General Drivers, Chauffeurs and Helpers

National Labor Relations Board - Board Decisions

Oct 30, 1957

119 N.L.R.B. 222 (N.L.R.B. 1957)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such right may be affected by an agreement requiring mem-
bership in a labor organization, as authorized in Section 8 (a) (3)
of the Act.
All employees are free to become or remain, or to refrain from
becoming or remaining, members of Office Employes International
Union, Local No. 11, or of any other labor organization, except as
such right may be affected by an agreement executed in conformity
with'Section 8 (a) (3) of the Act.
INTERNATIONAL BROTHERHOOD of TEAMSTERS,
CHAUF + +URS, WAREHOUsn1%nN AND HELPERS
OF AMERICA, 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.
General Drivers, Chauffeurs and Helpers, Local Union No. 886,
affiliated with International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , AFL-CIO and
Unit Parts Company. Case No.16-CB-91. October 30,1957
DECISION AND ORDER
On January 2,195T, Trial Examiner William F. Scharnikow 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 copy
of the intermediate Report attached hereto. Thereafter , the Gen-
eral Counsel and the Charging Party filed exceptions to the remedy
recommended in the Intermediate Report , and supporting briefs.
The Respondent filed a reply brief 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 record
in the case , and hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner with the exceptions , modifications,
and additions noted below.
We agree with the Trial Examiner that the Respondent' violated
'ection 8 (b) (1) (A) of the Act by threatening employees that
it would not sign an agreement it had reached with the Company,
119 NLRB No. 34.
GENERAL DRIVERS, CHAUFFEURS AND HELPERS 223
thus preventing the employees from receiving benefits provided for
in this agreement, unless 80 percent of them joined the Union and
signed checkoff authorization cards.' However, unlike the Trial
Examiner, we find that an appropriate and necessary remedy to
expunge the effects of the Respondent's unfair labor practice requires,
among other things, invalidating the checkoff authorizations thus
obtained by the Respondent and a refund of the dues and other
monies collected by the Respondent pursuant to these checkoff
authorizations.
As discussed in the Intermediate Report, the Respondent and the
Company agreed upon all the terms and conditions of employment,
including a wage increase. However, the Respondent refused to sign
the agreement unless 80 percent of the employees joined the Union
and signed checkoff authorization cards. It so informed the employees
and told them that they could not receive any of the contract benefits
until they complied with these conditions. As a consequence, 62
employees signed membership and dues checkoff cards between June
7, 1956, when the threat was made, and July 20, 1956, when the
Respondent consummated its agreement with the Company. There-
after, the Respondent submitted the checkoff authorizations to the
Company, which the latter has honored.
From these facts, it is reasonably clear to us that the employees'
action in joining the Union and executing the dues checkoff s during
the June 7 to July 20, 1956, period was not voluntary, but was the
direct result of the Respondent's coercive conduct. Contrary to the
Trial Examiner's view, we do not believe that additional evidence
of coercion is necessary to warrant an order directing the Respondent
to relinquish the fruits of its unfair labor practices. It is sufficient
that the Respondent unlawfully exacted membership and dues check-
offs as the price the employees in question had to pay to entitle them
to the benefits of the contract.' Accordingly, we shall order the
Respondent to cease giving effect to the checkoff authorizations
secured from the employees during the period from June 7 to July
20, 1956, and to return these authorizations to the employees who
executed them. We shall also order the Respondent to notify the
Company to discontinue honoring these authorizations. In addi-
tion, we shall order the Respondent to refund to all present and
former employees all dues and other monies deducted from their
earnings pursuant to the authorizations executed during the June 7
to July 20, 1956, period, which the Respondent has collected from
the Company.
1 The Respondent has- filed no exceptions to this finding.
2 Cf..United Association of Journeymen & Apprentices of Plumbing & Pipeftting Industry
of the United State3 and Canada, Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing &
Heating Corporation ), 115 NLRB 594, 599-601.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As employees were also unlawfully coerced into joining the Union,
we shall order the Respondent to notify all employees that they
are free to withdraw from, or remain in, its organization and that it
does not require membership in its organization as a condition of
obtaining or enjoying any employment benefits secured by it from
the Company, unless there is in effect an agreement requiring mem-
bership as a condition of employment as authorized in Section 8 (a)
(3) 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, General Drivers,
Chauffeurs and Helpers , Local Union No. 886, affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO, its officers , representatives , agents,
successors, and assigns , shall :
1. Cease and desist from :
(a) Advising, warning, or threatening employees of Unit Parts
Company that the Respondent will withhold from them any benefits
obtained or obtainable by it, as their exclusive bargaining representa-
tive, from the said Company , unless they join its organization and
execute dues checkoff authorizations in its favor.
(b) Giving effect to any checkoff cards executed by the employees
of Unit Parts Company during the period from June 7 to July
20, 1956, authorizing the deduction of clues and other monies from
their earnings for remittance to the Respondent.
(c) In any like or related manner restraining or coercing employees
of Unit Parts Company, its successors , or assigns , in the exercise of
their rights guaranteed in Section 7 of the Act, except. to the extent
that such rights may. be . affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized 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) Return to employees the dues checkoff authorizations executed
by them during the period from June 7 to July 20, 1956.
(b) Refund to. all present and former employees , from whose
earnings dues and other monies were deducted by Unit Parts Com-
pany and remitted to the Respondent pursuant to the checkoff author-
izations executed during the June 7 to July 20, 1956, period, the
sums of money so deducted.
(c) Notify. the employees of Unit Parts Company that they *are
free to withdraw from, or remain i n, its organization and that it does
not require membership in its organization as a condition of obtain-
GENERAL DRIVERS, CHAUFFEURS AND HELPERS 225
ing or .enjoying any employment `benefits secured by= it as -their bar-
gaining representative, from the Company, unless there is in effect an
agreement requiring membership- as a condition of employment as
a'utho'rized in Section 8 (a) (3) of the Act.
(d) Post 'at its business offices in Oklahoma City, Oklahoma, copies
of the notice attached hereto marked "Appendix." 3 Copies of said
notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being duly signed by an official representative of
the Respondent, be posted by the Respondent immediately upon the
receipt thereof, and be maintained by it for, sixty (60)' consecutive
days thereafter in conspicuous places, including all places where
notices to its members are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are. not altered,
defaced, or covered by any other material.
(e) Additional copies of the appendix attached hereto shall be
signed by a representative of the Respondent and be forthwith re-
turned to the Regional Director for the Sixteenth' Regions 'for post-
ing at the place of business of Unit Parts Company in Oklahoma City,
Oklahoma, in .places where notices" to employees are customarily
posted, if the Company is willing to do so.
(f) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, as to,what
steps it has taken to comply herewith.
ME-31BER MURDOCK.. took no part in the consideration of the above
Decision. and :Order.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS AND EMPLOYEES OF UNIT PARTS COMPANY
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 you that:
WE WILL NOT advise, warn, or threaten employees of Unit Parts
Company that we will withhold from them any benefits obtained
or obtainable by us, as their exclusive representative, from Unit
Parts Company, unless they join our organization or execute dues
checkoff authorizations in our favor.
WE WILL NOT give effect to any checkoff , cards executed by
the employees of Unit Parts Company during the period from
June 7 to July 20, 1956, authorizing the deduction of dues and
other monies from their earnings for remittance to. us.
476321-58-vol. 119---16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner restrain or coerce
employees of Unit Parts Company, its successors, or assigns, in
the exercise of their rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8 (a) (3) of
the Act.
WE WILL return to the employees the dues checkoff authoriza-
tions executed by them during the period from June 7 to July
20,1956.
WE WILL refund to all present and former employees, from
whose earnings dues and other monies were deducted by Unit
Parts Company and remitted to us pursuant to the checkoff
authorizations executed during the June 7 to July 20, 1956 period,
the sums of money so deducted.
WE hereby notify the employees of Unit Parts Company that
they are free to withdraw from, or remain in, our organization
and that we do not require membership in our organization as
a condition of obtaining or enjoying any benefits secured by us,
as their bargaining representative, from the said Company, unless
there is in effect an agreement requiring membership as a con-
dition of employment as authorized in Section 8 (a) (3) of the
Act.
GENERAL DRIVERS, CHAUFFEURS AND HELPERS,
LOCAL UNION No. 886, AFFILIATED WITH IN-
TERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS
OF AMERICA, 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint , issued upon an amended charge filed by Unit Parts Company
(herein called the Company ), alleges that the Respondent labor organization com-
mitted unfair labor practices affecting commerce within the meaning of Sections
8 (b) (1) (A) and 2 (6) and (7) of the Labor Management Relations Act, 61
Stat. 136 (herein called the Act ), by refusing to sign and execute an agreement
reached with the Respondent and granting certain employee benefits, including a
7-cent wage increase , until and unless at least 80 percent of the Company's em-
ployees signed and delivered to Respondent their membership and checkoff author-
,ization ' cards. The Respondent 's answer, as amended at the hearing , admits the
allegations of the complaint with respect to its status as, a labor organization within
the meaning of the--Act and also the nature and extent of the Company's business
in interstate commerce ; but it denies generally those allegations in the complaint
charging it with the commission of any unfair labor practices.
GENERAL DRIVERS, CHAUFFEURS AND HELPERS 227
Pursuant to notice, a hearing was held in Oklahoma City, Oklahoma, on October
23, 1956, before the Trial Examiner duly designated by the Chief Trial Examiner.
The General Counsel, the Respondent, and the Company appeared by counsel, and
were afforded full opportunity to be heard , to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues. Before the hearing closed, the
.General Counsel and counsel for the Respondent submitted oral argument upon the
issues. Since the close of the hearing, the Trial Examiner has received briefs from
the General Counsel, the Respondent, and the Company.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Unit Parts Company, an Oklahoma corporation with its principal office and place
of business in Oklahoma City, Oklahoma, is engaged in the rebuilding and repair
of automobile parts. During 1955, the Company purchased parts of a value of
more than $50,000, of which more than 90 percent was shipped to the Company
in Oklahoma City in interstate commerce.' During the same year, the Company
shipped parts of a value of about $1,000,000, of which more than $50,000 was
shipped to points located outside the State of Oklahoma?
The Trial Examiner finds that the Company is engaged in commerce within the
meaning of the Act.
It. THE LABOR ORGANIZATION INVOLVED
General Drivers , Chauffeurs and Helpers , Local Union No. 886 , affiliated with
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America, AFL-CIO, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
Pursuant to a consent-election agreement between the Company and the Respond-
ent and the majority vote of the employees in the resulting election, the Board's
Regional Director for the Sixteenth Region certified on February 16, 1956, that the
Respondent was the exclusive bargaining representative for the Company's produc-
tion and maintenance employees in a specifically described unit appropriate for the
purposes of collective bargaining.3 Thereafter, O. H. Lair, vice president of the
Respondent, and General Manager Frank Craegan of the Company held approxi-
mately 10 bargaining conferences, the last of which was held on June 4, 1956. On
June 5, Lair notified Craegan that the employees' contract committee had turned
down the contract terms offered by the Company, including a 6-cent wage increase .4
Craegan thereupon told Lair that he was sure he could get authority for a 7-cent
increase and that Lair should submit that figure to the Respondent's contract com-
mittee. Late the same afternoon (i. e., June 5) President Irene Boulton of the Com-
pany approved the 7-cent offer.
I This finding is made upon the testimony of Frank Craegan, the Company's general
manager. The figure for the Company's inflow, which is given in the complaint and has
been admitted by the Respondent in its amended answer, is $500,000. The discrepancy
between these figures is immaterial in view of the fact that, according to both Craegan's
testimony and the admitted allegations of the complaint, the Company's clear, annual
outflow in commerce is over` the required minimum of $50,000.
2 According to the admitted allegation of the complaint, the outflow in interstate com-
merce for 1955 was in excess of $50,000. According to Craegan's testimony, it was
about $900,000.
3 Case No. 16-RM-108. The appropriate unit which was agreed upon, and for which
the certification was issued, was the following : All production and maintenance employees
including linemen, truckdrivers, receiving clerks, shipping clerks, cleaning men, and sub-
foremen employed by the Company at its Oklahoma City, Oklahoma, plant, but excluding
all office clerical employees, professional employees, guards, working foremen, and all
supervisors as defined in the Act.
4 According to Craegan's testimony, Lair had previously notified Craegan that the con-
tract committee had rejected an "original offer" of a wage increase made by the Company,
and that Craegan had countered with an offer of a 6-cent increase. What the Company's
"original offer" was, and when it was made by the Company and rejected by the
Respondent, are not disclosed by the record. However, it is clear not only from Craegan's
'testimony, . but also from that of Lair, that after June' 4 and before June 7, 1956; the
Company's wage offer was increased from 6 cents to 7 cents, as is found in the text.
22S DECISIONS OT'' NATIONAL LABOR RELATIONS BOARD
On June 7, 1956, Craegan'and Clark Nichols, the Company's attorney , gave Lair
•a complete typewritten form of contract including the 7-cent increase , and also a
letter signed by Nichols and advising Lair that "the Company stands ready to 'sign
this contract any time." Lair then secured permission from Craegan to hold a
meeting of the Company 's employees that afternoon to discuss the contract proposal.
On the way to this meeting , Lair discussed the Company's proposal with mem-
bers of the employees ' contract committee , including Don Thomas who was the
committee 's chairman . According to Lair's testimony , the committee members. said
simply that they would not recommend acceptance of the contract draft. But Thomas
testified , and the Trial Examiner credits his testimony and finds, that the committee
members told Lair that, in view of the fact none of the 54 employees who wanted
to join the Respondent had done so , the committee would accept the 7-cent increase
if given enough time to sign up these employees after the contract had been signed.
The meeting was attended by about 40 or 42 of the Company's employees. Lair
discussed the contract proposal, including the offer of a 7-cent wage increase, and
said that he personally would not recommend its acceptance . Employee Elizabeth
Clevenger , who attended the meeting , testified that Lair also told the employees
that "he wouldn 't sign the contract until 80 percent had signed . these
[checkoff] cards , and that would protect the ones that were for . the union." Lair
denied ever telling any of the Company 's employees that the Respondent would
not sign the contract unless 80 percent of them signed the checkoff cards. But
Chairman Don Thomas testified that, in accordance with the contract committee's
suggestion , Lair made it clear that the 7-cent increase would be given to the
employees only when the contract was signed , and also "mentioned" the fact that
the contract "would be signed when a large portion of the employees signed check-
off cards. " Upon this state of the record, the Trial Examiner finds, in accordance
with Clevenger 's and Thomas ' testimony , that Lair told the employees that, the
contract which would grant -them a 7-cent wage increase would be signed only
when 80 percent of the employees had signed dues checkoff authorizations. After
this discussion , the employees voted by approximately 32 to 8 to accept the Com-
.pany's contract proposal "on the condition [ that] it was satisfactory to the
contract committee and the union." 5
Immediately following the employees ' meeting, Lair visited Craegan . and Nichols,
.the Company 's attorney . According to Craegan's testimony , Lair fold. them that
both ' the contract committee and the employees had accepted the terms of'the
Company 's proposal but that he would not sign the contract "until a certain number
of [the] . . employees had signed checkoff cards ," and in answer to Craegan's
question , that about 80 percent would be required . 'Lair, on the other hand,
testified that he told Craegan and Nichols that the contract would have-to be
approved by the contract committee and by President James Hamilton of the
Respondent . Lair denied that he told them that he would not "sign the contract
.until 80 percent of the employees signed checkoff cards. The Trial Examiner
credits Craegan 's testimony and finds that Lair told him and Nichols that he would
not sign the contract until 80 percent of the Company 's employees had signed ,dues
checkoff authorizations. '
None • of the Company 's approximately , 83 employees had yet joined the
Respondent , and with Committee Chairman Thomas playing the major role, the
Respondent set out to obtain members among the Company 's employees . According
to Thomas ' uncontradicted testimony, which the Trial Examiner credits, Lair told
him that "when [Thomas] felt that all the people was going to join that [he]
thought would join to let [Lair ] know and he would sign the contract that moment."
From June 7 until about July 15, 1956, the Respondent procured signed membership
applications and dues checkoff authorizations from 62 of the Company 's. employees,
with Thomas accounting for 35 or 40.
In. the meantime , Lair had notified President Hamilton within a day or so, after
June 7 that the contract committee had rejected the Company 's proposal and that,
although the employees at the June 7 meeting had voted in favor of accepting the
contract if their committee approved , a majority of the employees had not attended
the meeting . Hamilton told- Lair that whenever a contract proposal was satisfactory
to both the employees and their contract committee, he would sign it.
On July 19, 1956 , Chairman Thomas notified Lair by telephone that the contract
was acceptable to the committee. Lair thereupon had President Hamilton sign the
contract for the Respondent in exactly the same form in which the Company had
5 Both Lair and. employee Clevenger testified as to the employees' vote of approval.
Lair testified that it was upon the conditions stated in the text, and the Trial Examiner
so finds.
GENERAL DRIVERS, CHAUFFEURS AND HELPERS 229
presented it on June 7. On the same day, Lair and Craegan inserted July 20, 1956,
as the effective date of the contract and the Company also signed.
After July 20, the Respondent submitted to the Company the signed dues checkoff
authorizations which it had obtained from the employees, all of which were admit-
tedly signed after June 7, 1956. In honoring these authorizations up to the time
of the hearing, the Company had deducted from wages (and had paid to the
Respondent) the dues of 54 of its employees in August 1956, of 44 employees in
September 1956, and of 46 employees in October 1956.6
Conclusions
The essence of the present case is this: Upon receipt of the Company's contract
offer including a 7-cent wage increase, the Respondent (speaking through Repre-
sentative Lair) informed the Company and also the employees who attended the
June 7 meeting that the Respondent would not execute the contract unless and
until, approximately 80 percent of the employees became members of the Respondent
and signed dues checkoff authorizations. This threat made by the Respondent to
the employees to withhold the benefits obtainable upon the execution of the
contract was obviously intended, and was reasonably calculated, to restrain and
coerce the employees in the exercise of their right under Section 7 of the Act to
refrain, from joining or assisting the Respondent.
While all of this seems clear from the record, the Respondent argues in its brief
that the evidence still does not show that it violated Section 8 (b) (1) (A) of the
Act, because (1) Lair's remarks to the employees were made at the request of a
contract committee composed of, and elected by, the employees and therefore
(according to the Respondent's argument) could not be attributed to the Respondent
itself; (2) there is no proof that any employee's signature to a membership applica-
tion or a dues checkoff authorization was actually coerced; and (3) since the
contract had not yet been executed, Lair's remarks cannot be construed as a
threat to deprive the employees of any rights or benefits under the contract.
By the first of these arguments, the Respondent seeks to avoid responsibility for
Lair's statements to the employees at the June 7 meeting and to cast it instead
either upon the employees' elected contract committee (as distinct, in some way,
from the 'Respondent) or perhaps even upon the employees themselves, since they
elected the committee. Neither possible branch of this argument is tenable. Under
the. provisions of the Act, only the Respondent (as the certified exclusive bargaining
representative of the Company's employees) had the authority and responsibility
of negotiating and then executing a contract with the Company on behalf of all
the employees in the appropriate unit. Delegation by the employees of any or
all of such authority and responsibility to an employees' contract committee during
the certification year would, of course, have been inconsistent and therefore inef-
fective. To the extent that the Respondent may have availed itself of the services
of the committee, followed its advice or instructions, or permitted the committee
to make decisions or determine action affecting the interest of the employees, the
Respondent nevertheless remained responsible. The Trial Examiner therefore
concludes, contrary to the position taken by the Respondent, that it was responsible
for Lair's statements to the employees at the meeting of June 7, in spite of the
fact that these statements were made by Lair at the request of the contract
committee.
The remaining two arguments made by the Respondent in its brief are also
without merit. Even if the employees were not actually coerced in signing the
Respondent's membership applications and dues checkoff authorizations, the fact
that Lair's remarks were reasonably calculated to coerce them to do so is sufficient
basis for a finding of a violation of Section 8 (b) (1) (A) of the Act 7 Similarly,
the mere fact that the employees had no contractual right to the wage increase when
Lair made his remarks to them is immaterial. For, under the provisions of the
Act, the Respondent was obligated, as exclusive bargaining representative, to attempt
to secure from the Company the best obtainable terms and conditions of employ-
ment and, then, by the execution and enforcement of a contract embracing them,
to make the benefits of this contract available to all employees in the unit, whether
The dues checkoff requests made by the Respondent to the Company listed 62 names for.
August, 56 for September, and 52 for October. However, some of the persons thus named
bad quit, 1 was the Respondent's steward (apparently exempt from the dues obligation),
and 1 was a foreman.
4 N. L. R. B. v, Reed, 206 F. 2d 184 (C. A. 9) ; Progressive Mine Workers v. N. L. R. B.,
187 F. 2d 298, 301 (C. A. 7).
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dues-paying members or not. Furthermore, except through the procurement and
enforcement of a union-security agreement of the type described in the proviso to
Section 8 (a) (3) of the Act, the Respondent was certainly forbidden by Section
8 (b) (1) (A) to make any use of its representative position or bargaining power
for the purpose of depriving the employees of their right under Section 7 to refrain
from joining or assisting it. In the light of these obvious limitations and restric-
tions upon its use of its bargaining power and function, the Respondent was not free
to condition its execution of the contract and the employees' receipt of the benefit
of the wage increase thereunder, upon the signing of membership applications and
checkoff authorizations by such number of the employees as would be satisfactory
to the Respondent. Thus it appears clear to the Trial Examiner, and he accord-
ingly finds, that the Respondent, by threatening to withhold the benefit of the wage
increase on this condition, violated its obligation as statutory bargaining representa-
tive, restrained and coerced the employees in the exercise of their right under
Section 7 of the Act to refrain from joining or assisting the Respondent, and thereby
committed an unfair labor practice within the meaning of Section 8 (b) (1) (A).
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 the operations of the Company 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 thereof.
V. THE REMEDY
The Trial Examiner has found that the Respondent committed an unfair labor
practice within the meaning of Section 8 (b) (1) (A) of the Act by threatening
the Company's employees on June 7, 1956, that it would not execute the contract
offered by the Company and would thereby withhold from the employees the benefit
of a wage increase thereunder, unless approximately 80 percent of the employees
joined the Respondent and signed dues checkoff authorizations. In accordance with
the provisions of Section 10 (c) of the Act, it will be recommended that in the
future the Respondent cease and desist from such action and any similar action
violative of Section 8 (b) (1) (A), and also "take such affirmative action . .. as
will effectuate the policies of the Act."
The parties present conflicting arguments as to whether, as such "affirmative
action," the Respondent should be required to reimburse employees for the amounts
deducted from their. wages under those dues checkoff authorizations which were
signed on and after June 7 and until July 20, the date the contract was ultimately
executed by the Respondent. The General Counsel and the Company press for such
an order; the Respondent opposes their request.
The purpose of any affirmative order under Section 10 (c) of the Act is remedial.
Issuance of the order is justified only when it is directed to the restraint of unfair
labor practices or the avoidance of their consequences.8 Like any other affirmative
order, a dues reimbursement order will be issued only if, in the Board's opinion, it
8 Consolidated Edison Co. v. N. L. R. B., 305 U. S. 197, 236. See also Republic Steel
Corporation v. N. L. R. B., 311 U. S. 7, 11-12; N. L. R. B. v. Fansteel Metallurgical
Corporation, 306 U. S. 240, 257. In the Consolidated Edison case, the Supreme Court set
aside an order of the Board invalidating the employer's contracts with the Brotherhood, a
labor organization representing Its employees. The Board had found employer violations
of Section 8 (1) and (3) of the Wagner Act, but had dismissed a portion of the complaint
alleging employer domination of, and interference with, the Brotherhood in violation of
Section 8 (2). In setting aside the Board's order with respect to the contracts, the Court
held (305 U. S. at 236)
The power to command affirmative action is remedial, not punitive, and Is to be
exercised in aid of the Board's authority to restrain violations and as a means of
removing or avoiding the consequences of violation where those consequences are of a
kind to thwart the purposes of the Act. The continued existence of a company union
established by unfair labor practices or of a union dominated by the employer Is a
consequence of violation of the Act whose continuance thwarts the purposes of the
Act and renders ineffective any order restraining the unfair practices. Compare
N. L. R. B. v. Pennsylvania Greyhound Lines, supra. Here, there is no basis for a
finding that the contracts with the Brotherhood and its locals were a consequence of
the unfair labor practices found by the Board or that these contracts In themselves
thwart any policy of the Act or that their cancellation would in any way make the
order to cease the specified practices any more effective . [Emphasis in original.]
GENERAL DRIVERS, CHAUFFEURS AND HELPERS 231
provides "the particular means by which the effects of unfair labor practices are to
be expunged." 9 Obviously this can be so only when it appears that the dues were
exacted from employees as the result of an unfair labor practice, and an examina-
tion of the decisions of the Board shows that it has observed this requirement. For
dues reimbursement orders have been issued almost entirely in two types of cases in
which the Board has found that the unfair labor practices of an employer or a union
have made the payment of dues "a price of employment," 10 i. e., in closed-shop or
other illegal union-security situations 11 and in situations in which an employer-
dominated and employer-assisted union has been thrust upon the employees.12 When
the Board has infrequently issued an order in any other type of case, it has also done so
only upon a clear showing that the dues payments were actually secured by the
coercion of the unfair labor practice found in the case.13
From all this, it appears that a dues reimbursement order may, and should, be
issued in the present case only if the employees' signatures to the checkoff authoriza-
tions were actually the result of the Respondent's unfair labor practice, i. e., its
threat to withhold execution of the contract and the benefit of the wage increase
thereunder. But the record furnishes no persuasive basis for any such finding. Not
only is there no testimony directly to that effect, but the evidence, when considered
as a whole, would justify no such inference. For it is undisputed that, although
the first 62 of the Company's employees joined the Respondent and signed checkoff
authorizations in the critical period between June 7 and July 20, 59 employees had
previously voted for the Respondent in the representation election, presumably with
some intention of eventually joining the Respondent and making some arrangement
for the payment of their dues. The evidence thus raises at least enough of a question
as to whether any of the employees' signatures were brought about by the Respond-
ent's threat to refuse to execute the contract, as to rule out any such inference from
the mere substance of the threat itself. Indeed, it is for this reason that the Trial
Examiner has based his finding of unfair labor practice upon the intended and
normal effect of Lair's statements to the employees, rather than also upon any
actual coercive effect. Under the circumstances, the Trial Examiner cannot find
upon the present record that the Respondent's unfair labor practice was responsible
for the signatures on the dues checkoff authorization. He therefore denies the
General Counsel's and the Company's requests for a dues reimbursement order.
Upon the above findings of fact and upon the entire record in the case, the Trial
Examiner makes the following:
CONCLUSIONS OF LAW
1. Unit Parts Company, an Oklahoma corporation, is an employer engaged in
commerce within the meaning of Section 2 (2), (6), and (7) of the Act.
2. The Respondent, General Drivers, Chauffeurs and Helpers, Local Union No.
886, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
9 Virginia Electric and Power Company v. N. L. R. B., 319 U. S. 533, 539.
10 Ibid.. at p. 540; and see, passim, the Board's decisions cited in the following two
footnotes.
11 See the Virginia Electric case, supra; United Association of Journeymen & Apprentices
of Plumbing & Pipefitting Industry, etc. (Brown-Olds), 115 NLRB 594; Parker Brothers
and Company, 101 NLRB 872, 874, enfd. as mod. in another respect, 209 F. 2d 278, 280
(C. A. 5) ; Eclipse Lumber Co., Inc., 95 NLRB 464, 475, enfd. 199 F. 2d 684 (C. A. 9) ;
The Item Company, 113 NLRB 67; John B. Shriver Company, 103 NLRB 23; Charles W.
Carter Co., 115 NLRB 251 ; The Danspur Company, Inc., 114 NLRB 40; Precast Slab and
Tile Company, 88 NLRB 1237, 1238-1239, 1246-1247, 1258; Federal Stores Division of
Speigel. Inc., 91 NLRB 647; Marlin Rockwell Corporation, 114 NLRB 553 (union's and
employer's threats to discharge upon basis of an unjustified interpretation of union-
security contract).
" See the Virginia Electric case, supra; Meyer & Welch, Incorporated, 91 NLRB 1102;
N. L. R. B. v. I. Spiewak & Sons, 179 F. 2d 695, 697-698 (C. A. 3). In passing it may be
noted that two circuit courts of appeals have refused to approve a dues reimbursement
order in any situation but a closed-shop or other illegal union-security situation.
N. L. R. B. v. Braswell Motor Freight Lines, 209 F. 2d 622 (C. A. '5), enfg. as mod.
101 NLRB 1151; N. L. R. B. v. Shedd-Brown Mfg. Co., 213 F. 2d 163, 170-171 (C. A. 7),
enfg. as mod. 102 NLRB 742, 103 NLRB 905.
's For example, see Local 404, International Brotherhood of Teamsters, etc. (Brown
Equipment & Manufacturing Co.), 100 NLRB 801, 803, 811-812, enfd. in 205 F. 2,1 99
(C. A. 1). In that case the Board found upon direct testimony that the 31 employees
benefiting from the dues reimbursement order had joined the respondent union under
protest as a result of the union's threat that they would otherwise be discharged.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
housemen and Helpers of America, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
3. On and since June 7, 1956, the Respondent has been the exclusive representa-
tive of all employees of Unit Parts Company in an appropriate unit for the pur-
poses of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By threatening the employees of Unit Parts Company on June 7, 1956, that
it would not execute the contract offered by said Company and would thereby with-
hold from the employees the benefit of the wage increase thereunder unless approxi-
mately 80 percent of the employees joined the Respondent and signed dues checkoff
authorizations , the Respondent engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
5. 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.]
Drivers, Chauffeurs, and Helpers Local 639, International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen , and Helpers
of America, AFL-CIO and Curtis Brothers , Inc. Case No.
5-CB-190 (Post 5-CC-59). October 30,1957
DECISION AND ORDER
On November 19, 1956, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in any 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 General Counsel and the Charging Party filed exceptions to
the Intermediate Report and supporting briefs, and the Respondent
Union filed a brief supporting the Trial Examiner. In addition, the
Board granted requests for permission to file briefs to the Chamber
of Commerce of the United States, the American Retail Federa-
tion, and the AFL-CIO. On May 2, 1957, the Board heard oral
argument; the General Counsel, Curtis Brothers, and Local 639
participated.'
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 In-
termediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner only to the extent consistent herewith.
The principal issue presented in this case raises a question of law
involving the construction of Section 8 (b) (1) (A) of the statute.
The complaint alleges that a union's picketing for exclusive recogni-
tion by the employer when the union in fact represents less than a
1 This case was consolidated for purposes of oral argument with International Union of
Operating Engineers , Local Union No. 12, AFL-CIO (Willard W. Shepherd and Norma D.
Shepherd, d/b/a Shepherd Machinery Company ), 119 NLRB 320.
119 NLRB No. 33: