Bowman Transportation, Inc.

National Labor Relations Board - Board Decisions

Aug 17, 1955

113 N.L.R.B. 786 (N.L.R.B. 1955)

786 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD--
Bowman Transportation , Inc. and International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL, Local No. 612. Cases Nos. 10-CA-1950 and 10-CA-
1985. August 17, 1955
SUPPLEMENTAL DECISION AND ORDER
On April 22, 1955, the Board issued a Decision and Order in the
above-entitled proceedings, finding, inter alia, that the Respondent
(1) violated Section 8 (a) (3) of the Act by discriminatorily discharg-
ing Welch Gross, and (2) violated Section 8 (a) (2) of the Act by
illegally assisting District 50, United Mine Workers of America,
herein called the UMW, a labor organization not in compliance with
the provisions of Section 9 (f), (g), and (h) of the Act. To effectuate
the finding of discrimination, the Board ordered the Respondent to
reinstate Gross, upon application, to his former or substantially equiv-
alent position. To remedy the effect of the illegal assistance to the
UMW, the Board ordered the Respondent to cease giving effect to its
contract with the UMW and to withdraw and withhold recognition
from the UMW unless and until the UMW shall have been certified by
the Board as the exclusive bargaining representative of the Respond-
ent's employees.
On April 29, 1955, the Respondent filed with the Board a motion
for reconsideration of the Board's Decision and Order. In its mo-
tion, the Respondent urged that Welch Gross be denied reinstatement
because of his participation in certain alleged misconduct during the
course of a strike against the Respondent. On May 11,1955, the UMW
filed an application to modify Board order and supporting argument,
in which it requested that the Board amend its Order by striking there-
from paragraphs numbered 1 (c), 1 (d), and 2 (c), said paragraphs
relating- to the direction that the Respondent cease giving effect to
its contract with the UMW and that the Respondent withdraw and
withhold all recognition from the UMW unless and until said labor
organization has been certified by the Board. For the reasons set forth
below, the Respondent's motion for reconsideration and the UMW's
application to modify Board order are denied.
A. Respondent's motion for reconsideration
The Respondent contends in its motion that Gross participated in
picket-line misconduct which disqualified him for reinstatement, and
further, that Gross should be denied reinstatement because he engaged
in an unlawful secondary boycott of Respondent's customers. Similar
contentions were made by the Respondent in its exceptions to the In-
termediate Report and supporting brief.
113 NLRB No. 83.
BOWMAN TRANSPORTATION, INC. 787-
The Board,' having duly considered the Respondent's motion for
reconsideration of its decision ordering Gross' reinstatement, the mo-
tion is denied on the ground that it raises no issues not previously
considered by the Board.
B. UMTV's application to modify Board order
In its application, the UMW urges that the Board's remedial Order,
directing the Respondent to cease and desist from recognizing the
UMW unless and until it was certified, is unlawful because the Board
has no power under the Act to require that a labor organization par-
ticipate in a Board election before it may represent an employer's
employees, and because the Order penalizes the UMW for its non-
compliance with Section 9 (f), (g), and (h) of the Act.
The UMW, although duly apprised that the General Counsel al-
leged in his complaint that it had been unlawfully assisted by the Re-
spondent, did not file exceptions to the Trial Examiner's finding of
such assistance or to his recommendation that the Respondent with-
draw and withhold recognition from the UMW unless and until it ob-
tained a Board certification. Under the circumstances, we conclude
that ,the application to modify Board order raises issues which should
have been urged as exceptions to the Intermediate Report and that
its filing is therefore untimely.'
However, aside from the application's untimeliness, we are per-
suaded that the contentions raised in, the UMW's moving papers lack
merit. With respect to the Board's power to issue the type of order
here under attack, Section 10 (c) of the Act authorizes the Board, when
it finds that an unfair labor practice has been committed, "to cause to
be served on such person [committing the unfair labor practice] an
order requiring such person to cease and desist from such unfair labor
practice, and to take such affirmative action . . . as will effectuate the
policies of the Act." Pursuant to this congressional mandate, the
Board has, since its earliest days, recognized that the policies of the
Act could best be effectuated in cases involving violations of Section 8
(a) (2) by directing the offending employers to withhold the preferred
treatment afforded to the labor organizations involved until the effect
of the unfair labor practices had been dissipated and the majority
status of such unions had been established in an atmosphere free of
restraint and coercion.
In the case of a dominated labor organization, the Board normally
orders the complete disestablishment of such organization with the
i Section 102 46 of Board Rules and Regulations provides that any party to a com-
plaint proceeding may, within 20 days from the date of service of the order transferring
the case to the Board, file with the Board exceptions to the Trial Examiner 's Interme-
diate Report and Recommended Order.
788 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
result that a dominated union can never be certified by the Board.'
Such orders have successfully withstood challenge before the Supreme
Court which has approved their issuance on the ground that they con-
stituted a valid exercise of the Board's remedial powers under Section
10 (c) of the Act 3 However, in the case of an assisted but undomi-
nated- labor_organization, the Board has required the offending em-
ployer to withdraw and withhold recognition from the assisted union
until it was certified, thus enabling the Board to assure the affected
employees that their statutory right to freely choose a bargaining rep-
resentative shall be preserved by conducting an election under condi-
tions which will render such a choice possible.
It would seem clear, on the basis of the foregoing, that if this Board
possesses the power under Section 10 (c) of the Act to dissipate the
effect of an unfair labor practice by completely removing a dominated
union as bargaining representative of the offending employer's em-
ployees; as the Supreme Court has held, the Board manifestly has the
statutory power to impose the lesser sanction of certification in the case
of an assisted union in order to effectuate the policies of the Act.
In its Decision and Order, the Board concluded that the Respondent
had unlawfully accorded the UMW the status of exclusive bargaining'
representative for its employees. The right to such an exclusive status
derives solely from the Act which we administer 4 To remedy the un- -
fair labor practice here committed, the Board is under a statutory duty-
to insure that that status is acquired free from any assistance by the
respondent.- Section 9 (c) of the Act, embodying the election proce-
dures established by Congress for determining the exclusive majority
representation rights of labor organizations, affords the channel
through which that remedy can be effected. By its Order, the Board
is merely directing that the UMW, like any other assisted union,
demonstrate that its right to be the exclusive representative of the em-
ployees involved has been established in an atmosphere free of re-
straint and coercion.
The UMW also contends in its application to modify Board order
that the order operates to penalize the UMW because of its noncom-
pliance with the provisions of Section 9 (f), (g), and (h) of the Act.
Apparently inherent in this contention is the argument that, as the
UMW did not invoke the Board's processes in these proceedings, the
Board is compounding the sanctions of those provisions by involving-
2 See The Carpenter Steel Company, 76 NLRB 670, 671, Pennsylvania Greyhound Lines,
Inc 1 NLRB 1, enfd 303 U S 261
S See N. L R It v Pennsylvania Greyhound Lines, Inc, footnote 2, supra; N L R. B.
v. Newport News Shipbuilding & Drydock Co ., 308 U S 241
* See National Maritime Union of America v Herzog, 78 F. Supp 146, 156 (D C, D C ),
affd. per curiam 334 U S. 854:
That extraordinary privilege [ of exclusive representative status ] is extended by
statute and except for the Act, employers are not under compulsion to bargain
collectively.
BOWMAN TRANSPORTATION, INC.' 789
the UMW in these cases and requiring certification as a condition of
achieving representative status, a condition which it cannot fulfill
unless it comes into compliance.
Any "penalty" which the UMW conceives has been imposed upon
it because of its inability to achieve certification stems, not from any
action by this Board, but from the UMW's willful refusal to comply
with the provisions of Section 9 (f), (g), and (h). Congress imported
those provisions into the Act,-which require that labor organizations
and their officers file various financial and organizational reports and
non-Communist affidavits, because it believed that "the public, and
particularly the employees in a bargaining unit called on to ballot
concerning the choice of a bargaining agent, have a substantial interest
in knowing pertinent facts concerning the organization which seeks
the statutory privilege of being the exclusive bargaining representa-
tive." s The UMW has chosen not to make those "pertinent facts"
public, but nevertheless desires the exclusive representation rights at
the Respondent's terminals. In answer to a similar contention raised
in National Maritime Union of America v. Herzog,' the court stated :
The argument of the plaintiff [union], which we have summarized
above, concedes that Congress had the right to require the reports
called for by Section 9 (f) but asserts that it had no right to
withhold from a union which refused to file them, the privilege
conferred by the same statute of being chosen as exclusive bar-
gaining agent. The "results that flow" from so doing will be
virtual destruction of the union, plaintiff says. Those results flow,
not from the operation of the statute, but from the plaintiff's will-
ful refusal to furnish information which they admit is consti-
tutionally required. If the plaintiff Union suffers the loss of a
chance to be chosen as exclusive bargaining agent because of its
failure to file the reports exacted by Section 9 (f), the injury
is the result of its own choice in deciding not to file the statements
which it admits are constitutionally required.
In sum, the UMW is here suggesting that the Board do for the
UMW what it would not do for a complying union found to have been
illegally assisted. The very nature of the 8 (a) (2) violation imports
into the Board processes the labor organizations which are so assisted;
and the orders of the Board, directed as they are against offending
employers, necessarily involve those labor organizations. Where a
noncomplying union happens to be the assisted union in such pro-
ceeding, there appears to be no justifiable reason for extending pre-
ferred treatment to it over complying labor organizations by eliminat-
ing the certification requirement in the Board's orders. To do so
6lbad. at p. 155.
6 [bad at p 158
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would negative the policy and intent of Section 9 (f), (g), and (h)
of the Act.
ORDER
IT IS HEREBY ORDERED that the Respondent's motion for reconsidera-
tion be, and it hereby is, denied.
IT IS HEREBY FURTHER ORDERED that the application for modification
of Board order filed by the United Mine Workers of America be, and
it hereby is, denied.
Sparkle Markets Company and Retail Clerks International Asso-
ciation , Local 133 , AFL, Petitioner . Case No. 8-RC-0464. Au-
gust 17, 1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Paul Weingarten,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1.. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following rea-
sons:
The Employer operates a chain of 16 retail grocery stores in the
Pittsburgh, Pennsylvania, area. Thirteen of the stores are located
in Pennsylvania, 1 in Weirton, West Virginia, and 1 each in Steuben-
ville and East Liverpool, Ohio. The Petitioner seeks to represent a
unit of all employees in the grocery, home center, and produce de-
partments of the East Liverpool store, excluding, among others, the
meat department employees. The Employer and the Intervenor con-
tend that the only appropriate unit is one consisting of employees in.
all the Employer's stores.
The Intervenor has bargained for the Employer's employees in a
single multistore unit since 1937. Its current contract is effective'
from October 17, 1954, to October 17, 1956 z The East Liverpool store
is a new operation, first opened for business in March 1955.
1 Amalgamated Meat Cutters & Butcher Workmen of North America , Local 424, herein
called the Intervenor, was permitted to intervene on the basis of its current contractual
interest.
' The Employer and Intervenor contend that this contract is a bar to this proceeding.
In view of our decision in this case , we find it unnecessary to pass upon this question.
113 NLRB No. 87.