Adley Express Co.

National Labor Relations Board - Board Decisions

May 29, 1959

123 N.L.R.B. 1372 (N.L.R.B. 1959)

11372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adley Express Company and Motor Transport Labor Relations,
Inc. and Lillian Long and Margaret MacElroy
Local 161 , International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Independent and
Lillian Long and Margaret MacElroy. Cases Nos. 4-CA-1734
and 4-CB-449. May 29, 1959
DECISION AND ORDER
On March 13, 1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ent Union filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are here affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in these
cases and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations with the modifications indicated in the Order.'
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
,of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Adley Express Company and Motor Transport Labor Rela-
tions, Inc., their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Recognizing Local 161, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Inde-
pendent, as the representative of any of Respondent Adley's clerical
employees for the purpose of dealing with either or both of them
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until
said labor organization shall have demonstrated its status as majority
1 We specifically note our disagreement with the Trial Examiner ' s failure to include
provisions for the reimbursement of any union dues , `fees , assessments , or other moneys
withheld or paid over . See footnote 7 of the Intermediate Report . Even in the absence
of evidence that such moneys have been withheld or paid , the Board directs reimbursement.
123 NLRB No. 170.
ADLEY EXPRESS COMPANY 1373
representative of the aforesaid employees pursuant to a Board-
conducted election.
(b) Giving effect to or performing the agreement effective June 23,
1958, or any modification, extension, or renewal thereof, or any sup-
plemental or superseding agreement relating to grievances, labor
disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment, unless and until Local 161 shall have demon-
strated its majority status in the manner stated above, and then only
if the agreement otherwise conforms to the provisions of the Act;
but nothing herein shall be construed to vary or abandon the wages,
hours, seniority, or other substantive provisions of any such
agreement.
(c) Entering into, maintaining, renewing, or enforcing any
agreement with Local 161, or any other labor organization, which
requires employees to join or maintain their membership in such labor
organization as a condition of employment, unless such agreement
has been authorized as provided in Section 8(a) (3) of the Act.
(d) Encouraging membership in Local 161, or in any other labor
organization, by conditioning hire or tenure of employment upon
membership in, affiliation with, or dues payments to, such union, ex-
cept where such conditions have been lawfully established by an
agreement in conformity with the Act.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights may be affected
by an agrement requiring 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 will
effectuate the policies of the Act :
(a) Withdraw and withhold recognition from Local 1'61, as the
representative of Respondent Adley's clerical employees for the pur-
pose of dealing with either or both of them concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until said labor organization
shall have demonstrated its status as majority representative of the
aforesaid employees pursuant to a Board-conducted election.
(b) Jointly and severally with Local 161 refund' forthwith to all
Respondent Adley's clerical employees from whose wages funds have
been withheld or deducted for transmittal to Local 161, or from whom
Local 161 has collected funds directly, the amount of any and all such
funds,' to the end that each employee shall be promptly, fully, and
completely reimbursed for any such moneys.
2 Such liability for reimbursement shall not extend to any amounts deducted more
than 6 months prior to the date of service of the respective charges herein..
1374 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
(c) Post at their offices in Philadelphia, Pennsylvania, copies of
the notice attached hereto marked "Appendix A."' Copies of said
notice, to be furnished by the Regional Director for the Fourth Re-
gion, shall, after being duly signed by representatives of Adley Ex-
press Company and Motor Transport Labor Relations, Inc., be posted
by them immediately on receipt thereof and be maintained by them
for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Post at the same places and under the same conditions, as set
forth in (c) above, as soon as forwarded by the Regional Director,
copies of the notice attached hereto marked "Appendix B."
(e) Mail to the Regional Director for the Fourth Region copies of
the notice attached hereto marked "Appendix A" for posting by the
Respondent Union in its business office and union hall in Philadel-
phia, Pennsylvania, in places where notices to members are custom-
arily posted. Copies of said notice, to be furnished by the Regional
Director, shall, after being signed as provided above, be forthwith
returned to the Regional Director for such posting.
(f) Notify, in writing, the Regional Director for the Fourth Re-
gion, within 10 days from the date of the Order, as to what steps they
have taken. to comply herewith.
B. Local 161, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independent, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Acting as the bargaining representative of any of the clerical
employees of Respondent Adley Express Company for the purpose
of dealing with said Company and/or Respondent Motor Transport
Labor Relations, Inc., concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment, unless and until it shall have demonstrated its status as the
majority representative of the aforesaid employees pursuant to a
Board-conducted election.
(b) Giving effect to, or performing, the agreement effective
June 23, 1958, or any modification, extension, or renewal thereof, or
any supplemental or superseding agreement covering Respondent
.Adley's clerical employees, unless and until it shall have demon-
strated its majority status in the manner stated above, and then only
if the agreement otherwise conforms to the provisions of the Act;
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
ADLEY EXPRESS COMPANY 1375
but nothing herein shall be construed to vary or abandon the wages,
hours, seniority, or other substantive provisions of the agreement.
(c) Entering into, maintaining, renewing, or enforcing any agree-
ment with Respondents Adley and MTLR which requires employees
to join, or maintain their membership in, Local 161 as a condition of
employment, unless such agreement has been authorized as provided
in Section 8 (a) (3) of the Act.
(d) Causing or attempting to cause Respondent Adley to discrimi-
nate against its employees in violation of Section 8 (a) (3) of the Act.
(e) In any like or related manner, restraining or coercing em-
ployees in the exercise of rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized by Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with Respondents Adley and MTLR re-
fund forthwith to all Respondent Adley's clerical employees from
whose wages funds have been withheld or deducted for transmittal to
it, or from whom it has collected funds directly,4 the amount of any
and all such funds, to the end that each employee shall be promptly,
fully, and completely reimbursed for any such moneys.
(b) Post in conspicuous places in its business office and union hall
in Philadelphia, Pennsylvania, and at all places where notices to mem-
bers are customarily posted, copies of the notice attached hereto
marked "Appendix B." 5 Copies of said notice, to be furnished by
the Regional Director for the Fourth Region, shall, after being duly
signed by a representative of Local 161, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, In-
dependent, be posted by it immediately upon receipt thereof and be
maintained by it for a period of 60 consecutive days thereafter.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Post at the same places and under the same conditions, as set
forth in (b), above, as soon as forwarded by the Regional Director,
copies of the notice attached hereto marked "Appendix A."
(d) Mail to the Regional Director for the Fourth Region copies of
the notice attached hereto marked "Appendix B" for posting by Re-
spondents Adley and MTLR at their offices in Philadelphia, Penn-
sylvania, in places where notices to employees are customarily posted.
Copies of said notice, to be furnished by the Regional Director, shall,
4 See footnote 2, above.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an order."
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after being signed as provided above , be forthwith returned to the
Regional Director for such posting.
(e) Notify, in writing, the Regional Director for the Fourth Re-
gion , within 10 days from the date of the Order, as to what steps it
has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT recognize Local 161, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Independent, as the representative of any of Adley Express
Company's clerical employees for the purpose of dealing with us
concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, unless and
until said labor organization shall have demonstrated its status
as majority representative of the aforesaid employees pursuant to
a Board-conducted election.
WE WILL NOT give effect to or perform the agreement effective
June 23, 1958, or any modification, extension, or renewal thereof,
or any supplemental or superseding agreement relating to griev-
ances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until Local 161
shall have demonstrated its majority status in the manner stated
above, and then only if the agreement otherwise conforms to the
provisions of the Act; but nothing herein shall be construed to
vary or abandon the wages, hours, seniority, or other substantive
provisions of any such agreement.
WE WILL NOT enter into, maintain, renew, or enforce any agree-
ment with Local 161, or any other labor organization, which
requires employees to join, or maintain their membership in, such
organization as a condition of employment, unless such agreement
has been authorized as provided in Section 8(a) (3) of the Act.
WE WILL NOT encourage membership in Local 161, or in any
other labor organization, by conditioning hire or tenure of em-
ployment upon membership in, affiliation with, or dues payments
to, such union, except where such conditions have been lawfully
established by an agreement in conformity with the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
ADLEY EXPRESS COMPANY 1377
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section.
8(a) (3) of the Act.
WE WILL, jointly and severally with Local 161, refund forth-
with to all Adley's clerical employees from whose wages fund&
have been withheld or deducted for transmittal to Local 161, or
from whom Local 161 has collected funds directly, the amount
of any and all such funds, as provided in the Order, to the end
that each employee shall be promptly, fully, and completely
reimbursed for any such moneys.
All employees of Adley Express Company are free to become, re-
main, or refrain from becoming members of any labor organization,
except to the extent that such right may be affected by an agreement
conforming to the applicable provisions of Section 8(a) (3) of the
National Labor Relations Act.
ADLEY EXPRESS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
MOTOR TRANSPORT LABOR RELATIONS, INC.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES OF ADLEY EXPRESS COMPANY AND TO ALL
MEMBERS OF LOCAL 161, INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
INDEPENDENT
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT act as the bargaining representative of any of the
clerical employees of Adley Express Company for the purpose of
dealing with said Company and/or Motor Transport Labor
Relations, Inc., concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment, unless and until we shall have demonstrated our status as
the majority representative of the aforesaid employees pursuant
to a Board-conducted election.
508889-60-vol. 123-8 , 8
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT give effect to or perform the agreement effective
June 23, 1958, or any modification, extension, or renewal thereof,
or any supplemental or superseding agreement covering Adley's
clerical employees, unless and until we shall have demonstrated
our majority status in the manner stated above, and then only if
the agreement otherwise conforms to the provisions of the Act;
but nothing herein shall be construed to vary or abandon the
wages, hours, seniority, or other substantive provisions of the
agreement.
WE WILL NOT enter into, maintain, renew, or enforce any agree-
ment with Adley and MTLR which requires employees to join or
maintain their membership in our Local as a condition of employ-
ment, unless such agreement has been authorized as provided in
Section 8(a) (3) of the Act.
WE WILL NOT cause or attempt to cause Adley to discriminate
against its employees in violation of Secbion 8(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a) (3) of
the Act.
WE WILL jointly and severally with Adley and MTLR refund
forthwith to all Adley's clerical employees from whose wages
funds have been withheld or deducted for transmittal to us, or
from whom we have collected funds directly, the amount of any
and all such funds, as provided in the Order, to the end that each
employee shall be promptly, fully, and completely reimbursed for
any moneys so deducted or withheld.
LOCAL 161, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
INDEPENDENT,
Labor Organization.
Dated--------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed in the above-entitled cases, an order consolidating
cases, a complaint and notice of hearing thereon having been issued and served
by the General Counsel of the National Labor Relations Board, and answers
having been filed by the above-named Respondents, a hearing involving allega-
tions of violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and
ADLEY EXPRESS COMPANY 1379
(2) of the National Labor Relations Act, as amended, 61 Stat. 136, was held
in Philadelphia, Pennsylvania, on January 27 and 28, 1959, before the duly
designated Trial Examiner.
At the hearing all parties were represented and were afforded full opportunity to
examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to
argue orally upon the record, and to file briefs and proposed findings of fact and
conclusions of law. Counsel for the Respondents argued orally. Briefs have been
received from all parties except MTLR.
At the conclusion of the hearing ruling was reserved upon motions by the Re-
spondents to dismiss. Such motions are disposed of by the following findings, con-
clusions, and recommendations.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT ADLEY EXPRESS COMPANY AND RESPONDENT MOTOR
TRANSPORT LABOR RELATIONS, INC.
The complaint alleges, and the answers of the Respondents concerned admit, the
following facts which are adopted as findings:
1. Respondent Adley is a corporation duly organized under the laws of the State
of Connecticut and is engaged in the transportation of freight by motor truck. It
operates a number of divisions throughout the eastern part of the United States,
including the Commonwealth of Pennsylvania, and the States of New Jersey and
Connecticut. Its annual gross revenue is in excess of $200,000, of which in excess
of $100,000 annually is derived from transporting freight between the States of the
United States.
2. Respondent Adley is a member of Respondent MTLR. Respondent MTLR is
a nonprofit membership organization under the laws of the Commonwealth of Penn-
sylvania, and is an association of employers who are engaged in freight transporta-
tion activities. Respondent MTLR negotiates and signs collective-bargaining agree-
ments with Respondent Union on behalf of all its members including Respondent
Adley, and is the representative of its members, including Respondent Adley, in deal-
ing with unions. Members of the association annually receive revenue from inter-
state trucking operations which exceeds $100,000. Members of the association
annually receive a gross revenue in excess of $100,000, which is derived from
rendering services to enterprises which ship goods outside the State of origin valued
in excess of $100,000 annually.
3. Respondent Adley and Respondent MTLR, and each of them, at all times
material herein have been and are now engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 161, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Independent, is a labor organization admitting to member-
ship employees of Respondent Adley at its Philadelphia office.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
In preliminary summary, the salient facts are these. One day a number of Adley's
clerical employees signed cards authorizing Local 161 to be their bargaining agent.
The next day all but one of the same employees revoked their action by written
notification to Local 161 and by sending a copy of such notification to their em-
ployer, Adley. A few days later the managerial representative of Adley met with
representatives of Local 161 and of Motor Tranusport Labor Relations, Inc., an em-
ployers' association of which Adley was a member and to which Adley had previously
given power of attorney to act for it in matters of collective bargaining. Despite
Adley's protest that the authorization cards had been revoked, Local 161 insisted
that the cards, not the revocations, must be honored. The Union also maintained
that, under terms of its existing contract with MTLR, Adley, being a member,
:automatically became a party to the contract and was bound by it the moment a
majority of Adley's clerical employees had designated "the Union, to the satisfaction
,of MTLR, as their lawful collective bargaining agency." MTLR agreed with Local
161, and notified Adley that because of Local 161's majority representation it must
be included in the area agreement-a contract which contained union-shop provi-
sions.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In substance, it is General Counsel's chief claim that the contract thus entered!
into by Adley was illegal because at the time it was executed Local 161 did not rep-
resent the employees within the meaning of the Act. By executing this illegal agree--
ment, General Counsel further contends, the Respondents MTLR, Adley, and.
Union, and each of them, violated certain sections of the Act. The more detailed!
contentions, and findings relevant to them, will be set out below.
B. Relationship between the Respondents
Fora number of years Adley has been a participating member of MTLR in Phila-
delphia. John Batti, operating head of Adley's Southern Division, has been a.
member of MTLR's board of directors. Of the approximately 100 employees under
him at the Philadelphia operation are about 17 clerical employees-and with these-
clerical employees only are the issues of this case concerned.
As noted above, MTLR is an association of certain employers. It functions.
chiefly by negotiating and signing collective-bargaining agreements with various.
labor organizations on behalf of its participating members. MTLR, at material
times, has held Adley's power of attorney, which authorized MTLR "to include
us as a party to the union contracts now in existence and/or any contracts that may
be negotiated in the future, between your corporation and Local Unions."
In June 1958 there existed between MTLR and Local 161 a contract containing.
the following recognition provision:
MTLR recognizes the Union as the sole collective bargaining agency for the.
clerical employes, who are employed by any Operator whose name appears on!
Exhibit "A," at such operators' place or places of business in Philadelphia,.
Pennsylvania. MTLR further agrees to recognize the Union as the sole col-
lective bargaining agency for the clerical employes, employed by any other-
Operator, member of MTLR, the majority of whose clerical employes may
hereafter designate the Union, to the satisfaction of MTLR, as their lawful,
collective bargaining agency, in which event the terms of this agreement, ex-
cept those governing wages, shall apply; in the matter of wages there shall be
negotiations conducted thereon. The term "employe" or "employes" as used.
in this agreement, shall not be construed to extend to or effect in any way
terminal managers, assistant terminal managers, office managers, salesmen or-
solicitors, dispatchers, assistant dispatchers, warehouse foremen, assistant ware--
house foremen, dock foremen, assistant dock foremen, supervisory personnel,.
executive personnel, full-time telephone operators, confidential secretaries, con-
fidential employes, and checkers.
The same contract contains the following union-shop clause:.
All employes shall, within thirty-one (31) days after the execution of this.
agreement or within thirty-one (31) days of the date of their employment,
whichever is later, become and remain members of the Union in good standing:
as a condition of employment.
As of June 12, 1958, Adley was not included among the employers listed on,
"Exhibit A," referred to in the recognition clause.
C. Events leading to inclusion of Adley in MTLR-Local 161 contract
On June 12 there were about 17 clerical employees on Adley's. Philadelphia pay-
roll. On that date 10 of these 17 signed cards designating Local 161 as their "chosen.
representative in all matters pertaining to wages, hours and working, conditions." 1
During the afternoon of that day, and before signing a card, employee MacElroy-
informed Batti, identified above as head of the Philadelphia operations, that she had!
been told by the telephone operator that more than half of the employees had al-
ready signed cards. After declaring that she did not want to. sign, MacElroy asked
Batti's advice. He told her that he could not advise her, and said she- must use her
own judgement. She then signed a card later that day.
The next morning, June 13, employee Long went to Batti, and according to her
credible testimony (corroborated by that of Batti), the following conversation took
place:
I said, "Mr. Batti, I'm in trouble." And he said, "What kind! of trouble,.
Lillian? Did you join a union?" And I said, "Who told you about it?" He-
1 All parties conceded the authenticity of signatures and dates of signing_ appearing:
on 10 cards placed in evidence by Respondent Local 161.
ADLEY EXPRESS COMPANY 1381
said, "I knew before you ever got here." So I said, "Now I want out, Mr.
.Batti. Can you help me?" Mr. Batti said, "Did you sign a card?" I said,
"'Yes." He said, "There is nothing I can do for you, I'm sorry."
Also the same morning, according to Batti's uncontradicted testimony, he dis-
-cussed the situation with employee Carol Pryjmski, who had not signed a card the
day before. His testimony is quoted:
I discussed the situation with her, and in the course of our conversation, I
took for granted which Mrs. MacElroy told me, that over fifty percent had
signed up. So I said, "Under the circumstances, to avoid embarrassment, if you
are approached, your best bet would be to sign up rather than to possibly be
penalized."
Shortly after noon on June 13, Batti received a call from an MTLR official who
told him that a union official, Mullen, had jost telephoned and said he "had a
majority of the Adley employees." Batti replied to the MTLR official, "Yes, I was
told that." 2 Thereafter, apparently by arrangement of MTLR, a meeting was
scheduled for June 18, the purpose of which "was a formal one to look at the
signatures." 3
Later in the afternoon of June 13, employee MacElroy and a group of other
clerical employees discussed "getting out of the union," and decided that a letter of
withdrawal be written. After the office manager left, about 7 o'clock, this employee
went to the front office and drafted and typed the following letter:
JUNE 13, 1958.
LOCAL 161 TEAMSTERS AFOFL
1174 N 3rd St.,
Philadelphia, Pa.
Attn: Mr. Lawrence Mullin (sic)
DEAR SIR: We wish to inform you that we have changed our minds, and
do not wish to join Local 161. We would appreciate it if you would return our
signed cards immediately.
Very truly yours,
The letter was signed that night by 10 employees and sent the next morning to
Local 161, a signed copy being also mailed to Adley. Union Official Mullen and
Batti received this letter of revocation Monday morning, June 16. The cards,, how-
ever, were not returned by Local 161, as the employees requested.
Batti took with him his copy of the above letter to the conference of June 18
with MTLR and Local 161 officials. At this meeting Batti questioned the pro-
cedure of verifying signatures on cards which the Union produced in view of the
letter of revocation, but he nevertheless did verify the authenticity of 9 of the 10
signatures on cards submitted to him. All nine, whose card signatures he verified,
had signed the above-quoted letter of revocation 5 days earlier, on June 13. Batti
.still insisted that because of the revocations Adley should not be "made a party to
the contract."
That afternoon a meeting of MTLR directors was held. They voted 14 to 1 that
Adley was to be bound by the contract.
Two days later, on June 20, employees MacElroy and Long, as individuals, filed
charges with the Board against both Adley and Local 161, claiming that their rights
under the Act had been interfered with by being coerced into joining Local 1:61.
In his brief, counsel for Local 161 urges that the Trial Examiner conclude that "the
contract became firm about noon" (of June 13), when "Mr. Batti admitted to Mr. Gordon
(the MTLR official) that the majority of Adley's clerical employees had signed authoriza-
tion cards for the Union." The Trial Examiner finds insufficient testimony in the record
to support the proposed finding that "Mr. Batti admitted, etc." Batti was the only
witness to testify on the point-Gordon was not called and Mullen was not questioned
about any call he may have made to Gordon-and Batti's testimony is clearly and un-
equivocally to the effect that he did not concede the majority claim, but merely admitted
that he "had been told" that a majority of the employees had signed cards. Since there
is no evidence that Batti had seen any signed cards up to this time, there is no ground
for an inference that he might have conceded the majority claim in his talk with Gordon.
Finally, had Batti actually conceded the majority on June 13, there would have been no
reason for the meeting of June 18, described hereinafter, for the express purpose of
Inspecting the cards and signatures.
3 The quotation is from a question by counsel for MTLR, which Batti answered In
the affirmative.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following this June 18 decision by his agent MTLR, Batti and another Adley
representative met with Local 161 and MTLR officials on a number of occasions
and finally agreed on wages and welfare benefits. Finally, on July 11, MTLR sent
to Local 161 a letter stating that as of June 23 Adley had been added to the list of
employers on "Exhibit A" of the contract heretofore described.
In mid-July, Batti convened the office employees, urged them to withdraw their
charges filed with the Board, told them wage increases would be retroactive to
June 23, and pointed out that under terms of the contract they must join Local 161
or be subject to discharge 34 days after June 23, the effective date of the contract.
On September 20 Local 161 sent the following letter to Adley's clerical employees::
The current contract between Motor Transport Labor Relations, Inc., and
Transportation Checkers, Receivers and Clerical Workers, Local 161 affiliated.
with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, covering the office employees of Adley Express Co.,.
requires you to join Local 161 within thirty-one (31) days after the date of
your employment, or the date of the contract, whichever is later. This Union
security clause is strictly in accordance with existing law.
Some of you have not as yet paid the required initiation fee or dues to,
Local 161. Under the law, and pursuant to the contract, Local 161 has the
right to request Adley to terminate your employment if, after seven (7) days"
notice to Adley, you fail to make such payments.
Because of the pending case before the National Labor Relations Board, we
are not taking such action at this time. However, we are sure that this case
will ultimately be decided in our favor. You are, therefore, advised that when
the pending case is concluded you will be required to pay not only your initia-
tion fee into Local 161, but also all back dues for a period beginning either
thirty-one (31) days after the date of your employment, or thirty-one (31)
days after the date of the contract, whichever is later.
We believe that it is only fair to warn you of this fact at this time. Because
of the possible risk to your job, we would suggest that you begin payment of
your initiation fee of Five Dollars ($5.00) and the regular monthly dues of
Four Dollars ($4.00) to Local 161 at its office, 1174 North 3rd St., Phila., Pa..
If you have any questions whatsoever, or if there are any inquiries that you.
would like to make, please do not hesitate to contact me, either by telephone
(Walnut 3-1680), or in person.
Up to the time of the hearing it does not appear that Local 161, which claims to,
be their agent, has taken "such action" as threatened in the above letter to have
"terminated" any of its claimed principals-the clerical employees of Adley.
D. Conclusions
As to the foregoing facts, General Counsel contends that execution of the con
tract was violative of the Act for the following reasons:
(1) Local 161 did not at any time represent a majority of Adley's clerical
employees.
(2) Before the contract became effective, the employees had withdrawn their
authorizations.
(3) Both Adley and MTLR had reason to doubt majority representation before
Local 161 demanded recognition.
(4) Insufficient care was exercised by Adley and MTLR in recognizing Local 161
as representative of employees in a unit where they would be unable "to divest.
themselves of the Union through a decertification petition."
Local 161, on the other hand, in part claims in its brief:
(1) That the Union represented a majority of the clerical employees "at the time
the contract became effective";
,(2) That "any action taken by Adley's clerical employees on June 13, 1958, was
the result of suggestion by Adley supervisors and was based upon promises of
economic betterment made by Adley representatives";
(3) That "the recognition of the Union pursuant to the contract when it repre-
sented a majority is equivalent to a certification"; and
(4) That "the contract became firm about noon on June 13, 1958."
Respondent Adley, in its brief, after reviewing the evidence, claims, in effect that:
(1) It "not only did not interfere, coerce, intimidate or influence the employees"
but acted quite laudably in its dealings with both the employees and the Union; and
(2) The sole question is whether employees who signed authorization cards one
day and withdrew them shortly thereafter, are considered to have designated the
Union as their collective-bargaining agent.
ADLEY EXPRESS COMPANY 1383
The Trial Examiner believes that point ( 2) of the above-summarized contentions
of General Counsel and Respondents Local 161 and Adley should first be con-
sidered.4 Affirmative resolution of the question of the revocation effectiveness
would make it unnecessary , in the opinion of the Trial Examiner , to reach other
points raised by General Counsel.
The preponderance of credible evidence , the Trial Examiner finds, refutes Local
161's claim that Adley caused the employees to prepare or sign the revocation letter
or that their action "was instigated by Mr. Batti, the Division Superintendent, and
by Mr. Lynch , a supervisor."
Lynch is, and then was, classified as a "rate clerk ," on an hourly pay basis.
While it does appear that he oversees or "supervises " the work of some other clerks,
there is no evidence that he possesses or exercises sufficient authority to place him
in the category of supervisors within the meaning of the Act. The claim of the
Union is further depreciated by the fact that Local X161, which by contract excludes
"supervisors ," presented Lynch's signed authorization card to be counted on June
18, and according to Batti his card was counted . Furthermore , Lynch's part in the
revocation procedure by his own testimony appears to have been merely to sign
it. "I didn 't know for quite some time, that there was going to be a letter until
I signed it."
The credible , straightforward testimony of employees MacElroy, Long, and
Plichter establish beyond question , in the Trial Examiner 's opinion , that Batti had
nothing to do with the letter of revocation.
The Trial Examiner concludes and finds that the letter of revocation , signed by
the 10 employees , was not the result of coercion or promises of benefit on the
part of management representatives . The Trial Examiner further concludes and
finds that such revocations became effective as soon as the letter was received by
Local 161 , which by Union Representative Mullen 's testimony was early Monday
morning, June 16.
Thus, when representatives of Local 161 , Adley , and MTLR met on June 18 to
"verify" signatures , and before MTLR granted recognition on behalf of Adley,
Local 161 plainly did not represent a majority of Adley's clerical employees.
The Trial Examiner believes there is merit in General Counsel 's contention that
the Board 's statement of position in Reeder Motor Company ( 96 NLRB 831, 834)
governs here . The Board said:
If a recently selected bargaining representative is to be divested of its authority,
we believe it reasonable to require that the withdrawal of such authority be
evidenced by clear and unambiguous conduct and with the degree of certainty
required to establish the original designation , for surely the necessary standards
of proof in both these situations should be the same.
In short , the Trial Examiner is convinced and finds that Local 161 was without
authority to serve as the collective -bargaining agent for Adley's clerical employees
on June 16 and thereafter . It follows, and is concluded and found , that by execut-
ing a contract containing the above-described union -security clause at a time when
Local 161 was not the validly designated majority representative of Adley's clerical
employees : ( 1) Respondents Adley and MTLR gave substantial assistance and sup-
port to a labor organization and discriminated in regard to terms and conditions
of employment to encourage membership in a labor organization ; ( 2) Respondent
Local 161 caused and attempted to cause Adley and MTLR to discriminate against
employees in violation of Section 8(a)(3) of the Act; and ( 3) Respondents Local
161, Adley, and MTLR restrained and coerced employees in the exercise of rights
guaranteed by the Act.5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above occurring in con-
nection with the operations of the Respondents MTLR and Adley, described in
section I, above, have a close , intimate , and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
4 No brief was received from counsel for MTLR. In oral argument , counsel said that
not until the hearing had lie been aware that there was any question about the Union
representing "a valid majority ." He urged vigorously , however , that the master agree-
ment between MTLR and the Teamsters be not upset by any Board order , thus disturbing
the industrial peace which has existed in this area since 1956.
6 Hibbard Dowel Co ., 113 NLRB 28; Northern California Chapter, The Associated
General Contractors of America , Inc., 119 NLRB 1026.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings and conclusions of facts and upon the.
,entire record in the case, the Trial Examiner makes the following conclusions of
law:
1. Local 161, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Independent, is a labor organization within the meaning of
Section 2(5) of the Act.
2. By recognizing the above-named labor organization as sole bargaining repre-
sentative of Respondent Adley's clerical employees, and executing a contract with
said labor organization making membership therein an employment requirement, at
a time when said labor organization did not enjoy majority status, Respondents
.Adley Express Company and Motor Transport Labor Relations, Inc., have engaged
,in and are engaging in unfair labor practices within the meaning of Section 8(a) (3 ),
,(2), and (1) of the Act.
3. By executing and maintaining the aforementioned contract, Respondent Local
161 has engaged in and is engaging in unfair labor practices within the meaning of
'Section 8(b) (1) (A) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, the
Trial Examiner will recommend that they cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
It will be recommended that Respondents Adley and MTLR withdraw all recog-
nition from Respondent Local 161 as the representative of any of Respondent
Adley's clerical employees for the purpose of dealing with them concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, and conditions of
employment, unless and until the said labor organization shall have demonstrated its
exclusive majority representative status pursuant to a Board-conducted election
among Respondent Adley's clerical employees 6 It will also be recommended that
Respondents Adley and MTLR cease and desist from giving any force or effect to
the above-described contract of June 23, 1958. However, nothing herein shall be
construed as requiring Respondent Adley to vary any wage, hour, seniority, or
other substantive feature of its relations with its clerical employees which Re-
spondent Adley has established in the performances of this contract.
It will also be recommended that Respondent Local 161 cease and desist from
acting as the collective-bargaining representative of any of Respondent Adley's
clerical employees unless and until the said labor organization shall have demon-
strated its exclusive majority representative status pursuant to a Board-conducted
election among said employees. It will be further recommended that Respondent
Local 161 refrain from seeking to enforce the collective-bargaining agreement herein
described and entered into on June 23, 1958.
[Recommendations 7 omitted from publication.]
6 Bernhard-Altmann Texas Corporation, 122 NLRB 1289.
In the absence of any evidence that any initiation fees, dues, or other moneys have
actually been paid by any of the clerical employees here involved, the customary recom-
mendation as to reimbursement is not included in these recommendations.
McFarling Bros. Midstate Poultry & Egg Co. and Local 135,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Petitioner. Case No.
35-RC-1529. May 29, 1959
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Upon an investigation of the Employer's objections to conduct
alleged to affect the results of the election held herein, the Regional
123 NLRB No. 165.