Anderson Express Ltd.

National Labor Relations Board - Board Decisions

Feb 24, 1960

126 N.L.R.B. 798 (N.L.R.B. 1960)

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Anderson Express Ltd. and James McCaffrey and Local Union
295, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America . Case No. 2-CA-6477.
February 24, 1960
DECISION AND ORDER
On September 16, 1959, Trial Examiner Louis Libbin issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.'
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Anderson Express
Ltd., New York, New York, its officers, agents, successors , and assigns,
shall :
1. Cease and desist from :
(a) Maintaining in effect, implementing, or renewing paragraphs
(B), (C) and (D) of Section 6 of the agreement executed on October
8, 1958, with Local Union 295, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America, or from
executing or maintaining in effect any agreement with the above-
named or any other organiaztion containing union-security provisions
not authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
'The Respondent 's request for oral argument is denied as the record, the exceptions,
and the brief , adequately present the positions of the parties.
126 NLRB No. 97.
ANDERSON EXPRESS LTD. 799
(b) In any like or related manner interfering with, restraining, or
coercing its employees or applicants for employment in the exercise
of the right to self-organization, to form labor organizations, to join
or assist Local Union 295, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of mutual aid or protection as guaranteed in Section 7 of the Act,
and to refrain from any and all such activities, except to the extent
that such right maybe affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1950.
2. 'Take the following affirmative action which the Board finds will
effectuate the policies of the Act. '
(a) Reimburse all its employees and former employees for moneys
illegally exacted from them in the manner and to the extent set forth
in the section of the Intermediate Report entitled "The Remedy." 2
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to determine the amounts due under the
terms of this Order.
(c) Post at its place of business in New York, New York, copies of
the notice attached hereto marked "Appendix." 9 Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent, be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to its employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for the Second Region in writing,
within 10 days from the date of this Order, what steps it has taken to
comply herewith.
2 Halben Chemical Co., Inc., 124 NLRB 872.
'In 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."
APPENDIX
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 our employees that :
800 DECISIONS OF.'NATIONAL'LABOR RELATIONS BOARD
WE WILL NOT maintain in effect, implement, or renew para-
graphs (B), (C) and (D) of Section 6 of the agreement executed
on October'8, 1958, with Local Union 295, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America.
WE WILL NOT enter into or maintain in effect any agreement
with the above-named or any other labor organization which con-
tains union-security provisions not authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees or applicants for employment in
the exercise of the right to self-organization, to form labor or-
ganizations, to join or assist Local Union 295, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, to bargain
collectively through representatives of their own choosing and
to engage in concerted activities for the purpose of mutual aid and
protection as guaranteed in Section 7 of the Act, and to refrain
from any and all such activities 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
in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL reimburse all our employees and former employees
who were employed on and after September 1, 1958, for all initia-
tion fees, dues or other moneys paid by them to the above-named
Union as a condition of membership.
All our employees are free to become, remain, or to refrain from
becoming members in good standing of the above-named or of any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
ANDERSON ExPREss LTD.,
Employer.
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by James McCaffrey , an individual, the General Counsel of
the National Labor Relations Board , by the Regional Director for the Second
Region (New York , New York ), issued his complaint , dated April 29, 1959 , against
ANDERSON EXPRESS LTD. 801
Anderson Express Ltd., herein called the Respondent. With respect to the unfair
labor practices, the complaint alleges, in substance, that: (1) Respondent executed
an invalid union-security agreement on October 8, 1958, effective from September 1,
1958, with Local Union 295, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the Union; (2) Respondent has
maintained in effect and enforced said agreement since said date; ( 3) since on or
about October 8, 1958, Respondent's employees have paid dues and initiation fees
pursuant to the terms of said agreement; and (4) by the foregoing conduct Re-
spondent has engaged , and is engaging , in unfair labor practices within the meaning
of Section 8(a) (1) and (3) and Section 2(6) and (7) of the National-Labor Rela-
tions Act, 61 Stat. 136, herein called the Act. In its duly filed answer, Respondent
denies the unfair labor practice allegations. As affirmative defenses, the answer
alleges (1) that prior to September 1, 1958, Respondent's employees were members
of the Union under a collective-bargaining agreement then in force between the
Union and the former employer of Respondent's employees; (2) on September 1,
1958, Respondent acquired the trucking activities of said former employer and,
pursuant to the aforementioned agreement and in order to protect the rights of the
employees under said agreement, executed the agreement alleged in the complaint
which was similar to the agreement then in force between the Union and the
former employer; (3) since on about October 8, 1958, Respondent has paid contribu-
tions to the Union's Health & Welfare Fund and Pension Fund for the benefit of
the employees covered by said agreement; and (4) if such agreement is invalid and
violative of the Act, Respondent should be reimbursed for said contributions.
Pursuant to due notice, a hearing was held on July 8, 1959, at New York, New
York. The General Counsel and the Respondent were represented at the hearing.
All parties were afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce relevant evidence, to present oral argument at the close of
the hearing, and thereafter to file briefs as well as proposed findings of fact and
conclusions of law. After the close of the hearing, the General Counsel and the
Respondent filed briefs, which I have fully considered.
During the course of the hearing I reserved ruling on Respondent's motion to
dismiss the complaint on the alleged ground that the charge is insufficient to support
the complaint issued by the General Counsel. The charge against the Respondent,
filed on March 13, 1959, alleges that Respondent had engaged and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act
by discharging James McCaffrey because of his union membership and activities and
has interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act by the foregoing conduct "and by other acts and
conduct." On April 30, 1959, the Regional Director sent a letter to the Charging
Party, with a copy to Respondent, in which he stated that he was refusing to issue
a complaint with respect to the allegation of the discriminatory discharge of James
McCaffrey because "it does not appear that there is sufficient evidence of violations
to warrant further proceedings with respect to this allegation in the charge" but
that "we are, however , processing the remaining allegations of the unfair labor
practice charge and are issuing a complaint thereon." As previously noted, the
complaint contains no allegation of discrimination against James McCaffrey, the
Charging Party, but alleges a violation of Section 8(a)(1) and (3) of the Act only
in the execution , maintenance, and enforcement of an unlawful union-security agree-
ment and the payment by employees of dues and initiation fees pursuant to said
agreement. Upon practically identical facts, the Board has held that "the general
allegations in the charges support the inclusion in the complaint of the allegations
pertaining to the unlawful contracts within the period commencing 6 months before
the filing of the charges, as these allegations merely define more precisely conduct
of the Respondent alleged in the charges to infringe rights guaranteed by Section 7
of the Act in violation of Section 8(a)(1) and (3)." Triboro Casting Corporation,
117 NLRB 775, 776-780, enfd. 251 F. 2d 959 (C.A. 2). Accordingly, I now deny
Respondent's motion to dismiss the complaint.'
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a New York corporation with its principal office and place of business
at New York International Airport in New York City, is engaged in the business of
i See N L R B. v. Pant Melting Co , 360 U.S. 301, 307-308, as to the function of a
charge in Board proceedings.
554461-60-vol. 12 6-5 2
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
providing and performing trucking and delivery services and related services. On
September 1, 1958 , Respondent began performing services for Air Express Interna-
tional , Inc., an enterprise which derived in excess of $50 ,000 from transportation
operations in interstate commerce during the year ending March 31 , 1959. During
the 6 months preceding March 31, 1959, Respondent performed services, valued in
excess of $25,000 , for Air Express International, Inc.
Upon the above-admitted facts, I find that Respondent is engaged in commerce
within the meaning of the Act and that the Respondent 's operations fall within the
jurisdictional standards for the assertion of the Board 's jurisdiction.
IT. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the record shows, and I find, that Local Union 295, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The only issues in this case are whether Respondent executed and maintained in
effect an agreement containing illegal union-security provisions and has checked off
dues and initiation fees pursuant to said agreement , in violation of Section 8(a)(1)
and (3 ) of the Act.
B. The undisputed facts
The facts giving rise to the issue in this case are not in dispute. Prior to Sep-
tember 1, 1958, Respondent had no collective-bargaining agreements with any union.
On September 1, 1958, Respondent acquired the trucking activities of Air Express
International and on that date hired the employees employed in such activities for
Air Express International. Respondent had also agreed that it would execute a
contract with the Union covering these employees "exactly similar to the one"
which was in effect between the Union and Air Express International and under
which these same employees were working for Air Express International.
As previously stated, Respondent engaged in these new operations on September
1, 1958, with the men previously employed in such activities with Air Express
International. On October 8, 1958, Respondent executed a collective-bargaining
agreement with the Union, effective from September 1, 1958, through August 31,
1960, and has since maintained said agreement in effect. This agreement contains
the following pertinent union -security provisions:
SECTION 6. Union Security
(B) The employer agrees to a Union Shop.
(C) The superintendent or man in charge shall immediately, upon employ-
ment, notify the job steward or the Union if there is no job steward of the
employment of any man who, under this agreement , is required to be a
member of the Union. Upon notice from the Union that any employee who
has been employed for more than thirty (30) days has failed to tender the
periodic dues and initiation fees uniformly required as a condition of requiring
and retaining membership, the employer agrees to discharge such employees
within seven (7) days after the receipt of a written notice from a properly
authorized official of the Union.
(D) The paragraphs of this section shall be subject to the Union's right to
require only members in good standing to be retained in employment and to be
hired to fill vacancies in the event that this is not in conflict with the law at
any time during the term of this agreement.
(E) In the event of any change in the law during the term of this agreement
the Employer agrees that the Union will be entitled to receive the maximum
Union security which may be lawfully permissible.
C. The illegal union-security provisions
The General Counsel contends that these paragraphs contain provisions which
exceed the permissible union-security limits prescribed in the proviso to Section
8(a) (3) of the Act and hence are unlawful . I agree. Employees are entitled, under
Section 8(a)(3) of the Act, to a 30-day grace period from the date the agreement
ANDERSON EXPRESS LTD. 803
actually became effective, which is the execution date of October 8, 1958, and not
the retroactive effective date of September 1, 1958.2 As the 30-day grace period in
paragraph (C) runs from the date of employment, it does not accord to nonunion
members who were employees when the agreement was executed the required
statutory grace period, and hence is unlawful.3 Moreover, since the agreement is
made retroactive to September 1, 1958, this paragraph conditions the continued
employment of those union members who were employed prior to October 8, 1958,
the execution date of the agreement, upon the payment of union dues for the period
during which there were no contractual obligations to pay dues to, or become a
member of, the Union and hence is unlawful for this reason also. Indeed, under
this clause, even employees hired after the execution date of the agreement could
be required, as a condition of continued employment after 30 days, to pay dues
for the first 30 days of their employment although they were not members of the
Union during that period.
Respondent contends in its brief that paragraph (D) is qualified by the require-
ments of paragraph (C). However, the express language of paragraph (D) is
directly the opposite, that is, that paragraphs (B) and (C) are subject to the provi-
sions of paragraph (D). The provisions of paragraph (D) together with paragraph
(B), require the Respondent to condition the hiring and retention of employees upon
their membership in good standing in the Union without complying with the require-
ments of the proviso of Section 8(a) (3) of the Act .4
I find that paragraphs (B), (C), and (D) of the agreement, together, create
unlawful union-security provisions and that the illegality is not cured by the pur-
ported savings clause contained in paragraph (D).5 I find, in accordance with long
and well-established precedents, that by executing and maintaining in effect the
agreement of October 8, 1958, containing the above unlawful provisions, Respondent
has violated Section 8(a) (1) and (3) of the Act.6
D. Checkoff of union dues
The Respondent stipulated that employees' union dues were checked off monthly
and turned over to the Union by the Respondent, pursuant to the terms of the
aforestated unlawful agreement. "The checking off of dues from employees covered
by the unlawful union-security agreement which served to coerce such payments con-
stituted discrimination in regard to an important condition of employment, i.e.,
wages." 7 Accordingly, I find that by such conduct Respondent further violated
Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent set forth in section 1, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent has violated Section 8(a)(1) and (3) of the Act
by executing and maintaining in effect 'a contract containing illegal union-security
provisions and by checking off employees' union dues pursuant to the terms of said
2 Associated Machines, The., 114 NLRB 390, 402-403, enfd. 239 F. 2d 858 (C.A. 6) ;
Seaboard Terminal and Refrigeration Company, 114 NLRB 1391, 1393-1394; Tacoma Har-
bor Lumber and Timber Co., 108 NLRB 912, 916.
8 Ibid; United Electrical, Radio and Machine Workers et at., 9'8 NLRB 664, 671; John
B. Shriver, an Individual d/b/a John B. Shriver Company, 103 NLRB 23, 38 footnote 7.
' Crawford Clothcs, Inc., 123 NLRB 471.
6 N.L R B. v. Red Star Express Lines of Auburn, Inc., 196 F. 2d 78, 181 (C.A. 2) ;
N L.R B. v. Gaynor News Company, Inc., 197 F. 2d 719, 724 (C.A. 2), affd. 347 U.S. 17;
Gottfried Baking Co., Inc. et al. v. N.L.R.B., 210 F. 2d 772, 777, 780 (C.A. 2).
$Although such conduct has also been held to violate Section 8(a)(2), I make no
such finding because the complaint did not allege a violation of Section 8(a) (2).
1 Masters-Lake Success, Inc., 124 NLRB 580.
804 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
agreement, I will recommend that it cease and desist from giving effect to these
unlawful provisions or to any extension or renewal thereof.
By the unlawful provisions of the contract, the Respondent has unlawfully
encouraged employees to join and maintain their membership in the Union in order
to obtain and maintain employment, thereby inevitably coercing them into the pay-
ment of initiation fees, union dues or other moneys. Under these circumstances, I
find it appropriate and necessary in order adequately to remedy, and to expunge
the coercive effect of, Respondent's unfair labor practices and to effectuate the
policies of the Act, to recommend that Respondent refund to its employees and
former employees who were employed on and after September 1, 1958, all initiation
fees, dues, or other moneys paid by them to the Union pursuant to the unlawful
union-security agreement as the price of their employment .8
The Respondent contends that it would be inequitable to apply this remedy 91
because the complaint contained no allegation that such conduct was also violative
of Section 8(a) (2) of the Act and because the Union is not joined as a party
Respondent. Failure to allege a violation of Section 8(a)-(2) is taken into considera-
tion with respect to another aspect of the remedy. Thus, where, as here, no 8(a) (2).
allegation appears in the complaint, the Board merely orders a Respondent to cease
giving effect to the illegal union-security provisions; whereas in those cases where
the complaint does contain such an allegation, the Board orders a Respondent to,
cease giving effect to the entire contract. The Union cannot, under the statute, be
joined as a Respondent where, as here, no charge has been filed against it. And
neither the General Counsel nor the Board has any control over the filing of such
a charge. The Board has therefore applied the Brown-Olds remedy against an
employer, even in the absence of a charge against the labor organization which was.
a party to the unlawful contract.10 Indeed, the only exception which the Board
has made to the application of this remedy to a Respondent found to have entered
into and maintained in effect an unlawful union-security agreement, is where the
illegality stems solely from a failure to comply with the 9(f), (g), and (h) filling
requirements of the Act."
Nor is there any merit to Respondent's further contention at the oral argument
that it should be credited with the sums which Respondent paid into the Union's
Health, Welfare & Pension Funds on behalf of its employees pursuant to the terms
of the agreement. Such payments constitute part of the wage structure,12 and are
entitled to no different consideration than any wage increase accorded to the employ-
ees by Respondent.
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. Anderson Express Ltd., is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local Union 295, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America is a labor organization within the meaning of
Section 2(5) of the Act.
3. By executing and maintaining in effect an agreement with the above-named
Union which contained union-security provisions not authorized in Section 8(a)(3)
of the Act, and by checking off employees' dues pursuant to said agreement, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) and (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.
[Recommendations omitted from publication.]
s Crawford Clothes, Inc, 123 NLRB 471.
9 'Commonly referred to as the Brown-Olds remedy because it was first applied in United
Association of Journeymen & Apprentices of Plumbing & Pipefltting Industry of the United
States and Canada, Local 231, AFL-CIO (J. S. Brownf-E. F. Olds Plumbing & Heating
Corporation), 115 NLRB 5'94, 597-602
10 See,' e g., Honolulu Star Bulletin, 123 NLRB 395 .
n Ph,ladelphia Woodwork Company, 121 NLRB 1642.
"See, e g , Inland Steel Company, 77 NLRB 1, affd. 170 F. 2d 24'7 (CA. 7), cert.
denied 336 U S 960; W. W. Cross and Company, Inc. v. N L.R.B , 174 F. 2d 875 (C A. 1),