District No. 9, Int'l Association of Machinists

National Labor Relations Board - Board Decisions

Dec 19, 1961

134 N.L.R.B. 1354 (N.L.R.B. 1961)

1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations 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 commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it
will be recommended that it be ordered to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
As the Respondent has not accepted the unconditional offers of the strikers to
return to employment, it will be recommended that it offer to Ortiz, Vigil, and
Archuleta immediate and full reinstatement each to his former or substantially
equivalent position and that it be required to make Griego, Ortiz, Vigil, and Archu-
leta whole for any loss of pay suffered by reason of the failure to reinstate them or
any of them from the earliest date that each applied for reinstatement to the date
when such offer is made. In the case of Griego, a valid offer of reinstatement having
been made on May 25, 1961, no further such offer need be held out and loss of
earnings for Griego shall be calculated to May 25, 1961. As the unfair labor prac-
tices found indicate a propensity on the part of the Respondent to disregard the re-
quirements of the Act, a broad remedy will be recommended.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By failing to accept the unconditional offers of Griego, Ortiz, Vigil, and
Archuleta to return to work and by failing to offer them their former or substantially
equivalent positions upon such applications, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
District No. 9, International Association of Machinists, AFL-
CIO and Greater St. Louis Automotive Trimmers and Uphol-
sterers Association , Inc. and Greater St. Louis Automotive
Association , Inc., Party to the Contract . Case No. 14-CE-5.
December 19, 1961
DECISION AND ORDER
Upon charges duly filed by the Greater St. Louis Automotive
Trimmers and Upholsterers Association , Inc., herein called the
Trimmers Association , the General Counsel of the National Labor
Relations Board , by the Regional Director for the Fourteenth Region,
on December 20, 1960, issued a complaint alleging that District No. 9,
International Association of Machinists , AFL-CIO , herein called the
Respondent , had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8 (e) and Section 2(6) and (7)
of the National Labor Relations Act, as amended . Copies of the
134 NLRB No. 138.
DISTRICT NO. 9, INT'L ASSOCIATION OF MACHINISTS 1355
charge, complaint, and notice of hearing were duly served upon the
the Respondent, and copies of the complaint and notice of hearing
were duly served upon the Charging Party, and upon Greater St.
Louis Automotive Association, Inc., herein called the Car Dealers
Association, a Party to the Contract.
With respect to the unfair labor practices, the complaint alleges,
in substance, that the Respondent and members of the Car Dealers
Association have reaffirmed and are continuing to maintain and give
effect to a contract clause, pursuant to which the members of the Car
Dealers Association have ceased or refrained, and have agreed to
cease and refrain, from handling, using, selling, transporting, or other-
wise dealing in the products of other employers, or from doing business
with other persons.
On January 25, 1961, all parties to this proceeding entered into a
stipulation of facts, and on the same date jointly agreed to transfer
this proceeding directly to the Board for findings of fact, conclusion
of law, and decision and order. The stipulation states, in substance,
that the parties have waived their rights to a, hearing before a Trial
Examiner, and to the issuance of an Intermediate Report, and pro-
vides, further, that the charges, complaint, and stipulation of facts
constitute the entire record in the case. On February 1, 1961, the
Board approved the stipulation, ordered ,the transfer of the proceed-
ing to the Board, and granted permission to the parties to file briefs.
The General Counsel filed a brief and proposed conclusions of law,
and the Respondent filed a motion to dismiss. On February 6, 1961,
the Board approved a stipulation of corrections to stipulation of the
record, and on July 27, 1961, the Board approved -an amendment to
the stipulation of record filed by the parties on July 24, 1961.
Upon the basis of the parties' stipulations, the General Counsel's
brief and proposed conclusions of law, and the entire record in the
case,' the Board makes the following :
FINDINGS OF FACT
1. COMMERCE
The Car Dealers Association is a nonprofit corporation duly organ-
ized under and existing by virtue of the laws of the State of Missouri.
It is an employer association consisting of firms in the St. Louis,
Missouri, area, and was formed for the purpose of, and has continu-
ously engaged in, collective bargaining for its member companies.
The member companies of the Car Dealers Association are engaged
i Respondent 's motion to consolidate the instant proceeding with Automotive, Petroleum
& Allied Industries Employees Union, Local 618, affiliated with International Brotherhood
of Teamsters , Chauffeurs, Warehousemen & Helpers of America (Greater St Louis Auto-
motive Trimmers and Upholsterers Association, Inc ), 134 NLRB 1363, for the purpose
of decision is hereby denied , inter alia, because of the dissimilarity of issues presented in
the cases and diversity of parties.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in selling and servicing automobiles and automotive parts. During
the past year the member companies of the Car Dealers Association
.conducted a gross volume of business exceeding $500,000, and, during
the same period, purchased and received goods valued in excess of
$50,000 directly from points outside the State of Missouri. The
parties stipulated, and we find, that the Car Dealers Association is
engaged in commerce within the meaning of Section 2(6) and (7) of
the Act 2
II. THE LABOR ORGANIZATION INVOLVED
District No. 9, International Association of Machinists , AFL-CIO,
is a labor organization as defined in Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
The facts, as stipulated, show that on or about August 15, 1959,
the Respondent and the Car Dealers Association negotiated a contract
which was thereafter signed individually by various members of the
Car Dealers Association, including Gene Jantzen Chevrolet Company.
The contract contained the following clause:
ARTICLE XXIX
Subcontracting Work
SECTION I. Whenever the Employer finds it feasible to send
work out that comes under the jurisdiction of the Union and this
contract, preference must be given to such shop or subcontractors
approved or having contracts with District No. 9, International
Association of Machinists.
On October 6, 1960, the Respondent requested that the Car Dealers
Association, under the terms of the contract, mediate the alleged vio-
lation of article XXIX by Gene Jantzen Chevrolet Company. Pur-
suant to the request of the Respondent, the mediation panel, consisting
of three representatives of the Respondent and three representatives of
the Car Dealers Association, met on October 26, 1960. The Respond-
ent alleged at the meeting that Gene Jantzen Chevrolet Company was
violating article XXIX by failing to give preference to subcontractors
having contracts with the Respondent in the subcontracting of auto
trim work to members of the Trimmers Association. The Respondent
requested the mediation panel to find that Gene Jantzen Chevrolet
Company had breached article XXIX and to instruct members of the
Car Dealers Association that they are to comply with its terms. On
2 For jurisdictional purposes , it is sufficient , as we find , that the Car Dealers Associa-
tion was .party to the contract with the Respondent Union . Cf. General Drivers, Chauf-
feurs and Helpers, Local anion No. 886, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (James D . O'Dell and
H. H. Hulme, Jr., Ada Transit Mix), 130 NLRB 788.
DISTRICT NO. 9, INT'L ASSOCIATION OF MACHINISTS 1357
November 2, 1960, the mediation panel unanimously decided that
article XXIX was binding on all members of the Car Dealers
Association.
The General Counsel, in his brief, contends that article- XXIX
requires the Car Dealers Association and its members to cease or re-
frain from doing business with other persons within the meaning, of
Section 8 (e) of the Act, as amended.' He contends that the questioned
clause limits the right of the Car Dealers Association members to sub-
contract work, in that such subcontracting can be done only with
employers having a collective-bargaining agreement with or "ap-
proved" by the Respondent, and thus abdicates to the Respondent the
right of the Car Dealers Association's members to determine with
whom they will do business. The General Counsel reasons that in
view of the Respondent's interest in having subcontracted work done
by its members, it is highly unlikely that the Respondent would ap-
prove a nonunion subcontractor, and that since the Car Dealers Asso-
ciation and its members cannot compel a subcontractor to hire members
of the Respondent, the only recourse available to the members of the
Car Dealers Association is to cease dealing with subcontractors or
subcontractors not ".approved" by the Respondent until such time as
economic pressures force the subcontractor to seek . collective-
bargaining agreements with the Respondent.
The General Counsel contends further that by the action of the
mediation panel on November 2, 1960, the parties reaffirmed and con-
tinued to maintain and give effect to article XXIX, and by so doing
"entered into" an implied agreement within the meaning. of Section
8(e). The General Counsel does not allege that the contract executed
on August 15, 1959, was entered into in violation of Section 8 (e), but
does maintain that article XXIX was incorporated by reference into
the implied agreement of November 2, 1960, and that article XXIX
is properly introduced for the sole purpose of evidencing the terms of
the new implied agreement and to prove its violative nature.
The Respondent, in its motion to dismiss, contends that article
XXIX is not in violation of Section 8(e), and that the activities of
the Respondent do not have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and do not
constitute unfair labor practices affecting commerce within Sections,
8(e) and 2(6) and (7) of the Act.
s Section 8(e) provides in pertinent part:
It shall be an unfair labor practice for any labor organization and any employer to
enter into any contract or agreement, express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from handling , using, elling, 'trans-
porting or otherwise dealing in any of the products of any other employer, or` to
cease doing business with any other person , and any contract or agreement entered
into heretofore or hereafter containing such an agreement shall be to such extent
unenforcible and void. . . .
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article XXIX specifies that the employer must, in the contracting
out of work, give preference to a shop having a contract with the
Respondent, or to a shop approved by the Respondent. The record
indicates that the Respondent apparently refused to approve and
then sought mediation of an alleged violation of article XXIX by one
member of the Car Dealers Association who failed "to give preference
to subcontractors having contracts with the Respondent in subcon-
tracting auto trim work to members of the Charging Party. . . 4
The record further indicates that the mediation panel found article
XXIX binding on all parties. The effect of article XXIX, then, as
written and interpreted by the parties, is the cessation of business
between the contracting employers and subcontractors not under con-
tract with the Respondent.
The contract clause which prohibits, limits, or restricts subcontract-
ing of work ordinarily performed by employees in the unit covered
by the contract is fairly common in modern collective-bargaining
agreements 5 Generally, the purpose and object of such restrictions
is to preserve the jobs and job rights of the employees in the unit
covered by the contract. We do not in this case decide whether such
contract clauses are lawful or unlawful. However, article XXIX is
more than a restriction on subcontracting for the preservation of jobs
and job rights of employees. Article XXIX allows subcontracting
of work ordinarily performed by employees covered by the contract.
It limits the persons with whom the employer can do business. We
see no meaningful distinction between a contract which prohibits
an employer from handling products produced by a nonunion firm
and a contract which causes an employer to cease subcontracting work
to a nonunion firm. Both clearly contravene Section 8(e). We find,
therefore, that article XXIX, as written, construed, and given effect,
by the parties, was intended to cause a cessation of business between
the Car Dealers Association and its members and members of the
Trimmers Association who were not parties to a contract with the
Respondent, and hence falls within the proscriptive purview of Sec-
tion 8 (e) of the Act.'
No unfair labor practice arises under Section 8 (e) unless a labor
organization and an employer "enter into" a proscribed contract. The
contract between the Respondent and the Dealers Association and its
members containing article XXIX became effective as of August 15,
1959. Section 8(e), which became effective on November 13, 1959,
*Stipulation of the record, p 4, par. XII
6 For a more complete discussion of the scope and frequency of such contracts see
Lunden, Subcontracting Clauses in Major Contracts, 84 Monthly Labor Rev, p 579 (1961).
6rth0hwayTruck Drivers and Helpers, Local 107, International Brotherhood; of -Team-
sters, dhauffeurs, warehousemen and Helpers of America, Independent (E. A. Gallagher t
Bona ), 131 NLRB 925.
DISTRICT NO. 9, INT'L ASSOCIATION OF MACHINISTS 1359
states that "any contract or agreement entered into heretofore or here-
after containing [a proscribed contract clause] shall be to such extent
unenforcible and void . . . ." Hence, article XXIX became unen-
forcible and void on November 13, 1959.
The General Counsel contends that the parties by action of the
mediation panel "entered into" an implied agreement on November 2,
1960, which incorporated article XXIX by reference. The complaint
alleges that by the action of the Car Dealers Association and Respond-
ent they have "reaffirmed and are continuing to maintain and give
effect" to article XXIX. The question presented is whether the par-
ties, by so agreeing that article XXIX was binding on all members of
the Car Dealers Association, did reaffirm, maintain, and give effect to
article XXIX, already rendered void and unenforcible by operation
of law, and thus did "enter into" a proscribed agreement under Sec-
tion 8 (e) after the effective date of that section.
With the passage of the Labor-Management Reporting and Dis-
closure Act of 1959, Congress in broad terms made the "entering into"
of contracts such as article XXIX an unfair labor practice under
Section 8(e) and also made attempts to secure such contracts by
threats, restraint, or coercion of any person engaged in commerce a
separate unfair labor practice under Section 8(b) (4) (A).
As noted, all such contracts entered into prior to and after the
effective date of the amendments were made unenforcible and void.
Thus, it is plain that Congress was legislating to eradicate any form,
existence, or enforcement of such contracts as against public policy,
with the exception as provided for the garment and construction
industries.' We do not think that Congress intended to leave a gap,
whereby contracts executed prior to the effective date of the amend-
ments and rendered void and unenforcible as between the parties by
the passage of the amendments, would continue to be lawful agree-
ments for unfair labor practices purposes simply because they were
executed prior to the effective date of -the amendments but were 're-
affirmed, maintained , or given effect after the effective date of Section
8(e).
The very language of Section 8(e) which proscribes the "entering
into" of contracts or agreements , express or implied, is broad and
* The legislative history of the Landrum-Griffin Act reveals clearly that one of the
purposes of Congress was to close the "loophole" created by Local 1976, United Brother-
hood of Carpenters & Joiners of America, AFL-CIO, at al v. N.L R.B., 357 U.S. 93, in
which, briefly stated, the execution or more existence of "hot cargo' agreements were not
held in violation of the secondary boycott provisions of the Act. See, a g, S Rept 187,
86th Cong, 1st seas. 79-80 (1959), I Legislative History of the Labor-Management
Reporting and Disclosure Act of 1959 (U.S. Govt Printing Office) 475-476 (1959)
H.,_Repk,.741, 86th Cong., 1st sess. 20-21 (1959), I Legislative, History, of,the,Ikbo;-
Management Reporting and Disclosure Act of 1959 (U.S. Govt' Printing ,Offlce), 7,7S-779
(1959).
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sweeping in scope. The term "enter into" at law means "to join with
another or with others" .' or ",to become bound or obligated by a .. .
contract." 9 Even though article XXIX was void and a nullity in the
eyes of the law, the parties agreed that "Article XXIX was binding
on all -members of. the Car Dealers Association." The parties main-
tained, reaffirmed, and gave effect to article XXIX thereby becoming
bound by it. Accordingly, we find, in agreement with the General
Counsel, that the Respondent and the Car Dealers Association did
"enter into" an agreement on November 2, 1960, which incorporated
article XXIX, and by so doing violated Section 8 (e) of the Act.io
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, oc-
curring in connection with the operations as described in section I,
above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor
practices, we shall order that it cease and desist therefrom and that it
take certain affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. District No., 9, International Association of Machinists, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
2. The Greater St..Louis Automotive Association, Inc., and its
members,: are engaged in commerce within the meaning of Section
2(6) and (7) oftheAct.
3. By reaffirming, maintaining, and giving effect to a contract with
the members of the Greater St. Louis Automotive Association, Inc.,
whereby those Employers agreed that whenever they found it feasible
to send work' out that comes 'under the jurisdiction of Respondent
Union and the contract, preference would be given to shops or sub-
s Ballentine , Law Dictionary ( 2d ed . 1948).
s 30 C.J. S , Enter ; Wire Ass'n of Philadelphia v. Ruby, 60 Neb. 216, 224 , 82 N.W.
629, 631.
• 10 Automotive, Petroleum, & Allied Industries Employees Union, Local 618 affiliated 'with
International Brotherhood of, Teamsters , Chauffeurs, Warehousemen & Helpers of America
(Greater St. Louis Automotive Trimmers and Upholsterers Association, Inc.),'i'134
NLRB 1363.
DISTRICT NO. 9, INT'L ASSOCIATION OF MACHINISTS 1361
contractors approved or having contracts with District No. 9, Inter-
national Association of Machinists, AFL-CIO, the Respondent Union
violated Section 8 (e) of the Act.
4. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
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
Relations Board hereby orders that the Respondent, ,District No. 9,
International Association of Machinists, AFL-CIO, St. Louis, Mis-
souri, and its officers, agents, representatives, successors, and assigns,
shall :
1. Cease and desist from :
(a) Maintaining, giving effect to, or enforcing the contract entered
into by District No. 9 and the members of the Car Dealers Association
on or about August 15, 1959, or on or about November 2, 1960, insofar
as said contract provides that :
Whenever the Employer finds it feasible to send work out that
comes under the jurisdiction of the Union and this contract, pref-
erence must be given to such shop or subcontractors approved or
having contracts with District No. 9, International Association
of Machinists.
(b) 'Entering into, actively maintaining, giving effect to, or en-
forcing any other contract or agreement, express or implied, whereby
the members of the Dealers Association cease or refrain, or agree to
cease or, refrain, from handling, using, selling, transporting, or other-
wise dealing in any of the products of any other employer, or from
doing business with any other person.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in Respondent's business offices and meeting halls, copies
of'the notice "attached hereto marked "Appendix A." 11 Copies of
said notice, to be'furnished by the Regional Director for the Four-
teenth Region, shall, after being duly signed by official representatives
of Respondent, be posted by Respondent immediately upon -receipt
thereof; and be maintained by it for- 60 consecutive days thereafter,
in conspicuous' places, including all places where notices to members
are customarily posted. Reasonable 'steps shall be taken by Respond-,
u 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."
680849-62-vol. 134-87 , ,
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Furnish to the Regional Director for the Fourteenth Region
signed copies of the aforementioned notice or posting by members of
the Greater St. Louis Automotive Association, Inc., St. Louis, Mis-
souri, if the Companies agree, in places where notices to employees
are customarily posted. Copies of said notice, to be furnished by the
Regional Director, shall, after being signed by Respondent, as indi-
cated, be forthwith returned to the Regional Director for disposition
by him.
(c) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
MEMBERS FANNING and BROWN concurring and dissenting:
We would dismiss the complaint in this case for the same basic con-
siderations as impelled our dissent in a companion case issued this
same date,12 namely, we are unable to find that the record preponder-
antly establishes that Respondent has entered into (as distinguished
from attempted to enforce) the alleged 8 (e) contract under considera-
tion here.
'` See footnote 10.
APPENDIX A
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF EMPLOYER-
MEMBERS OF GREATER ST. Louis AUTOMOTIVE ASSOCIATION, INC.
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 give notice that :
WE WILL NOT enter into, actively maintain, give effect to, or
enforce any contract or agreement, express or implied, with any
member of Greater St. Louis Automotive Association, Inc., where-
by such employer ceases or refrains, or agrees to cease or refrain,
from handling, using, selling, transporting, or otherwise dealing
in any of the products of any other employer, or from doing
business with any other person.
WE WILL NOT maintain, give effect to, or enforce the contract,
entered into by the members of the Greater St. Louis Automotive
Association, Inc., and the undersigned Union on or about August
15,1959, or on or about November 2, 1960, insofar as said contract
provides that :
Whenever the Employer finds it feasible to send work out.
that comes under the jurisdiction of the Union and this con-
tract, preference must be given to such shop or subcontractors
AUTOMOTIVE, PETROLEUM, ETC., LOCAL 618 1363
approved or having contracts with District No. 9, Interna-
tional Association of Machinists.
DISTRICT No. 9, INTERNATIONAL ASSOCIATION
OF MACHINISTS, AFL-CIO,
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.
Automotive , Petroleum & Allied Industries Employees Union,
Local 618, affiliated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen & Helpers of America and
Greater St. Louis Automotive Trimmers and Upholsterers
Association, Inc. Case No. 14-CE-1. December 19, 1961
DECISION AND ORDER
On November 22,1960, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner, with the following additions and
modifications.
The complaint alleges and Respondent admits that Greater St.
Louis Automotive Association, Inc., herein called Car Dealers Asso-
ciation, is an employer association consisting of firms in the St. Louis,
Missouri, area engaged in selling and servicing automobiles and auto-
motive parts. In the operation of their business the members of the
Car Dealers Association, during the past 12 months, a representative
IIn support of the Trial Examiner 's findings and conclusions the Board relies on
District No. 9, International Association of Machinists , AFL-CIO (Greater St. Louis
Automotive Trimmers and Upholsterers Association, Inc.), 134 NLRB 1354; Highway
Truck Drivers and Helpers , Local 107, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Independent (B. A. Gallagher & Sons), 131
NLRB 925.
134 NLRB No. 139.