133 N.L.R.B. 62 (N.L.R.B. 1961)

International Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board DecisionsSep 11, 1961

133 N.L.R.B. 62 (N.L.R.B. 1961)

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America ; Truck Drivers & Helpers Local Union No. 728, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America; International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America , Local Union No. 71; International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, Local Union No. 55; and General Drivers, Warehousemen & Helpers Local Union No. 509 and Overnite Transportation Company. Case No. 10-CC- 426. September 11, 1961 SUPPLEMENTAL DECISION AND ORDER On April 6, 1961, Trial Examiner Charles W. Schneider issued a Supplemental Intermediate Report in the above-entitled proceeding,' finding that Respondent Local 728, Respondent Local 71, Respondent Local 55, and Respondent Local 509 had engaged in and were engag- ing in certain unfair labor practices, and recommending that they cease and desist therefrom, and take certain affirmative action, as set forth in the Supplemental Intermediate Report attached hereto. The Trial Examiner further found that the Respondent International Brotherhood of Teamsters had not engaged in any of the unfair labor practices alleged in the complaint, and recommended that the com- plaint against the Respondent International be dismissed. There- after, Respondent Local 728 filed exceptions to the Supplemental In- termediate Report and a supporting brief. Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers herein to a three-member panel [Members Rodgers, Leedom, and Brown]. 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 Supple- mental Intermediate Report, the exceptions thereto, the supporting brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications.' 'In International Brotherhood of Teamsters , et at (Overnste Transpmtation Company), 130 NLRB 1020, the Board, Member Fanning dissenting , remanded this proceeding to the .above-named Trial Examiner for issuance of a Supplemental Intermediate Report 2 As no exceptions were filed to the recommendation that the complaint against the International be -dismissed , we shall adopt the recommendation, pro forma Except as indicated in the text with respect to Local 55, we also adopt , pro forma, in the absence of exceptions , the Trial Examiner 's findings , conclusions , and recommendations with re. spect to the Respondents, Locals 55 , 71, and 509, 133 NLRB No. 12. INTERNATIONAL BROTHERHOOD 'OF TEAMSTERS, ETC. 63 Respondent Local 728 requests that the complaint be dismissed on the ground that the General Counsel improperly divided a single cause of action by proceeding in this case and by proceeding concur- rently in International Brotherhood of Teamsters, et al . (Overnite Transportation Company), Case No. 11-CC-16, 130 NLRB 1007. The request is, denied for the reasons stated in the Board's original de- cision herein, 130 NLRB 1020. THE REMEDY As set forth in the Supplemental Intermediate Report, the Board on December 28, 1960, issued an Order in Overnite Transportation Company, 129 NLRB 1026, requiring, inter alia, that Overnite bargain upon request with Local 55, a Respondent herein, as the representative of Overnite's employees at its Asheville, North Carolina, terminal. In his discussion of the proposed remedy herein, the Trial Exam- iner stated that this outstanding bargaining order against Overnite "must be deemed a certification" of Local 55; and in his Conclusion of Law No. 3, the Trial Examiner found that "Respondent Local 55 has been certified as the representative of employees of Overnite at the Asheville, North Carolina, terminal within the meaning of Section 9 of the Act, at the time of the events herein." Stating that "Section 8(b) (4) (B) is not applicable where the labor organization whose recognition is sought `has been certified as the representative of [the involved] employees under the provisions of Section 9,1 11 the Trial Examiner concluded that the cease-and-desist order he was recom- mending herein against Local 55 be limited by being deemed, in effect, nonoperative pending satisfaction of the Board's outstanding bar- gaining order issued against Overnite in 129 NLRB 1026. We do not agree that a bargaining order remedying a violation of Section 8 (a) (5) constitutes a "certification" within the meaning of Section 8(b) (4) (B). Although, as the Trial Examiner noted, Board cases indicate that such a bargaining order may be in many respects tantamount to a certification, the Board has nevertheless expressly refused to ascribe to a bargaining order the effect of a certification? Accordingly, we neither adopt nor pass upon the Trial Examiner's conclusion that Section 8(b) (4) (B) is not applicable in the face of a certification. Nor do we adopt the' limitation which the Trial Ex- aminer, recommended with respect to the order against Local 55 4 8 See Northwestern Photo Engraving Company, 106 NLRB 1067, 1068; Squirrel Brand Co., Inc, 104 NLRB 289 * Member Brown agrees with the Trial Examiner with regard to the remedy as it affects Local 55 Member Brown is convinced for the reasons fully stated by the Trial Examiner in his Supplemental Intermediate Report that in the circumstances of this case he cor- rectly equated the 8(a) (5) bargaining order with a Board certification under Section 9 and concluded that Section 8(b) (4) (B) was inapplicable. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER .Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Respondents, Local Union No. 55, Local Union No. 71, and Gen- eral Drivers, Warehousemen & Helpers, Local Union No. 509, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, their officers, agents, successors,' and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, or commodities or to perform any services where an object thereof is (1) to force or require any such person engaged in commerce or in an industry affecting com- merce to cease doing business with Overnite Transportation Company; or (2) to force or require Overnite Transportation Company to recog- nize or bargain with Locals Nos. 55, 71, or 509, individually or col- lectively, unless said labor organizations shall have been certified as the representatives of the employees of Overnite Transportation Com- pany, under the provisions of Section 9 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 in Respondents' business offices, meeting halls, and all places where notices to their members are custo- marily posted, copies of the notice attached hereto marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Tenth Region (Atlanta, Georgia), shall, after being duly signed by authorized representatives of the Respondents, be posted by them immediately upon receipt thereof and be maintained by them for 60 consecutive days thereafter. Reasonable steps shall be taken by Re- spondents to insure that such notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Di- rector for the Tenth Region for posting, the employers willing, at 5 On June 21 , 1961, the Board amended its order in Overnite Transportation Company, 129 NLRB 1026 , to provide that Overnite bargain with Teamsters Local Union 61 "as - the successor to Teamster Local Union No. 55." This amendment was based in part on Local 61's allegation that Local 55 had been dissolved pursuant to an order of a U.S. district court . In these circumstances , and officially noting the entire record in 129 NLRB 1026, we find that Teamsters Local 61 is a successor to Teamsters Local 55 so far as our Order herein is concerned. 6In 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." INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 66 Overnite Transportation Company and 'at the premises of any other employer or person doing business with Overnite Transportation Com- pany who was involved in the activities of the Respondents herein. (c) Forthwith notify all their members and all employees repre- sented by them who are employed by persons engaged in commerce and in an industry affecting commerce, other than Overnite Transpor- tation Company, that they are revoking any prior instruction, request, or appeal to stop transporting or handling, in the course of their em- ployment, freight shipped to or by, or destined for shipment to or by,, Overnite Transportation Company, and all such freight may be handled by their members and such other employees without reprisal or penalty. Such notification shall be by mail and shall be in addition to that conveyed by the postings of the notices specified in para- graphs (a) and (b) above. (d) Notify the Regional Director for the Tenth Region, in writing,, within 10 days from the date of this Order, what steps they have taken to comply herewith. B. Respondent Truck Drivers & Helpers Local Union No. 728, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by any person engaged in commerce or in an industry affecting commerce doing business with Overnite Transpor- tation Company or by any other person engaged in commerce or in an industry affecting commerce to engage in , ,a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or com- modities or to perform any services where an object thereof is (1) to force or require 'any such person engaged in commerce or in an industry affecting commerce to cease doing business with Overnite Transporta- tion Company or with any other person engaged in commerce or in an industry affecting commerce; or (2) to force or require Overnite Transportation Company or, any other person engaged in commerce or in an industry affecting commerce to recognize or bargain with Re- spondent as the representative of their employees unless Respondent shall have been certified as the representative of such employees under the provisions of Section 9 of the Act. - 2. Take the following affirmative action, which it is found will ef- fectuate the policies of the Act : (a) Post in conspicuous places in Respondent's business offices, meeting halls, and all places where notices to its members are custom- arily posted, copies of the notice attached hereto marked "Appendix 624067-62-vol . 133-6 ` 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B." 7 Copies of said notice, to be furnished by the Regional Director for the Tenth Region (Atlanta, Georgia), shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for the Tenth Region for posting, the employers willing, at Overnite Transportation Company and at the premises of any other employer or person doing business with Overnite Transportation Company who was involved in the activities of the Respondent herein. (c) Forthwith notify all its members who are employed by persons engaged in commerce or in an industry affecting commerce other than ,Overnite Transportation Company, and all employees of said persons engaged in commerce or in an industry affecting commerce represented 'by it, that it is revoking any prior instruction, request, or appeal to stop transporting or handling, in the course of their employment, freight shipped to or by, or destined for shipment to or by, Overnite Transportation Company, and all such freight may be handled with- out reprisal or penalty. Such notification shall be by mail and shall be in addition to that conveyed by the postings of the notices specified in paragraphs (a) and (b) above. (d) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. C. IT IS FURTHER ORDERED that the complaint against Respondent International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, be, and it hereby, is dismissed. 7 See footnote G APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL UNIONS Nos. 55, 71, AND 509, INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, INDEPENDENT TO ALL INDIVIDUALS EMPLOYED BY OVERNITE TRANSPORTATION COMPANY; TO ALL INDI- VIDUALS EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECTING COMMERCE DOING BUSINESS WITH OVERNITE TRANSPORTATION COMPANY; AND TO ALL EMPLOYEES OF OTHER EM- PLOYERS WHO ARE REPRESENTED BY US AS THEIR COLLECTIVE- BARGAINING REPRESENTATIVE 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 : INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 67 WE WILL NOT engage in, or induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce doing business with Overnite Transportation Company to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, or commodities or to per- form any service where an object thereof is (1) to force or re- quire any such person engaged in commerce or in an industry affecting commerce to cease doing business with Overnite Trans- portation Company; or (2) to force or require Overnite Transpor- tation Company to recognize or bargain with us, individually or collectively, unless we shall have been certified as the representa- tives of the employees of Overnite Transportation Company, under the provisions of Section 9 of the Act. WE HEREBY revoke any prior instruction, request, or appeal to stop transporting or handling, in the course of your employment by any employer or person other than Overnite Transportation Company, freight shipped to or by, or destined for shipment to or by, Overnite Transportation Company, and all such freight may be handled by you without reprisal or penalty by us. LOCAL UNION No. 55, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, INDEPENDENT, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) LOCAL UNION No. 71, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS , CHAUFFEURS, WVAREHOUSE- MEN AND HELPERS OF AMERICA, INDEPENDENT, Labor Organization. Dated----- ----------- By------------------------------------- (Representative ) ( Title) GENERAL DRIVERS , WAREHOUSEMEN & HELPERS, LOCAL UNION No. 509, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, INDEPENDENT, 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. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL UNION No. 728, INTERNATIONAL. BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND, HELPERS OF AMERICA, INDEPENDENT ; TO ALL INDIVIDUALS EMPLOYED BY ANY PERSON ENGAGED IN COMMERCE OR IN AN INDUSTRY AFFECT- ING COMMERCE DOING BUSINESS WITH OVERNITE TRANSPORTATION- COMPANY ; AND TO ALL EMPLOYEES OF OTHER EMPLOYERS WHO, ARE REPRESENTED BY US AS THEIR COLLECTIVE -BARGAINING REPRESENTATIVE 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 engage in, or induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce doing business with Overnite Transportation Company or by any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles,. materials, or commodities or to perform any services where an object there of is (1) to force or require any such person en- gaged in commerce or in an industry affecting commerce to cease doing business with Overnite Transportation Company or with any other person engaged in commerce or in an industry affecting commerce; or (2) to force or require Overnite Transportation Company or any other person engaged in commerce or in an in- dustry affecting commerce to recognize or bargain with us as the, representative of their employees unless we shall have been certi- fied as the representative of such employees under the provisions, of Section 9 of the Act. WE HEREBY revoke any prior instruction, request, or appeal to stop transporting or handling, in the course of your employment by any employer or person other than Overnite Transportation Company, freight shipped to or by, or destined for shipment to or by, Overnite Transportation Company, and all such freight may be handled by you without reprisal or penalty by us. LOCAL UNION No. 728, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, INDEPENDENT, 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. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 69 SUPPLEMENTAL INTERMEDIATE REPORT AND RECOMMENDED ORDER 1. On November 6, 1959, I recommended dismissal of this case on procedural grounds, without consideration of the substantive allegations of the complaint. On March 1, 1961, a majority of the Board, disagreeing with the recommended disposition, re- manded the case for consideration and findings on the merits. (130 NLRB 1026.) Pursuant to the Board's directive, and upon the basis of the entire record in the case, I make the following further findings, conclusions, and recommendations. Ii. I reaffirm all findings of fact made in my original Intermediate Report and Recom- mended Order, except any which are inconsistent with the Board's Decision and Order remanding the case. Reference is made to those documents for understanding of background facts not herein recited. III. THE UNFAIR LABOR PRACTICES The complaint alleges that the Respondents engaged in violations of Section 8(b)(4)(A) and (B) of the Act in that, in connection with the attempt to secure recognition from Overnite, though not certified as collective-bargaining representative under Section 9 of the Act, they sought to induce emloyees of other employers to cease handling Overnite freight.' In a companion case to the instant one, Overnite Transportation Company, 130 NLRB 1007 (Case No 11-CC-16), and in the prior Intermediate Report in the instant case, it was found that the Respondent Locals were engaged in a joint venture, a joint and concerted action, to require Overnite to bargain with the Locals at various of its terminals located in North Carolina, South Carolina, and Georgia. Pursuant to that objective the Locals engaged in direct and secondary action in North Carolina and in Georgia. Case No. I1-CC-16 involved the action which occurred in North Carolina. There the Board found violations of Section 8(b)(4)(A) and (B) by the Locals. The present case involves action pursuant to the same design occurring in Georgia. I find that certain of the conduct in Georgia constituted violations of those provisions of the Act by the Locals, but not by the Respondent International. The Strike and the Picketing The strike against Overnite, accompanied by picketing of its terminals in the affected locations, began on May 17, 1959. The picket signs represented that the action was in behalf of all the Respondent Locals. Overnite Transportation Co. ON STRIKE Unfair to Teamsters members of Local 728 Atlanta, Ga. Local 71 Charlotte, N.C. Local 55 Asheville, N.C.-Greenville, S.C. Local 509 Columbia and Charleston, S.C. In Georgia the Overnite terminals picketed were located at Savannah and Atlanta. Respondent Local 728 is a Georgia local. It had responsibility for the conduct of the strike in its jurisdiction. Robert C. Cook is president of Local 728. At the meeting of that Local, at which the strike was announced, President Cook told the union members, among whom were employees of employers doing business with Overnite, that they should use their own judgment as to whether they should handle Overnite freight. We turn now to the specific incidents found to constitute unfair labor practices. Any occurrences not detailed therein have been found not to- reflect substantial evi- dence of unfair labor practices. All the companies referred to, other than Overnite, I The Board has found that in resisting the organizational efforts of Respondents Over- nite engaged in unfair labor practices in violation of Section 8(a)(1)(3) and (5) of the Act. Overnite Transportation Co, 129 NLRB 1026 (Case No 11-CA-1542) ; Overnite Transportation Co., 129 NLRB 261 (Case No. 11-CA-1327 , at al.). 70 DECISIONS OF NATIONAL LABOR RELATION S BOARD have collective-bargaining contracts with the Teamsters containing a standard "hot cargo" clause reserving to the Union and its members the right to refuse to handle unfair or struck goods. President Cook duly notified the contracting companies in his jurisdiction of the commencement of the strike against Overnite. These contracts also have a clause to the effect that union stewards have no author- ity to take strike or other action interrupting the employer's business in violation of the agreement. The Incidents of Inducement 1. George Davenport, a member of Local 728, was an employee of Atlanta- New Orleans Motor Freight Lines, Atlanta. Asked by his foreman to handle some Overnite freight, Davenport called President Cook and asked Cook whether he should do so. Cook replied, "I can't tell you anything You do as you please. You don't have to handle no scab freight." Davenport asked Cook whether he would be protected if he did not handle the freight. Cook assured Davenport that he would be protected. As a result of that conversation Davenport did not handle any Overrate freight. 2. Oscar Evans is an organizer for Joint Council No. 9, an organization of repre- sentatives of Teamster local unions in North and South Carolina, including Respond- ent Locals 55 and 71. As described in the Intermediate Report in Case No. 11-CC-16, Joint Council No. 9 participated in the meetings of the Respondent Locals at which the action against Overnite was decided upon. Evans, a former employee of Overnite and a resident of Atlanta , was hired in connection with the Respondent Locals' campaign at Overnite. He represented Joint Council No. 9 at two of these meetings. He assisted in picketing Overrate premises in Georgia. I find Evans to be an agent of the Respondent Locals in the conduct of the strike. During the course of the strike Evans asked over-the-road drivers for three trucking companies, Associated Transport Inc, Johnson Transfer Company, and Carolina Freight Carriers Corporation, "to respect the picket line" Since these men were over-the-road drivers, who operated exclusively between the terminals of their own companies and made no pickups or deliveries at Overnite terminals, Evans' request must be, and is, construed, particularly in the light of the "hot cargo" clauses, to be requests that the drivers refuse to handle Overnite freight. 3 L. B. Turner is union steward at the Atlanta terminal of Georgia-Florida and Alabama Transportation Company (G.FA.), a trucking firm whose contract with Local 728 provided inter alia that supervisors should not do any work covered by the agreement. On May 26, 1959, an Overnite truck came into the G F.A. terminal. Steward Turner told G.F.A.'s dock foreman, Lester Hatton, and employee Roy Collura that the employees were not supposed to handle Overnite freight while Overnite was on strike. Foreman Hatton proceeded to check the freight himself, whereupon Turner told the employees that they were not to work while Hatton was working, as this was a violation of the contract. The employees then ceased to work until Hatton had finished checking the Overnite shipment In the circumstances. Steward Turner's action constituted inducement of employ- ees of G F.A. to cease handling Overnite freight. The sit-down. whatever its imme- diate justification , was a consequence of, and in aid of, the original refusal to handle the goods 4. At the terminal of Benton Rapid Express Company, Savannah, Georgia, the employer asked Bill F. Butterworth, shop steward of Local 728, whether Butter- worth would handle Overnite freight Butterworth replied that he would refuse to do so. Employees asked Butterworth what they should do about handling the freight. Butterworth advised them that, under the "hot cargo" clause, they did not have to handle it. Subsequently one employee did refuse to handle Overnite cargo. 5 At B C. Transportation Co . when an Overnite truck appeared at the terminal, Shop Steward Robert Kennedy told B C.'s employees that he would not check Over- nite freight because Overnite was on strike. As a result the Overnite driver had to return the freight to the Overnite warehouse. 6. At Great Southern Trucking Company , Tames Underwood, steward for Local 728 and a driver for Great Southern, refused, in the presence of other employees of Great Southern, to pull a trailer bearing Overnite freight. When asked by Great Southern employees what they should do about handling Overnite freight, Under- wood told them to use their own judgment, adding that they had the right not to handle the goods. Underwood testified that it was unnecessary for him to tell em- ployees what he would do, saying, "they had already seen what I would do." Concluding Findings Insofar as directed to employees of secondary employers, the effect of the conduct of President Cook , Organizer Evans, and the union stewards , described in the num- INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 71 bered paragraphs above, in the context of the Respondent's overall pattern of ac- tion, was to induce those employees to cease handling Overnite freight with the ob- ject of securing recognition. Certain of the individual instances, if occurring in isolation, might have been deemed inconclusive or insubstantial. They must be considered, however, in the whole framework of conduct and objective. When so viewed they represent constituent elements of a unified and illegal program, and are therefore unlawful. It is no defense that under the law as it existed at that time a "hot cargo" clause was not per se illegal. A contractual provision authorizing an employee, boycott did not then, and it does not now, permit union inducement of employees to exercise such a prerogative. Local 1976, United Brotherhood of Car- penters, etc. (Sand Door & Plywood Co.) v. N.L.R.B., 357 U.S. 93. The Respondent's assertion that the stewards were without authority to induce employees not to handle Overnite cargo is without merit. Clauses in Local 728's contracts with employers defining the authority of stewards as between the parties are of no relevance in determining the Union's statutory responsibility for the stew- ards' actions. Moreover whatever the provisions of the contracts, the conduct of the stewards was in furtherance of the objectives of the Locals in their controversy with Overnite and, so far as employees could judge, within the apparent scope of the stewards' powers as union representatives. Statements by stewards or union officials that employees were free to use their own judgment, made under circum- stances-such as here-where the union representatives suggested what action they favored, even providing example by refusing themselves to handle the disapproved' goods, do not suffice to neutralize the normal effect of the officials' conduct, namely, inducement of employees to refuse to perform their customary services. It is found' that the stewards were acting within the scope of their authority. Cory Corporation, 84 NLRB 972, 973; The Howland Dry Goods Company, 85 NLRB 1037, footnote 2; General Electric Company, 126 NLRB 123, 125. Since this was a joint venture, the Respondent Locals are jointly responsible, even- though the conduct in the particular instances here may have been carried on under the independent direction of Local 728, and without the specific authorization of the other locals In the circumstances Local 728 was the agent of the other locals, and acting within the scope of its authority to prosecute the joint objective of all' in the area of its jurisdiction. However, there is no substantial evidence of responsibility by the International for the unfair labor practices of the locals. For the reasons more fully explicated in the Intermediate Report on this issue in Case No. 11-CC-16, it will be recom- mended that the allegations of the instant complaint respecting the International be- dismissed. It is found that since May 17, 1959, Respondent Local Unions 55, 71, 509, and 728 have induced and encouraged employees of certain employers doing business with Overnite Transportation Company, namely, Atlanta-New Orleans Motor Freight Lines, Associated Transport Inc., Johnson Transfer Company, Carolina Freight Carriers Corporation, Georgia-Florida and Alabama Transportation Com- pany, Benton Rapid Express Company, B C. Transportation Company, and Great Southern Trucking Company, to engage in strikes or concerted refusals in the course of their employment to perform services for their employers, with an object of (a) forcing or requiring the said employers to cease doing business with Overnite; and (b) forcing or requiring Overnite to recognize and bargain with said Local Unions as the collective-bargaining representative of employees of Overnite It is further found that by such conduct the Respondent Locals violated Section 8(b)(4)(A) and' (B) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Locals 55, 71, 509, and 728, set forth in section III, above, occurring in connection with the operations of Overnite, have a close, inti- mate, 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 Locals 55, 71, 509, and 728 have engaged in violations of Section 8(b)(4)(A) and (B) of the Act, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. There remains the question of the breadth of the recommended order, arising from the fact that on December 28, 1960, the Board in Case No. 11-CA-1542, referred' to in footnote 1, supra, issued an order requiring Overnite to bargain with Local 55 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the representative of Overnite's employees at its Asheville, North Carolina, ter- minal . That order was based on the Board's findings that the Respondent sought by unfair labor practices to prevent the organization of its employees, that on and at all times since March 18, 1959, Local 55 was the representative of the Asheville employees in an appropriate bargaining unit within the meaning of Section 9 of the Act, and that Overrate refused to bargain with Local 55 in violation of Section 8(a)(5). That refusal to bargain began, according to the Board's findings, on March 25, 1959, and continued through the period the instant events were taking place. There is no indication that it has since been remedied. Section 8(b) (4) (B) is not applicable where the labor organization whose recog- nition is sought "has been certified as the representative of [the involved] employees under the provisions of Section 9." A representative union whose legal attempts to secure recognition are met with opposition from. the employer, including unfair labor practices and refusal to bargain, cannot safely risk an election to secure the con- ventional certification. Its only effective remedy is to file unfair labor practice charges and secure an order directing the employer to bargain with it. While such an order is not a certification to the extent of applying the usual presumption of majority status for a period of 1 year after the date of issuance of the order (Squirrel Brand ,Co., Inc., 104 NLRB 289, 290; Northwestern Photo Engraving Company, 106 NLRB 1067, 1068; Armco Drainage ,& Metal Products, Inc., 116 NLRB 1260; Darlington Veneer Company, Inc., 123 NLRB 197, 201), it must, of course, be considered as a 'certification of representative status under Section 9 as of the date of the events on which the order is based. For if it is not, there is no discernible statutory basis for a, bargaining order. The Board has said that a bargaining order is " `often' or `in many respects' tantamount to a certification." See Squirrel Brand Co., supra, foot- note 5; Marshall and Bruce Company, 75 NLRB 90, 96; Cuiman Lumber Company, Inc., 82 NLRB 296, 299-300; Atlanta Metallic Casket Company, 91 NLRB 1225, 1237. The bargaining order must be effective until the refusal to bargain is remedied. Squirrel Brand Co., Northwestern Photo Engraving Company, Armco Drainage & Metal Products, Inc., supra. To that extent, at least, it must be deemed a certifica- tion. During such a period of time labor organizations are not to be considered as forbidden by Section 8(b) (4) (B) from effort to require the employer to bargain in the appropriate unit. The order recommended herein is not to be differently con- strued. Otherwise we would have the anomalous situation of a union which has been the victim of unfair labor practices being prohibited from. taking action per- mitted a union which has not been subjected to them. This would' encourage the commission of unfair labor practices.2 With the exception of this reservation the recommended remedy follows that prescribed by the Board in Case No. I1-CC-16 and for the reasons there stated. 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. Overnite Transportation Company is engaged in commerce within the meaning of Section 2 (6) and (7) ;of the Act. 2. The Respondents, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, and Local Unions 55, 71, 509, and 728, affiliated therewith, are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent Local 55 has been certified as the representative of employees of Overnite at the Asheville, North Carolina, terminal within the meaning of Section 9 of the Act at the time of the events herein. 4. Respondent Locals 71, 509, and 728 have not been certified, at any material time, as the representative of any employees of Overnite within the meaning of Section 9 of the Act. 5. Since May 17, 1959, Respondent Local Unions 55, 71, 509, and 728 have induced and encouraged employees of certain employers doing business with Overnite Transportation Company in Savannah and Atlanta, Georgia, to engage in strikes or concerted refusals in the course of their employment to perform services for their employers, with an object of (a) forcing or requiring the said employers to cease doing business with Overnite; and (b) forcing or requiring Overnite to recognize 9I have noted that no such caveat as here suggested is contained in the Board' s order is Case No 11-CC-16, though it issued after the decision in Case No. 11-CA-1542 Since the CC decision does not indicate that IN- point was there considered, I deem the question open. SELECT FOODS, INC. 73 or bargain with Respondent Locals as the collective-bargaining representative of employees of Overnite. 6. The aforesaid action constitutes unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4)(A) and (B) of the Act. 7. International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help- ers of America has not by any conduct herein engaged in unfair labor practices within the meaning of Section 8(b) (4) (A) or (B) of the Act. [Recommendations omitted from publication.] Select Foods, Inc. and Local 55, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 11-CA-1713. September 12, 1961 DECISION AND ORDER On March 28, 1961, Trial Examiner Sidney Sherman 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 General Counsel and the Respond- ent filed exceptions to the Intermediate Report and supporting briefs. 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 [Members Rodgers, Fanning, and Brown]. 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 entire record in this case, including the Intermediate Report, the exceptions, and briefs, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations. ORDER Upon the entire record in this 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, Select Foods, Inc., Charlotte, North Carolina, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local 55, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, by dis- criminating in regard to their hire or tenure or any terms or con- ditions of employment. 133 NLRB No. 14.