Crawford Clothes, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1959

123 N.L.R.B. 471 (N.L.R.B. 1959)

CRAWFORD CLOTHES, INC. 471
Crawford Clothes, Inc. and Robert Cross and Building Mate-
rial Teamsters, Local Union No. 282, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America, Party to the Contract
Building ' Material Teamsters , Local Union No. 282, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America and Robert Cross and Crawford Clothes,
Inc. Cases Nos. 2-CA-5610 and 2-CB-3082. March 31, 1959
DECISION AND ORDER
On November 28, 1958, Trial Examiner Sidney Lindner issued his
'Intermediate Report in the above-entitled proceedings, finding that
the Respondents had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. He also found
that Respondents had not engaged in certain other unfair labor
-practices alleged in the complaint and recommended dismissal of
those allegations. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and a supporting brief, and the Respond-
ents filed' briefs in reply to the General Counsel's exceptions and in
support of the Intermediate Report.
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
Intermediate Report, the exceptions and briefs, and the entire rec-
ord in the case and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the modifications and
exceptions noted below.
We do not agree with the Trial Examiner's conclusion that in
1946 the contract between the Respondent Union and Respondent
Crawford contained a seniority clause by the terms of which sepa-
rate seniority lists, one for drivers and another for helpers, were
established. On the contrary, the record does not contain evidence
of the terms of any collective-bargaining agreement antedating the
'19N-58 agreement, which provides only that "seniority shall pre-
vail" and that any employee who works 10 days in any 2-month
period shall be entitled to a place on the seniority list. We find,
however, as did the Trial Examiner, that Respondent Crawford
and the. Respondent Union did not violate Section 8(a) (1) and (3)
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
( Chairman Leedom and Members Bean and Jenkins].
123 NLRB No. 62.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Section 8(b) (1) (A) and (2) of the Act, respectively, by the
layoff of Cross. For, on the basis of the entire record, we agree with
,the Trial Examiner's ultimate conclusion that the General Counsel
has failed to sustain his burden of proving by a preponderance of
the credible evidence that the Respondents had an unlawful agree-
ment, practice, or arrangement whereby the Respondent Union was
given final and exclusive control over the seniority of Respondent
Crawford's employees.
THE REMEDY
The Trial Examiner found that the collective-bargaining agree-
ment between Respondents by the express terms of Sections 5 and
9, respectively, provided for preferential hiring of members of the
Respondent Union and for membership in the Respondent Union, as
a condition of continued employment, without the 30-day waiting
period required by Section 8(a) (3) of the Act. As recommended
by the Trial Examiner, the Board will order the Respondents to
cease maintaining or enforcing those provisions of the contract
involved herein which have been found to be violative of the Act.
The record shows that, by the unlawful provisions of the contract
involved herein, the Respondents have unlawfully encouraged em-
ployees to join the Respondent Union in order to obtain or maintain
employment, thereby inevitably coercing them into the payment of
initiation fees, union dues, and other sums. In order adequately
to remedy the unfair labor practices found, the Respondents should
be required to reimburse employees of the Company for any ini-
tiation fees or dues, and other moneys, which have been unlawfully
exacted from them as the price of their employment. As part of
the remedy, therefore, we shall order the Respondents, jointly and
severally, to refund to the drivers and drivers' helpers of the Re-
spondent Company all initiation fees, dues, and other moneys paid
by them to the Union as the price of their employment. We believe
that these remedial provisions are appropriate and necessary in
order to expunge the coercive effect of the Respondent's unfair labor
practices.2 The liability of each Respondent for reimbursement shall
begin 6 months prior to the date of the filing and service of the
charge against it, and shall extend to all such moneys thereafter
collected.'
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 :
2 Morrison-Knudsen Compan y, Inc., 122 NLRB 1147.
3 Los Angeles-Seattle Motor Express, Incorporated , 121 NLRB 1629.
CRAWFORD CLOTHES, INC. 473
A. The Respondent, Crawford Clothes, Inc., its officers, agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Maintaining in effect, implementing, or renewing the clauses
of any agreement with the Respondent Teamsters or any other labor
organization which grants preference in employment to members
of said Union or any other labor organization, or which requires
employees to maintain their membership in such labor organization
as a condition of continued employment, except as authorized in
Section 8(a) (3) of the Act.
(b) In any like or related manner interfering with, restraining,
or coercing its employees or applicants for employment in the exer-
cise of the 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 in 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) Post in conspicuous places at its business offices in Long Island
City, New York, copies of the notice hereto attached marked "Ap-
pendix A."' Copies of said notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by
an authorized representative of the Company, be posted by the Com-
pany immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by it to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Post at the same places and under the same conditions as set
forth in (a), above, and as soon as they are forwarded by the Re-
gional Director, copies of the Respondent Union's notice herein,
marked "Appendix B."
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all records, reports, and other
documents necessary to analyze the amounts of moneys due under
the terms of the Order.
(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.
B. The Respondent, Building Material Teamsters, Local Union
No. 282, International Brotherhood of Teamsters, Chauffeurs, Ware-
I 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."
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
housemen and Helpers of America , its officers , representatives,
agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Maintaining in effect , implementing , or renewing the clauses
of the agreement with Respondent Crawford Clothes, Inc., or any
other employer , which require employees or prospective employees
to be members of its organization as a condition of continued em-
ployment and which grants preference in employment to its mem-
bers , except as authorized by Section 8(a) (3) of the Act.
(b) In any like or related manner interfering with, restraining
or coercing employees of Crawford Clothes, Inc., or any other em-
ployer, 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) Preserve and make available to the Board or its agents, upon
request, for examination and copying ,- all records , reports, and other
documents necessary to analyze the amounts of money due under the
terms of this Order.
(b) Post at its offices and meeting halls copies of the notice
attached hereto marked "Appendix B."' Copies of said notice, to
be furnished by the Regional Director for the Second Region, shall,
after being duly signed by Respondent Union's, , representatives, be
posted immediately upon receipt thereof and be maintained by them
for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to members are customarily
posted. Reasonable steps shall be taken to insure that said notices
are not altered , defaced, or covered by any other material.
(c) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto marked "Appendix B" for
posting by Respondent Crawford Clothes, Inc., at its place of busi-
ness in Long Island City, New York, in places where notices to
employees are customarily posted. Copies of said notice , to be fur-
nished by the Regional Director, shall, after being signed by a rep-
resentative of the Respondent Union and the Respondent Employer,
be forthwith returned to the Regional Director for such posting.
(d) Notify the Regional Director for the Second Region in writ-
ing, within 10 days of the date of this Order, as to what steps they
have taken to comply herewith.
C. The Respondent Company, Crawford Clothes, Inc., its officers,
agents , successors , and assigns and the Respondent Union, Building
5 See preceding footnote.
CRAWFORD CLOTHES, INC. 475
Material Teamsters, Local Union No. 282, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
its officers, agents, successors, and assigns shall, jointly and severally,
reimburse the employees and former employees employed as drivers
and drivers' helpers by the Respondent Company for moneys
illegally exacted from them in the manner and to the extent set
forth in the section of this Decision and Order entitled "The
Remedy."
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges that Respondent Crawford violated Section 8(a) (1) and
(3) of the Act and Respondent Teamsters violated Section 8(b)
(1) (A) and (2) of the Act with respect to Robert Cross.
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 our employees that :
WE WILL NOT enter into, maintain in effect, implement, or
renew the clauses of any agreement with Building Material
.Teamsters, Local. Union No. 282, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers.of America,
or any other labor organization which grants preferential em-
ployment to members of such labor organization or which
requires our employees to join or maintain their membership in
such labor organization as a condition of continued employment
unless such agreement has been authorized as provided in the
National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our, employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist
Building Material Teamsters, Local Union No. 282, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment,
as authorized in Section 8(a) (3) of the Act.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL reimburse all employees and former employees em-
ployed by us as drivers and drivers' helpers at Long Island City,
New York, for all initiation fees, dues, or other moneys paid
by them to Local 282 as a condition of membership.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing of Building
Material Teamsters, Local Union No. 282, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or 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.
CRAWFORD CLOTHES,, INC.,
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.
APPENDIX B
NOTICE TO ALL MEMBERS
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 members that :
WE WILL NOT enter into, maintain in effect, implement, or re-
new the clauses of any agreement with Crawford Clothes, Inc.,
or any other employer, which requires employees to join or
maintain their membership in this labor organization as a con-
dition of employment or continued employment unless such
agreement has been authorized as provided in the National
Labor Relations Act, as amended.
WE WILL NOT in any like or related manner restrain or coerce
employees or prospective employees of Crawford Clothes, Inc.,
or any other employer within our territorial jurisdiction over
which the Board would assert jurisdiction, in the exercise of
the rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of em-
ployment as authorized by Section 8(a) (3) of the Act.
WE WILL return to all employees of Crawford Clothes, Inc.,
employed as drivers and drivers' helpers at Long Island City,
CRAWFORD CLOTHES, INC. 477
New York, all initiation fees, dues, and other moneys paid us
by them as a condition of membership.
BUILDING MATERIAL TEAMSTERS, LOCAL
UNION No. 282, INTERNATIONAL BROTII-
ERFIOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF
AMERICA,
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Robert Cross, an individual, herein called Cross,
against Crawford Clothes, Inc., herein called Respondent Crawford, and against
Building Material Teamsters, Local Union No. 282, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called
Respondent Teamsters, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Second Region (New York, New York),
issued an order consolidating the cases, a consolidated complaint and notice of
hearing alleging that Crawford had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat.
136, herein called the Act, and that the Teamsters had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act. Copies of
the charges, the order consolidating cases, the consolidated complaint and notice
of hearing were duly served upon the Respondents and the charging individual,
Cross.
With respect to the unfair labor practices the consolidated complaint alleged in
substance that: (1) At some time during the year 1956, the Respondents entered
into and since that time have maintained in effect and enforced an understanding
and arrangement relating to hire, tenure, terms, and conditions of employment
of Crawford employees, whereby exclusive control over the seniority ranking of
Crawford employees, which seniority ranking determines the employment, order,
duration, and tenure of employment and recall, and the order and duration of
layoff of said employees, has been given and delegated to the Teamsters; (2) on
or about May 10, 1957, Respondent Teamsters caused and attempted to cause
Respondent Crawford to discharge and thereafter fail and refuse to reinstate its
employee Cross because of the maintenance and enforcement of the understanding
and arrangement above described; and (3) the collective-bargaining agreement
entered into between Respondents in 1956 contains, inter alia, provisions which
require the preferential hiring of members of Respondent Teamsters, and also
membership by Respondent Crawford's employees in Respondent Teamsters as a
condition of continued employment by Respondent Crawford and which pro-
visions do not comply with the requirements of Section 8(a)(3) of the Act. In
their . answers the Respondents denied the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held on July 16 and 17, 1957, at New York,
New York, before the Trial Examiner duly designated by the Chief Trial Exam-
iner. The General Counsel and the Respondents were represented by counsel,
Cross representing himself. All parties in the hearing were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, to introduce evidence
bearing on the issues, to argue orally upon the record, and to file briefs and
proposed findings and conclusions.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the hearing the Trial Examiner , in accordance with the then prevailing
Board decisions , denied Respondent Crawford 's motion for production of pretrial
statements given to the General Counsel by the witness Cross. On September 8,
1958, the Trial Examiner issued an order in accordance with the Board 's order in
Ra-Rich Manufacturing Corporation , 121 NLRB 700 , by the terms of which the
General Counsel was ordered to make pretrial statements of witnesses available
to Respondent Crawford and granting Respondent Crawford the right to move
within 15 days to reopen the hearing herein for the limited purpose of further
examining any witness whose pretrial statements were within the scope of the
order. Respondent Crawford having moved to reopen the hearing within the
specified period , the said motion was granted and the hearing was reconvened on
October 27, 1958.
Briefs were received from the various counsel and have been duly considered.
The Respondents ' motions to dismiss are disposed of in accordance with the
determinations below. Subsequent to the close of the hearings , motions were
received from the General Counsel and from counsel for Respondent Crawford
to correct the transcript . No opposition to the said motions has been received
and the said motions are hereby granted.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Crawford Clothes, Inc., is a corporation duly organized under and existing by
virtue of the laws of the State of New York. At all times material herein Re-
spondent Crawford has maintained its principal office and place of business in
Long Island City , New York, herein called the Long Island plant , and various
other plants and places of business , warehouses , and other facilities in the States
of New York, New Jersey , and other States, and is now and has been continuously
engaged at said plants and places of business in the manufacture , sale, and dis-
tribution of clothing , wearing apparel , and related products . In the course and
conduct of its business operations , Respondent Crawford during the past year
caused to be purchased , transferred , and delivered to its Long Island plant, goods
and materials valued at in excess of $ 1,000,000, of which goods and materials
valued at in excess of $500,000 were transported to said plant in interstate com-
merce directly from States of the United States other than the State of New York.
During the same period Respondent Crawford in the course and conduct of its
business operations caused to be manufactured at its Long Island plant products
valued in excess of $ 1,000,000, of which products valued in excess of $200,000
were shipped from said plant in interstate commerce directly to States of the
United States other than the State of New York. It was stipulated at the hearing
and I find that Respondent Crawford is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION
Building Material Teamsters , Local Union No. 282, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , is a labor
organization admitting to membership employees of Respondent Crawford.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
Robert Cross entered Respondent Crawford 's employ in June 1936 as a helper
on a truck . After several months, he obtained a chauffer 's license and was as-
signed to driving a truck, which he continued to do until he entered the armed
services in 1942. Cross returned to his job in 1946, upon his release from the
services . He was laid off by Respondent Crawford in a reduction in force-for a
2-month period sometime between 1948 and 1950 . On May 10, 1957 , Cross was
again laid off in a reduction in force. During the period of his employment,
Cross was 1 of the employees in a unit of truckdrivers and helpers which varied
in size over the years from a maximum of 12, a driver and 2 helpers to each of
4 trucks, to 2, a driver and helper to 1 truck at the time of the hearing. There
has always been a differential between the base pay of drivers and helpers. At
the time of Cross' layoff the base pay for drivers was $90.40 a week, whereas
helpers' base pay was $84 . 40 a week.
CRAWFORD CLOTHES, INC. 479
In the winter of 1946, Respondent Teamsters was designated as the collective-
bargaining representative of the employees in the unit of drivers and helpers.
The most recent collective-bargaining agreement between Respondents was entered
into in 1956, effective from September 1, 1956, to and including August 31, 1958.
In section 5 of the said agreement, labeled "Union Security," it provides among
other things as follows: "Seniority shall prevail. An employee who works 10
days during any two (2) month period shall be entitled to a place on the
seniority list." Section 6, labeled "Stewards," provides that ". . In case of a
slack season he [steward] shall be the last chauffeur to be laid off and under no
consideration shall he be discriminated against." Section 15 is an arbitration
clause. Section 17 grants employees who have been enjoying wages or conditions
more favorable than required by the contract the same differential, it being under-
stood that the contract shall not be construed to permit diminution of any existing
benefit.
Cross testified that prior to the advent of Respondent Teamsters as the collective-
bargaining representative, a single seniority list for both drivers and helpers was
in existence. In a reduction in force in 1937, Respondent Crawford laid off the
person who had the least seniority, without regard to whether he was a driver or
helper.
It was admitted by Cross, however, that in 1946, after the Respondent Teamsters
became the collective-bargaining representative, the contract between it and Re-
spondent Crawford contained a seniority clause by the terms of which separate
seniority lists were established for drivers and another for helpers.
Frank Schwartz, general manager and assistant secretary for Respondent Craw-
ford for 2 and 4 years, respectively, whose duties, among others, include the
hiring and firing of drivers and helpers, testified that during this period there
have always been separate lists of drivers and of helpers for purposes of seniority.
Schwartz stated that seniority lists were not posted but that he kept such lists in
his mind.' Indeed, at some time between 1948 and 1950 when it was necessary
for Respondent Crawford to reduce in force because of lack of work, resort was
had to separate seniority lists for drivers and helpers, with the result that Re-
spondent Crawford laid off Cross for 2 months. Cross complained to the Respond-
ent Teamsters Business Agent Holland at that time and was told that his layoff
came about because there were separate seniority lists for drivers and for helpers.
Cross did not pursue the matter further with Respondent Crawford.
Because of business necessity, Respondent Crawford removed two trucks from
service during 1957. The first was removed in the spring with the resultant layoff
of a driver and a helper 2 and the second on May 10, at which time Cross and
helper Thomas were notified they were being laid off.
Schwartz testified that it was his decision in May 1957 to operate with one truck
less. Schwartz testified further that the determination of seniority for purposes
of reducing in force was based on the seniority within the category of driver and
separately for helper, as it had been during the 4-year period that he was an
officer of Respondent Crawford.3 Schwartz stated that when this decision was
made he told Friedman that Respondent Crawford was "laying off Robbie Cross
and another gentleman [Thomas] at that particular time, and [I] just wanted
to verify with you whether your seniority list compares with mine." Schwartz
denied that when the decision was made to lay off Cross and Thomas he relied
on information supplied to him by Respondent Teamsters.
1 Up to May 1957 and for some time prior , Respondent Crawford had in its employ three
drivers and three helpers.
2 Cross testified that the driver was DeCarlo and the helper LaRusso who were properly
laid off on the basis of either separate lists for drivers and helpers or a single list for both
drivers and helpers.
3If seniority was determined separately for drivers and helpers , with allowance for
superseniority to Shop Steward Friedman, the lists would have been :
Drivers Helpers
1. Friedman 1. Lewter
2. Watson 2. Buchino
3. Cross 3. Thomas
If seniority was determined on the basis of a single list for both chauffeurs and helpers,
the order of seniority would have been : 1. Friedman, 2. Watson , 3. Cross, 4. Lewter,
5. Buchino, and 6. Thomas.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cross testified that when he received the notice of his layoff he asked Schwartz
why he was being laid off since he had more seniority than some of the men who
were retained . Schwartz , according to Cross, replied that he did not have any-
thing against him, but since he had to take a truck out of service , he contacted
Fat 4 who "gave him the names of the two men that were to go." Schwartz com-
mented that it did not make any difference to him who the men were.
Schwartz testified that he told Cross the matter of his layoff "was verified with
the Union , and if he has any further discussion , to discuss it with the Union."
Cross admitted that he did not hear any discussion regarding layoffs between
Schwartz and Friedman , nor did he see Friedman hand Schwartz the names of
the two employees who were to be laid off.
Several days after his layoff , Cross arranged to meet William McKee, Respond-
ent Teamsters ' business agent , at the Crawford plant . Cross complained to McKee
that he was laid off even though he had more seniority than some of the other
men.5 Cross testified that McKee asked how seniority had been established at
the plant. Cross replied that-
as far as [I] was concerned it was a straight seniority list, because [I] had
worked with the Company before the Union came in , and that [I] had
worked as a helper on the trucks , and when some of the men were laid off
and some of the trucks were laid up , that some of the chauffeurs , if they
were older than the helpers, would work as helpers, and [I] wanted to know
why [I ] could not do it now.6
Cross testified that McKee asked the four remaining drivers and helpers as well
as himself how Ray Holland, the previous business agent of Respondent Team-
sters, "established the seniority list," and if it was a separate seniority list. Three
of the men replied that seniority was determined on the basis of separate lists for
drivers and for helpers, one did not answer , and Cross said a single list was the
criterion . Cross further testified that after the poll was completed McKee said
"if it was established that way, that is the way it will be ." Since his layoff on
May 10, 1957 , Cross was offered temporary employment by Respondent Crawford
but did not accept.
Conclusions as to Cross ' Discharge
As hereinabove found, Cross admitted that in 1946 , after the Respondent Team-
sters became the collective -bargaining representative of Crawford 's drivers and
helpers, the contract between it and Respondent Crawford contained a seniority
clause by the terms of which separate seniority lists were established : one for
drivers, another for helpers.
Cross further admitted that when he was laid off by Respondent Crawford some-
time in 1948 or 1950 , it was by application of the separate seniority lists. Indeed,
when Cross at that time complained to his collective -bargaining representative that
his employer had improperly laid him off , claiming he had more seniority than
a helper who was retained , he was told that seniority was determined separately
for drivers and for helpers . Cross did not pursue the matter further.
In Pacific Intermountain Express Company , 107 NLRB 837, the company and
the Teamsters Union entered into a collective agreement which stated:
Any controversy over the seniority standing of any employee on this list shall
be referred to the union for settlement.
Under this grant of authority , the union placed certain drivers on the seniority
list in accordance with the date they joined the union rather than the date they
were employed by the company . As a result of this placement , employees who
joined the union promptly were accorded better employment opportunities than
those who were actually employed by the company at an earlier date but joined
4 This is another name for Friedman , the shop steward of Respondent Teamsters.
It will be recalled that if seniority was determined on the basis of a single list for
both drivers and helpers then Cross would have been senior to helpers Lewter and
Buchino.
9 Cross admitted on cross-examination that in the 1950 reduction in force when he was
laid off before Buchino, he complained to the business agent and was told that the layoffs
were on the basis of seniority established by separate lists for drivers and helpers.
CRAWFORD CLOTHES, INC. 481
the union later. In its decision the Board held that the contract clause violated
the Act. Its theory was that where "an employer delegates to a union the au-
thority to determine the seniority of its employees, or even to settle controversies.
with respect to seniority, such control will be exercised by the union" in a dis-
criminatory manner. The Board went on to conclusively presume-
that such a delegation is intended to, and in fact will, be used by the union;
to encourage membership in the union. Accordingly, the inclusion of a bad-
provision like that in the contract that delegates complete control over sen-
iority to a union is violative of the Act because it tends to encourage mem-
bership in the union.
It is thus clear from the Board's decision that what is prohibited is the granting;
to the union of the power to dominate absolutely the matter of seniority standing,
without any standards and in all circumstances.
In every case since the Pacific Intermountain decision in which the Board has;
found violations of the Act on a claim of delegation, there has been present a;
written agreement between the union and the employer setting forth such an
across-the-board delegation. See Minneapolis Star and Tribune Company, 109
NLRB 727; Northeast Texas Motor Lines, Inc., 109 NLRB 1147, enfd. sub nom.
N.L.R.B. v. Dallas General Drivers, etc., 228 F. 2d 702 (C.A. 5); Chief Freight
Lines Company, 111 NLRB 22; Kenosha Auto Transport Corporation, 113 NLRB
643; Theo. Hamm Brewing Co., 115 NLRB 1157; Interstate Motor Freight Sys-
tem, 116 NLRB 755; Gibbs Corporation, 120 NLRB 1079; Houston Maritime,.
Association, 121 NLRB 389; Meenan Oil Co., Inc., 121 NLRB 580; Kramer Bros..,
Freight Lines, Inc., 121 NLRB 1461.
There is not a scintilla of evidence in the record that in 1946 or thereafter.
Respondent Crawford granted Respondent Teamsters an across-the-board delega-
tion with power to dominate absolutely the matter of seniority, without any stand-
ards and in all circumstances. On the contrary, based on the findings herein-
above made, namely, a change in seniority standards in 1946 in the first collective-
bargaining contract between the Respondents, and again in 1950 when the 1946.
seniority standards were strictly applied in a reduction-in-force situation, and in,
the absence of other evidence, I must presume that the establishment of two
separate seniority classifications, one for drivers, another for helpers, was mutually
arrived at between the parties in a legal manner.
Although Cross' layoff in 1957 was determined on the basis of separate seniority
lists for drivers and helpers,7 the identical standard of seniority which had been:
used in the only other reduction in force since the Respondents have been in con-
tractual relations, the General Counsel does not accept the presumption of con-
tinued legality, but takes the position that on May 10, 1957, the parties came to.
an arrangement and understanding that Respondent Teamsters should have and
did have final and exclusive control over seniority of Crawford employees in,
violation of the Act.8
Even assuming arguendo that on May 10, 1957, Schwartz obtained Cross' name
from the shop steward as one of the men to be laid off that day, is it possible.
to draw the inference from this single incident, in the light of Cross' admissions
set out above, that this was such a "delegation" to Respondent Teamsters which was.
"intended to, and in fact will, be used by the union to encourage membership
in the union"? Pacific Intermountain Express, supra. I conclude that it is not.
Were I to conclude otherwise, it would result in setting up a barrier between an
employer and the majority representative of his employees which would make it
virtually impossible for an employer to contact the union for information in order-
to properly administer a collective-bargaining contract. To place such an obstacle
' It is noteworthy that Cross readily admitted that "if there were separate lists, yes, [I]
was the right man to go."
8 This position is based on Cross' testimony that Schwartz told him "he had contacted
Fat-that is what we call the shop steward-and that he gave him the names of the two.
men that was [sic] to go." I have considered the testimony of Cross and Schwartz which
is in conflict regarding this incident, as well as the correspondence of Respondent-
Crawford's attorney to 'a Board field examiner, which I construe to be admissions, but
find it unnecessary to resolve the conflict in view of the conclusions hereinafter reached.
508889-60-vol. 123-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the path of parties to a collective-bargaining contract would negate the basic
principle of the Act, to promote collective bargaining.
It must also be remembered that all of Crawford's drivers and helpers were
members of Respondent Teamsters. Cross readily admitted that neither Respond-
ent Teamsters nor its business agent discriminated against him for any reason,
but rather processed grievances in his behalf with the Employer when called upon
to do so. So that, even if Respondent Teamsters made the determination that
Cross was the driver to be laid off because of his position on the seniority list,
the reasons it did so were "unrelated to union membership or the performance
of union obligations," 9 and therefore did not tend to encourage or discourage
union membership. I find that the General Counsel has failed to sustain his
burden of proving by a preponderance of the evidence that the parties herein had
an arrangement or understanding whereby Respondent Teamsters was given final
and exclusive control over the seniority of Crawford's employees.
Moreover, when viewed in the context of the separate seniority lists established
by contract between the parties in 1946 and Cross' testimony of the practice re-
sorted to by the Employer in the reduction in force in 1950, the fact that Respond-
ent Crawford went to the Teamsters' shop steward to obtain the names of the
two men who were lowest in seniority, I find, is not at all inconsistent with the
mutual understanding of the parties previously arrived at by legal means.
The Illegal Contract Clauses
The contract between Respondents contains, inter alia, in section 5 and in
section 9, respectively, the following provisions:
The foregoing 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.
Employers shall hire only union loaders when available, and not less than
three men must help the chauffeur or driver to load his truck or automobile.
This provision shall not apply to the unloading of trucks or equipment.
The complaint alleges that at some time during the year 1956, Respondents
entered into, and since that time have maintained in effect and enforced, a col-
lective-bargaining agreement between themselves relating to hire, tenure, terms and
conditions of employment of Crawford's employees which contain, inter alia, the
provisions above set forth and by such acts engaged in unfair labor practices in
violation of the Act.
The agreement between Respondents in evidence reveals that it was to continue
from September 1, 1956, to and including August 31, 1958.
It is the position of the General Counsel that the language quoted above from
sections 5 and 9 of the agreement provides for the preferential hiring of Respond-
ent Teamsters' members and also membership by Crawford's employees in Re-
spondent Teamsters as a condition of continued employment by Crawford without
the 30-day waiting period required by the Act. The General Counsel further con-
tends that even if Respondents intended to consider the said clauses inoperative
and even though they may never have been applied, the mere presence of the
said clauses in the agreement tends to restrain employees in violation of Section
8(a)(1) and (3) and 8(b)(1)(A) and (2) of the Act.
I agree with the contentions of the General Counsel but find also that by the
express terms of the quoted clauses, Respondent Crawford was bound to give
preference in employment to Respondent Teamsters' members and further as a
condition of continued employment, Crawford's employees had to be members of
Respondent Teamsters under conditions which do not comply with the require-
ments of Section 8(a)(3) of the Act.
Since the execution of the 1956 agreement took place prior to a date 6 months
before the filing of the charge against Respondents in the instant case, no finding
g Daugherty Company, Inc., 112 NLRB 986; see also Pacific Maritime Association,
121 NLRB 938.
CRAWFORD CLOTHES, INC. 483
of a violation is made based upon the mere execution of the agreement. I find,
however, that by maintaining in effect and enforcing the above-quoted clauses of
the agreement, Respondent Crawford violated Section 8(a)(1) and (3) and Re-
spondent Teamsters violated Section 8(b)(1)(A) and (2). Heating, Piping and
Air Conditioning Contractors etc., and Dierks Heating Co., Inc., 102 NLRB 1646;
Marley Company, 117 NLRB 107. The purported savings clause in section 5
does not cure the otherwise illegal provisions. Red Star Express Lines of Auburn,
Inc. v. N.L.R.B., 196 F. 2d 78 (C.A. 2), enfg. 93 NLRB 127.
There is no merit to the contentions of the Respondents that the illegal clauses
are neither elaborations nor particularizations of any of the matter contained in
the charge and that such allegations in the complaint are in no way related to
the charge made by Cross and therefore should be dismissed. Section 10(b) does
not require charges to specify or particularize each unfair practice. It is sufficient
that findings are based on conduct which is alleged in the complaint and which
occurred within 6 months preceding the filing and service of the initial charge.
Pacific American Ship Owners Association, et al., 98 NLRB 582; R. H. Osbrink
Manufacturing Company, 104 NLRB 42.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occuring in con-
nection with the operations of Respondent Crawford set forth 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor prac-
tices, I shall recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondents have maintained in effect and enforced a
collective-bargaining agreement which contains clauses for the preferential hiring
of Respondent Teamsters' members and also requires membership by Crawford's
employees in Respondent Teamsters as a condition of continued employment by
Crawford without the 30-day waiting period required by the Act, I shall recom-
mend that they cease and desist from giving effect to those clauses or similar
clauses and from any extension or renewal thereof.
Upon the basis of the foregoing findings of fact and upon the record as a
whole, I make the following:
CONCLUSIONS OF LAW
1. Crawford Clothes, Inc., is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Building Material Teamsters, Local Union No. 282, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By maintaining in effect and enforcing a collective-bargaining agreement
which requires Crawford's employees to be members of the Respondent Teamsters
as a condition of continued employment by Crawford without the 30-day waiting
period required by the Act and which grants preferential hiring to Respondent
Teamsters' members, Respondent Crawford has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act
and Respondent Teamsters has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(b)(1)(A) and (2) of the Act.
4: The unfair labor. practices found herein are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
Respondent Crawford and Respondent Teamsters have not engaged in unfair
labor practices within the meaning of the Act with respect to Robert Cross.
[Recommendations omitted from publication.]