Government and under its close supervision, direction, and control. In view of the facts set forth above, we are of the opinion that the contention of the respondent cannot be sustained and we find that the respond-` I I The contract incorporates by reference the conditions set forth in a Post Office bulletin issued December 8, 1936, entitled "Advertisement Inviting Proposals for Carrying the Mails." WILLIAM H. CARROLL 349, ent is an employer within the meaning of'Sectioll'2'(2) of the Act-2. We further find that the above-described operations of the respond-_ ent constitute a continuous flow of trade, traffic, and commerce among the several States, within the meaning of the Act. ORDER Upon the basis of the above findings of fact, the above stipulation, and the entire'record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, William H. Carroll, Swampscott, Massachusetts, his agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in the Truck Drivers, Chauffeurs; and Helpers Union, Local No. 42, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, affiliated with the American Federation of Labor, or any other labor organiza- tion of his employees by discriminating in regard to hire or tenure of employment or any term or condition of employment; (b) In any manner interfering with, restraining or coercing his employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other 'mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act; (c) Refusing to bargain collectively with the Truck Drivers, Chauffeurs and Helpers Union, Local No. 42, International Brother- hood of Teamsters, Chauffeurs, Stablement and Helpers of America, affiliated with the American Federation of labor, as the exclusive representatives of the drivers employed, by the Respondent for the operation of the motor vehicles used in the carrying, transportation and delivery of mails of the United States, exclusive of supervisory, clerical and maintenance employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Upon request bargain collectively with the Truck Drivers, Chauffeurs and Helpers Union, Local No. 42, International Brother- hood of Teamsters, Chauffeurs, Stablemen and Helpers of America, 2 Cf. Matter of New York Mail h Newspaper Transportation Co. and Committee for A- dustrial Organization, on Behalf of the Employees of the New York Mail & Newspaper Transportation Co., 4 N. L. R. B. 1066. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affiliated with the American Federation of Labor, as the exclusive representative of the drivers employed by Respondent for the opera- tion of the motor vehicles used in the carrying, transportation and delivery of mails of he United States, exclusive of supervisory, clerical and maintenance employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment ; (b) Make whole Fred T. McNamara, Jr., for loss of pay suffered by reason of his discharge by Respondent by payment to him of the sum of money of Fifty Dollars ($50.00) ; •(c) Post immediately in conspicuous places at his place of business and in his motor vehicles used in the carrying, transportation and delivery of mails of the United States, notices embodying the cease and desist provisions of this Order, the notices to remain posted for a period of sixty (60) consecutive days from the date of posting; (d) Notify the Regional Director for the First Region in writing within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith.