Chicago Freight Car & Parts Co.

National Labor Relations Board - Board Decisions

Jun 7, 1949

83 N.L.R.B. 1163 (N.L.R.B. 1949)

k
In the Matter of CHICAGO FREIGHT CAR & PARTS Co. and TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOCAL UNION No. 910,
AFL and UNITED STEELWORKERS OF AMERICA, PARTY TO THE CON-
TRACT
Case No. 19-CA-13.-Decided June 7, 1949
DECISION
AND
ORDER
On September 9, 1948, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding finding that
the Respondent had not engaged in certain unfair labor practices and
recommending that the complaint be dismissed in its entirety, as set
forth in the copy of the Intermediate Report attached hereto. There-
after the Teamsters filed exceptions to the Intermediate Report and
a supporting brief. The Respondent and the Steelworkers filed briefs
in support of the Intermediate Report and Recommendations of the
Trial Examiner. The Respondent's request for oral argument is
denied inasmuch as the record and the briefs, in our opinion, ade-
quately present the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions, the briefs, and the entire record in the case, and hereby
adopts the findings of fact of the Trial Examiner, vvith the additions
noted below. For the reasons set forth herein, however, the Board
does not adopt the Trial Examiner's conclusions and recommendations,
except with respect to the 8 (a) (2) charge.
The issue to be determined in this proceeding is whether the execu-
tion of the August 18, 1947, memorandum agreement 1 to include pros-
pective employees at the Respondent's contemplated Auburn, Wash-
ington, plant under an existing union-shop contract covering the
Respondent's Pueblo, Colorado, employees, and the subsequent en-
forcement of the union-shop provision at Auburn, violated Section 8
(a) (1), (2), and (3) of the Act.2
1 With respect to the validity of its union-shop provisions , we consider the August 18,
1947 , agreement to be covered by that portion of Section 102 of the amended Act saving
certain agreements entered into after enactment but prior to the effective date of the
1947 Act.
2The complaint in this proceeding alleged violations of Section 8 (a) (1), (2 ), and (3)
of the Act as amended . However , for all purposes material in this proceeding , Section
83 N. L. R. B., No. 167. 1163
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner concluded that a combined unit of Respondent's
employees at its Pueblo and Auburn plants was not inappropriate and
therefore that the extension of the union-shop agreement effected by
the August 18 memorandum was a valid extension of a, valid labor
agreement. We do not agree, because we find that a combined or two-
plant unit would be appropriate in these circumstances only if the
Auburn employees had indicated a desire for such a unit in the exer-
cise of rights guaranteed them in Section 7 of the Act, and that prior
to such indication, and certainly prior to the employment of the
Auburn employees, the extension of the contract was unwarranted.
However, we agree with the Trial Examiner that in signing the
memorandum agreement the Respondent was not giving unlawful
assistance to the Steelworkers within the meaning of Section 8 (a)
(2) of the Act.
We reach our conclusion by interpreting the unit requirement in
the proviso to Section 8 (a) (3)3 in accord with the statutory policy
concerning units set forth in Section 9. That Section, and particu-
larly subsection (b), obviously contemplates a unit determination
which will accord to employees "the fullest freedom in exercising the
rights guaranteed by" the Act. In implementing this statutory pro-
nouncement it is the Board's policy not to sanction the inclusion of a
distinct group of employees, at least where their community of interest
is such that they might alone constitute a separate appropriate bar-
gaining unit, in a larger bargaining group in which they will be a
minority, without some expression of their preference. Where, as
here, a distinct, new group is concerned 4-and there is, as to them,
no bargaining history with its implication of acquiescence in the unit-
the Board affords the new group an opportunity to decide by the vote
8 (1), (2), and ( 3) of the original Act was continued without change in Section 8 (a) (1),
( 2), and ( 3) of the amended Act.
8 "Sec . 8 (a) It shall be an unfair labor practice for an employer * * * (3) by dis-
crimination in regard to hire or tenure of employment or any term or condition of employ-
ment to encourage or discourage membership in any labor organization : Provided, That
nothing in this Act * * * shall preclude an employer from making an agreement with
a labor organization (not established , maintained or assisted by any action defined in
Section 8 ( a) of this Act as an unfair labor practice ) to require as a condition of employ-
ment membership therein * * * (i) if such labor organization is the representative
of the employees as provided in Section 9 (a), in the appropriate collective bargaining
unit covered by such agreement when made ; * * *" ( emphasis supplied).
*With respect to the distinct character of the Auburn group we note particularly (a)
that the Auburn plant is a complete operating unit in itself, separate from rather than
a part of the Pueblo plant , and has, so far as the record discloses , separate immediate
supervision and equal status with the Pueblo plant under the Respondent's general man-
ager in Chicago ; ( b) that the distance between the Auburn and Pueblo plants is great and
the Auburn group was recruited in that area rather than partially from Pueblo as originally
intended . We note also the smaller employee complement at Auburn ; at Pueblo the 60
employed when the Auburn plant was being discussed in July 1947 had grown to 73 at
the time of the hearing , a year later , while the Auburn plant had 55 employees by that
time.
CHICAGO FREIGHT CAR & PARTS CO. 1165
of their own separate majority whether or not they wish to become a
part of the larger group.5
Thus, the attempt by the Respondent and the Steelworkers to make
the as-yet-non-existent Auburn group a minor portion of the existing
Pueblo unit was repugnant to the basic statutory policy. We view
the memorandum agreement of August 18, 1947, as invalid when
executed, because the two-plant unit"covered by such agreement when
made" could not then be the appropriate collective bargaining unit
specified in Section 8 (a) (3) (i) of the Act." Therefore we find that
by entering into the memorandum agreement and by requiring its
Auburn employees to become members of the Steelworkers, the Re-
spondent interfered with, restrained, and coerced its employees in
their choice of representatives in violation of Section 8 (a) (1) of the
Act, and that by discharging Currier and Cavanaugh for their failure
to become members of the Steelworkers, the Respondent discriminated
in regard to the hire or tenure of said employees in violation of Sec-
tion 8 (a) (3) of the Act.
With respect to the Section 8 (a) (2) charge of unlawful support
and assistance we find that the Respondent did not violate the Act by
entering into and giving effect to the August 18, 1947, agreement, as
the record is devoid of evidence that Respondent dominated the Steel-
workers or assisted the Steelworkers in a contest with another union.?
Accordingly, we shall dismiss the 8 (a) (2) allegations of the com-
plaint.
5 See, for example , Matter of Suislaw Forest Products Co., Inc., 55 N . L. It. B. 1115;
Matter of General American Aerocoach Co., 55 N. L. It. B. 1377 ; Matter of The Goodyear
Tire & Rubber Co., 80 N. L . It. B. 1347; Matter of Bercut-Richards Packing Co ., et al.,
67 N. L. It. B. 605 ; Matter of DeMuth G lass Works , Inc., 53 N. L. It . B. 451 and unreported
supplemental decision ; Matter of Chrysler Corporation , 42 N. L R. B. 1145; Matter of
The Texas Co, 63 N. L. It. B 1334; Matter of Riverpoint Finishing Co., 77 N . L. It. B.
1948. Compare Matter of Pepsi-Cola Bottling Co., 55 N. L. It. B. 1183, in which the
Board granted Pepsi-Cola employees a separate election because they had never acquiesced in
their inclusion in a long-standing multi-employer unit.
6 See Matter of Graham Ship Repair Co ., 60 N. L: It. B. 842, and Matter of Albert Love
Enterprises and Foote d Davies, 66 N. L. It. B 416, 422, where contracts were held not
to satisfy the proviso ( then 8 ( 3)) because of the inclusion of employees constituting
eeparate appropriate units, in which the contracting union did not command a majority.
4 Compare Matter of Midwest Piping it Supply Co., Inc., 63 N . L. It. B. 1060 ; Matter of
Ken-Rad Tube and Lamp Corporation, 62 N. L. R. B. 21 , and Matter of Piss Corporation, 43
N. L. It. B 125, in which the respondents were on notice that rival unions claimed a
majority at the time the contracts were executed ; Matter of Angelica Jacket Co., 57
N. L. R B 451, in which the respondent conceded the invalidity of a contract it had
entered into prematurely for a separate , new group , Matter of Julius Resnick, Inc., 74
N. L. It. B. 184, and Matter of Keystone Steel it Wire Co., 62 N. L R. B. 683 ( aff. 332
U. S. 833 ), in which there was evidence apart from the execution of the contract, of em-
ployer assistance or domination ; and Matter of Fairfield Engineering Co., 74 N. L. It. B.
827, in which employer interference was found only as to acts occurring after a rival
union was on the scene.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of the Respondent described in Section I
of the Intermediate Report, 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 thereof.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and take
certain affirmative action which we find necessary to effectuate the
policies of the Act, as amended.
We have found that the Respondent discriminated in regard to the
hire and tenure of employment of LeRoy Currier and Irvin M. Cavan-
augh. In order to effectuate the purposes and policies of the Act, as
amended, we shall order that the Respondent offer to LeRoy Currier
and Irvin M. Cavanaugh immediate and full reinstatement to their
former or substantially equivalent, positions; without prejudice to
their seniority and other rights and privileges, and make them whole
for any loss of pay they may have suffered by reason of the discrimina-
tion by payment to them of a sum of money equal to the amount they
normally would have earned as wages during the period from the date
of the discrimination against them to the date of the offer of the rein-
statement, less their net earnings e during said period. In accordance
with our practice the period from the date of the Intermediate Report
to the date of the Order herein will be excluded in computing the
amount of back pay, since the Trial Examiner did not recommend rein-
statement or an award of back pay.
We have also found that the memorandum agreement between the
Respondent and the Steelworkers dated August 18, 1947, is invalid
because the two-plant unit as created was not then appropriate. In
order to insure to the Auburn employees the full and free exercise of
the rights guaranteed in Section 7 of the Act, we shall order that the
Respondent withdraw and withhold recognition from the Steelwork-
ers as the representative of its Auburn employees for the purpose of
collective bargaining until such time as the Steelworkers may be certi-
"In accordance with the Board' s consistent interpretation this means "former position
wherever possible, but if such position is no longer in existence , then to a substantially
equivalent position." Matter of The Chase National Bank of the City of New York,
San Juan, Puerto Rico Branch , 65 N. L. It. B. 827; Matter of Interstate Engineering
Corporation, 83 N. L. R B. 126.
See Matter of Crossett Lumber Company , 8 N. L. R . B. 440 , 497-498 ; Matter of Colgate-
Palmolive-Peet Co., 70 N. L. R. B. 1202, 1209.
CHICAGO FREIGHT CAR & PARTS CO. 1167
fled as their representative by the Board. We shall also order that the
Respondent cease and desist from giving effect to the memorandum
agreement of August 18, 1947, with the Steelworkers, as well as to any
extension, renewal, modification, or supplement thereof, or to any
superseding contract with that labor organization or any affiliate
thereof, until such time as that organization of an affiliate shall have
been certified by the Board as the representative of the Auburn em-
ployees. Nothing herein, however, shall be deemed to require the Re-
spondent to vary those wage, hour, seniority, and other such substanti-
ative features of its relations with the Auburn employees as the Re-
spondent may have established in performance of the memorandum
agreement of August 18, 1947, or said contract as extended, renewed,
modified, supplemented, or superseded.
Upon the basis of the above findings of fact and upon the entire rec-
ord in the case, the Board makes the following :
CowcuusIONs of LAW
1. The United Steelworkers of America, C. 1. 0., and its Local Union
3356, and Teamsters, Chauffeurs, Warehousemen & Helpers, Local
Union No. 910, A. F. of L., are labor organizations within the meaning
of Section 2 (5) of the Act, as amended.
2. By discriminating in regard to the hire and tenure of employment
of LeRoy Currier and Irvin M. Cavanaugh, and each of them, the
Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act, as amended.
3. By entering into the memorandum agreement of August 18, 1947,
and by requiring its Auburn employees to become members of the Steel-
workers, the Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, as amended, and has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act, as
amended.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 ( 6) and (7) of
the Act, as amended.
5. By the aforesaid conduct in paragraph 3 of these conclusions the
Respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (a) (2) of the Act, as amended.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Chicago Freight
Car & Parts Co., its officers , representatives, successors, and assigns
shall :
1. Cease and desist from :
(a) Recognizing United Steelworkers of America, and any of its
locals, affiliated with the Congress of Industrial Organizations, as the
representative of its employees in the Auburn, Washington, plant for
the purposes of collective bargaining unless and until that organiza-
tion, or any local thereof, shall have been certified by the Board as the
representative of such employees; '
(b) Giving effect to its memorandum agreement dated August 18,
1947, with the United Steelworkers of America on behalf of its Local
Union 3356, or to any extension, renewal, modification, or supplement
thereof, or to any superseding contract with that labor organization
or any orgnization or affiliate thereof, unless and until that organiza-
tion or an affiliate thereof shall have been certified by the Board as the
representative of the employees in the Auburn, Washington, plant;
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the Auburn, Washington, plant, in the exer-
cise of the right to self-organization, to form labor organizations, to
join or assist the Teamsters, Chauffeurs, Warehousemen & Helpers,
Local Union No. 910, affiliated with the American Federation of Labor,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from so doing, all as guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer LeRoy Currier and Irvin M. Cavanaugh immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges;
(b) Make whole LeRoy Currier and Irvin M. Cavanaugh for any
loss of pay they may have suffered by reason of the Respondent's dis-
crimination against them by payment to each of them of a sum of
money equal to the amount which he normally would have earned as
wages during the period from the date of his discharge to the date
of the Respondent's offer of reinstatement, excluding the period from
the date of the Intermediate Report to the date of the Order herein,
less his net earnings during the period for which payment is directed;
(c) Post in conspicuous places in the plants of the Respondent at
Auburn, Washington, and Pueblo, Colorado, copies of the notice, at-
CHICAGO FREIGHT CAR & PARTS CO . 1169
tached hereto, marked "Appendix A." 10 Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and be maintained
by it for at least sixty (60) consecutive days thereafter in conspicu-
ous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material;
(d) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent has engaged in unfair labor practices within the
meaning of Section 8 (a) (2) of the Act, be, and it hereby is, dismissed.
MEMBER MURDOCK , dissenting :
I dissent from the conclusion of my colleagues that the August 18,
1947, memorandum agreement was invalid under Section 8 (a) (1)
and (3) of the Act. In my view the Auburn operation was not a dis-
tinct, separate operation but rather, as described in Respondent's
testimony, a removal of the "plant to the cars rather than the cars to
the plant." On such facts there is no doubt in my mind that had the
Respondent refused to deal with the Steelworkers when they requested
bargaining representation for the Auburn employees because Pueblo
employees were to be moved to Auburn, it would have been subject
to an 8 (a) (5) proceeding under the Act for refusal to bargain with
the representative of its employees. However, Respondent did not
refuse but acceded to the bargaining request and a contract resulted.
Because, on the facts here presented, the Respondent did have a duty
to bargain, I see no reason to disturb that contract.
Moreover, with respect to the unit question which arises here under
the 8 (a) (3) proviso, I would find that a combined Pueblo and Au-
burn unit is appropriate. It is clear under established Board prece-
dent that a two-plant unit might have been appropriate."' I therefore
10 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be Inserted before the words : "A DECISION AND ORDER," the words : "A
DECREE OF THE TJNITED STATES COURT OF APPEALS ENFORCING "
"See Matter of Suislaw Forest Products Co., Inc.; Matter of General American Aero-
coach Co.; Matter of The Goodyear Tire i Rubber Co.; and Matter of Bercut -Richards
Packing Co ., all cited in footnote 5 of the majority opinion. In performing its functions
under Section 9 of the Act, the Board , when it directs a so-called "Globe" election-a di-
rection which would probably have resulted had the facts here considered come to the
Board in a representation proceeding-makes a preliminary determination that either of
the units under consideration may be appropriate.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
see no reason to penalize the Respondent for contracting with respect
to a unit that cannot be said to be inappropriate.
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, we hereby notify our employees that :
WE HEREBY WITHDRAW RECOGNITION from UNITED STEELWORKERS
OF AMERICA, C. I. 0., and any of its local unions, as the exclusive
representative of our Auburn, Washington, employees for the
purpose of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment,
unless and until said organizations and/or any of its local unions
shall have been certified by the Board as the representative of such
employees.
WE WILL NOT give effect to our memorandum agreement signed
August 18, 1947, with UNITED STEELWORKERS OF AMERICA On be-
half of its LOCAL UNION 3356, or to any extension, renewal, modi-
fication, or supplement thereof, or to any superseding contract
with said labor organization unless and until said organization
shall be certified by the Board as the representative of our Auburn
employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our Auburn employees in the exercise of the right
to self-organization, to form labor organizations, to join or assist
the TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS , A. F. of
L., LOCAL UNION No. 910, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from so doing, all as guaranteed in Section 7 of the Act.
WE WILL OFFER to LeRoy Currier and Irvin M. Cavanaugh full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights or privi-
leges previously enjoyed, and make them whole for any loss of
pay suffered as the result of discrimination against them.
CHICAGO FREIGHT CAR & PARTS CO.,
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 other material.
CHICAGO FREIGHT CAR & PARTS CO. 1171
INTERMEDIATE REPORT
Mr. Patrick H. Walker, for the General Counsel.
Mr. Charles D. Preston ( Seyfarth , Shaw & Fairweather ), Chicago, Ill., for
the Respondent. -
Mr. Samuel B . Bassett ( Bassett& Geisness ), Seattle, Wash ., for the Teamsters.
Messrs. Philip M. Curran, of Pittsburgh , Pa., and Hugh Mathews, of Seattle,
Wash., for the Steelworkers.
STATEMENT OF THE CASE
Upon an amended charge filed June 7, 1948, by Teamsters, Chauffeurs, Ware-
housemen & Helpers, Local Union No. 910, AFL, herein called Teamsters, the
General Counsel of the National Labor Relations Board,' by the Regional Director
for the Nineteenth Region (Seattle, Washington), issued a complaint dated
June 9, 1948, against Chicago Freight Car & Parts Company, of Auburn, Wash-
ington, 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 (a) (1), (2), and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, herein called the Act.
With respect to the unfair labor practices, the complaint alleges, in substance,
that the Respondent: (1) in August 1947, entered into an agreement with Steel-
workers requiring membership in that organization as a condition of continued
employment at its Auburn plant, at a time when the Steelworkers did not
represent a majority of the employees within the unit described in the contract,
nor in any unit of Respondent's employees at Auburn appropriate for collective
bargaining; (2) in December 1947, discharged LeRoy Currier and Irvin M.
Cavanaugh because they joined Teamsters and failed to become members of
Steelworkers; and (3) by such conduct has assisted and supported Steelworkers
and has interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed by Section 7 of the Act.
Answers were thereafter filed by the Respondent and Steelworkers, on July
22 and June 21, respectively. Each answer denies the commission of any unfair
labor practices by the Respondent, and sets forth certain affirmative allegations
which will be discussed fully below.
Pursuant to notice, a hearing was held at Seattle, Washington, on July 26,
1948, before the undersigned Trial Examiner, designated by the Chief Trial
Examiner. All parties were represented by counsel ; all participated in the
hearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues. At the
close of the hearing counsel for the Respondent moved that the complaint, in
whole and in part, be dismissed. Ruling was reserved ; disposition of the motions
is made by the findings, conclusions of law, and recommendations appearing
below.
After the receipt of evidence, all counsel argued orally before the Trial Exam-
iner, said argument appearing in the official transcript of the proceedings. Leave
was granted to the parties to file proposed findings of fact, conclusions of law,
and briefs with the Trial Examiner. Briefs have been received from the General
Counsel, the Respondent, and Steelworkers.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following :
i The General Counsel and his representative are herein referred to as the General
Counsel ; and the National Labor Relations Board as the Board.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Chicago Freight Car & Parts Company is an Illinois corporation with its prin-
cipal place of business at Chicago, Illinois. It owns and operates plants in
Chicago, Illinois, in Pueblo, Colorado, and in Auburn, Washington, where it
repairs, converts, and rebuilds railroad cars and railroad car parts.
At its Auburn plant it is engaged in converting rolling stock, commonly called
troop sleepers, into railroad cars to be used by the Alaska Railroad Company,
which is an instrumentality of the Government of the United States engaged in
public transportation in the Territory of Alaska. The Respondent is under
contract with the Alaska Railroad Company to convert, rebuild, and deliver to
it a minimum of 300 railroad cars, which have been and will be transported to its
Auburn plant by common railway carriers in interstate commerce from and
through various States of the United States. Said cars, when rebuilt, have been
and will be transported by common water carrier from the State of Washington
to the Territory of Alaska. The Respondent uses parts and materials in its
operations at its Auburn plant valued annually at about $500,000, of which about
75 percent is caused by it to be transported to said plant from various States of
the United States. The estimated value of its annual sales and services at its
Auburn plant is $1,000,000.
The Respondent concedes that its operations substantially affect commerce
and that it is engaged in commerce, within the meaning of Section 2 (6) of the
Act.'
II. THE ORGANIZATIONS INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No. 910, affiliated
with the American Federation of Labor, and United Steelworkers of America,
affiliated with the Congress of Industrial Organizations, are each labor organiza-
tions within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Events from which the issues stem
The record contains little or no dispute as to the actual events which gave rise
to this proceeding. Most of the major facts found below are contained in a
written stipulation entered into at the hearing by all parties involved.
The Respondent began negotiations for a contract with the Alaska Railroad
Company in February, 1947. In June assurances were received that a contract
would be awarded to it and the final agreement was drawn up about the first of
August. The contract, when awarded, covered the conversion of 400 cars-300
troop sleepers and 100 troop kitchen cars. Since the troop sleepers were already
stored at Auburn, Washington, it was decided to lease a site in that vicinity and
set up equipment there for the work, thus obviating the necessity of moving the
cars to Pueblo, Colorado, for reconversion and then returning them .to Seattle,
the point of delivery called for in the contract. The remaining 100 cars included
' The stipulation also states that the Respondent concedes that it is engaged in com-
merce within the meaning of Section 2 (7) of the Act. Since this subsection refers to
"burdening or obstructing commerce" . . . etc., and since the Respondent 's contention
throughout the hearing was to the effect that it had engaged in no unfair labor prac-
tices, the Trial Examiner believes that inclusion of reference to Section 2 (7) was an
inadvertent error.
CHICAGO FREIGHT CAR & PARTS CO. 1173
in the same contract were to be reconverted at the Pueblo plant, already in
operation, since the cars were then located at that city.
In June the Respondent leased, on a year-to-year basis, certain property at
Auburn for a site. Quonset huts and building materials were obtained in Sep-
tember from a nearby army depot for the housing of machinery. On October 16
the Respondent hired LeRoy Currier, the first of its nonsupervisory employees at
the Auburn site, and on November 3 employed Irvin M. Cavanaugh. Until early
in December Currier, Cavanaugh and a few others employed locally were engaged
mainly in hauling materials to the site and setting up the quonset huts and other
materials.
On or about May 22, 1947, the Respondent and Steelworkers had entered into
a 2-year collective bargaining agreement applicable to the Pueblo operations.
This agreement, inter alia, contained provisions whereby the employer :
(1) Recognized Steelworkers as the exclusive bargaining representative
for all its Pueblo plant employees, excluding those of supervisory, office, and
watchmen duties.
(2) Agreed not to retain in its employ workers who did not become within
30 days after employment, or who ceased to be, members in good standing
of Steelworkers.
In June, General Manager Edward J. England, who has charge of produc-
tion at all the Respondent's shops, asked a number of the experienced employ-
ees at Pueblo if they would be willing to move to Auburn, the plan then being,
as England explained, to transfer "about ten or twelve men" from the Pueblo
shop to Auburn "as gang leaders to educate the men" to be hired locally. Upon
learning of these plans in July, Steelworkers proposed to England that an agree-
ment be entered into covering the Auburn plant "because of employees from
Pueblo going out to Auburn." Following some correspondence, on August 18 the
Respondent and Steelworkers entered into a "Memorandum of Understanding,"
extending all provisions of the Pueblo contract to embrace the Auburn opera-
, tions, although at that time no employees were actually working at Auburn.
As events later developed, due apparently to the increasing demand for new
employees at the Pueblo plant itself, only two Pueblo employees actually were
transferred, temporarily, to Auburn, and of these two one was a foreman, not
covered by the contract. From May, 1948, to the time of the hearing, no em-
ployee from Pueblo was working at Auburn.
In Qctober and November Steelworkers' representatives visited the Auburn
operations, advised the few employees, then engaged in setting up the plant,
of the contract, and distributed among them copies of the contract and mem-
bership application cards. buring the same period, and before December 5, a
Teamsters' representative also visited the operations and solicited bargaining
authorizations from the employees. The evidence is insufficient to support an
accurate finding as to how many employees signed authorization cards for either
labor organization. A proposed Teamsters' contract was left with local man-
agement, which forwarded it to the Respondent's Chicago office. No answer to
the proposal was rieceived by Teamsters. At the time of submitting the contract,
no proof of majority representation was offered by Teamsters.
Currier, at least, was already a member of Teamsters at the time of his em-
ployment. He thereafter passed out cards to other employees openly. There
is no evidence that any management representative interfered with this solicita-
tion.
844340-50-vol. 83---7 i
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 5 the Respondent was informed by letter from Steelworkers that
three employees, including Currier and Cavanaugh, had failed to become mem-
bers of Steelworkers within the 30-day period provided, and was requested to
terminate their employment. Currier and Cavanaugh were thereupon dis-
charged 8
B. The issues
In substance, the General Counsel contends that the "Memorandum of Under-
standing,"' above described, was invalid for the reason that at the time of its
execution there were no employees at the Auburn plant.
In substance, the Respondent and the Steelworkers urge the validity of the
"Memorandum of Understanding," claiming that under all the circumstances the
memorandum constituted a valid extension of a valid labor agreement.
C. Conclusions
The Trial Examiner is unable to find a clear determination of Board policy
in a case where the facts are precisely as revealed here.
It is true that in a long line of cases, (cited by General Counsel in his brief and
beginning with Lenox Shoe Co., Inc., 4 N. L. R B. 372, 386) the Board and the
courts have frowned upon the enforcement of union-security provisions in a
contract with a labor organization which does not represent a free and un-
coerced majority of the employees. Here, however, no claim or evidence exists
that the basic contract at Pueblo was not, in August 1947, a valid labor agree-
ment. In the absence of any contrary evidence, it must be presumed that on
August 18 Steelworkers represented an uneoerced majority at the Pueblo plant
in an appropriate unit.
In effect, then, it appears that General Counsel must rest his case upon the
contention that the Auburn plant is a new, and distinctly separate plant, and
that the Respondent was prohibited, by the Act, from entering into a labor
agreement with any labor organization until new employees were hired and
majority representation established in an appropriate unit.
The Trial Examiner is unable to find, from evidence adduced at the hearing,
that the Auburn plant is a new and distinctly separable plant, and that a unit
combining employees at both plants is inappropriate.
The undisputed facts point,-not to a new enterprise, but merely to an exteu-
sion of the Pueblo operations to quonset huts on property in Auburn acquired by
temporary lease. All subsequent events stem from the execution of the Respond-
ent's single contract with Alaska Railway to repair and convert several hundred
cars. For economic reasons the Respondent planned, to perform part of the work,
covered by the single contract, at its Pueblo plant, already in operation, and the
remainder at Auburn, near which the cars for repair were already situated and
to which they must be delivered. As General Manager England succinctly ex-
pressed it, the Respondent decided to "move the plant to the cars rather than the
cars to the plant." Having arrived at this decision, management approached a
number of its Pueblo employees in exploration of tentative plans to move some
3 There is no evidence as to what happened with respect to the third employee named
in the Union's request
In his brief General Counsel contends-inadvertently, the Trial Examiner believes-
that "entering into the contract in itself is a violation of Section 8 (a) (2) of the Act."
In oral argument the same counsel stated "The sole issue in this case, it appears to
General Counsel, is whether the 'Aleniorandum of Undeistanding' entered into on August
18, 1947, was a legal and binding contractual arrangement The General Counsel contends
that it was not."
CHICAGO FREIGHT CAR & PARTS CO. 1175
of them to Auburn. It was at this point that Steelworkers, already. the legal
bargaining representative of such employees, entered the picture. The' labor
agreement then existing was simply extended, by a "Memorandum of Under-
standing," to include the same category of "maintenance and production" work-
ers at Auburn, where work on the same production contract was to be performed;
although at that time no employees were at Auburn and, in fact, no plant.
The Trial Examiner is unable to read into the conduct of the Respondent, in
thus laying plans for amicable labor relations at its Auburn plant, any ulterior
attempt to deprive either its old or its new, and as yet unhired, employees of
any rights guaranteed by the Act. Had the employer decided to erect new
buildings at Pueblo, to accommodate more machinery and additional employees
to perform similar work on .the Alaska Railway contract, the new employees
clearly would have been subject to the Pueblo contract provisions. No charge
of an unfair labor practice would reasonably have arisen.
It appears that only the element of geographical distance between Pueblo and
Auburn distinguishes this case from that of ordinary plant expansion in one
community. The Trial Examiner is of the opinion, and finds, that this element
is insufficient to stamp the "Memorandum of Understanding" as invalid, and
the Respondent's conduct in enforcing its provisions as illegal.
It is likewise plain that in signing the memorandum the Respondent was not
lending potent assistance to one labor organization in its contest with another,
as was the case in Fiss Corporation,` cited by General Counsel. No contest ex-
isted, since at the time there were neither plant nor employees at Auburn.
Under all the circumstances, the Trial Examiner concludes and finds that the
"Memorandum of Understanding," dated August 18, 1946, was a valid extension
of a valid labor agreement.
It follows that the Respondent's performance of its obligations under that
labor agreement were not violative of the Act.
Therefore the Trial Examiner concludes and finds that the evidence does not
sustain the allegations of the complaint that the Respondent : (1) discriminatorily
discharged Currier and Cavanaugh; (2) assisted and supported Steelworkers,
and (3) interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Chicago Freight Car & Parts Company is engaged in commerce within the
meaning of Section 2 (6) of the Act.
2. Chicago Freight Car & Parts Company has not engaged in unfair labor
practices within the meaning of Section 8 (a) (1), (2) and (3) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
Trial Examiner recommends that the complaint against the Respondent, Chicago
Freight Car & Parts Company, be dismissed in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
0 43 N. L It. B. 137.
1176 DECISIONS OF NATIONAL LABOR RELAT IONS BOARD.
file with the Board , Rochambeau Building , Washington 25, D. C ., an original
and six copies of a statement in writing setting forth such exceptions to the
Intermediate Report and Recommended Order or to any other part of the record
or proceeding ( including rulings upon all motions or objections) as he relies
upon , together with the original and six copies of a brief in support thereof ;
and any party may, within the same period , file an original and six copies of
a brief in support of the Intermediate Report and Recommended Order. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Statements of exceptions and briefs shall designate by precise citation the por-
tions of the record relied upon and shall be legibly printed or mimeographed, and
if mimeographed shall be double spaced . Proof of service on the other parties
of all papers filed with the Board shall be promptly made as required by Section
203.85. As further provided in said Section 203.46 should any party desire
permission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of service of the order
transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and recom-
mended order herein contained shall , as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings , conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington , D. C., this 9th day of September 1948.
• - C. W. WHITTEMORE,
Trial Examiner.