Kenosha Auto Transport Corp.

National Labor Relations Board - Board Decisions

Aug 15, 1955

113 N.L.R.B. 643 (N.L.R.B. 1955)

KENOSHA AUTO TRANSPORT CORPORATION 643
tenure of employment because of an employee's membership in or activity on be-
half of any labor organization.
NATIONAL ELECTRONIC MANUFACTURING CORPORATION,
Employer.
Dated---------------- By----------------------------------------------(Representative ) ( Title)
MYLSHER REALTY CORPORATION,
Employer.
Dated----------------- By----------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Kenosha Auto Transport Corporation and Ivan Hazel
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, AFL, Local 604 and Ivan Hazel.
Cases Nor.14-CA-1164 and 14-CB-230. August 15,1955
DECISION AND ORDER
On August 9, 1954, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceedings, finding that
Respondents, Kenosha Auto Transport Corporation, herein called the
Respondent Company, and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, AFL, Local 604,
herein called Respondent Union, had engaged in and were engaging in
certain unfair labor practices and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. The Trial Ex-
aminer also found that Respondents had not engaged in certain other
unfair labor practices and recommended that the complaint be dis-
missed in that respect. Thereafter, Respondents and the General
Counsel filed exceptions to the Intermediate Report and supporting
briefs.
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in these
cases , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifications :
We find, in agreement with the Trial Examiner, that the Respondent
Company and the Respondent Union violated Section 8 (a) (3) and
(1) and Section 8 (b) (1) (A) and (2) of the Act, respectively, by
maintaining an agreement or understanding delegating to the Re-
spondent Union the authority finally to determine controversies relat-
ing to seniority. In addition, we find that the Respondents also vio-
113 NLRB No. 69.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
latex" these- subsections of the Act by the Company's acquiescence in
the Union's unilateral determination of the seniority status of a par-
ticular employee, Ivan Hazel, thereby implementing the unlawful
seniority agreement. It has already-been decided that the delegation
of such power to a union and its exercise by the union, is inherently
coercive and discriminatory in its broad impact on the employees in
the-bargaining unit.'..-
Apart from the explicit provision delegating authority in matters of
seniority to the Union, the contract here in question contains various
other clauses referring to the relative status rights of different cate-
gories of employees covered by the agreement. Apparently because
of these other contract provisions, the Trial Examiner concluded that
the treatment imposed upon Hazel by the Company and the Union
did not constitute unlawful discrimination. We reject this finding
because it is clear on the record as a whole that the Respondents
dropped Hazel to a lower position on the seniority list, not pursuant
to any agreed upon nondiscriminatory interpretation of the other
clauses in the contract, but solely in effectuation of the unlawful clause
delegating exclusive authority to the Union.
As more fully set out in the Intermediate Report, the Respondents
maintained -agreements or understandings providing for seniority by
job classification in both city and over-the-road driver units. Thus,
upon his transfer from the over-the-road unit to the city unit, Hazel-
the driver longest employed at the St. Louis terminal-was considered
the'-junior employee in the latter unit because he had never before
worked there., When he transferred back to the over-the-road group
a year later, the Company, on the basis of his long employment as an
over-the-road driver, placed his name on the top of the list for that
group. - The Respondents claim, and the Trial Examiner found, that
the Respondents, thereafter. redetermined Hazel's seniority by apply-
ing their agreement concerning seniority by job classification. The
record does not support this assertion. - -
The past contract covering the over-the-road drivers,.which Re-
spondents have continued-in practice since its expiration in 1952, pro-
vides for seniority by job classification. Yet that contract makes no
mention of the effect to be given to prior service in a job classification
in determining-the seniority of an employee returning to that' classi-
fica'tion. 'Also, the conduct of - Respondent Union, "in exercising, its
unilateral power to determine Hazel's seniority, indicates that the
seniority: agreement maintained by Respondents made no provision
1 Pacific Intermountain Express Company, 107 NLRB 837; Minneapolis Star and Tribune
Company, 109 NLRB 727; North East Texas Motor Lines, Inc., 109 NLRB 1147; Chief
Freight Lines Company, 111 NLRB 22
The initial execution of a contract containing this type of seniority clause is, of course,
also unlawful, but in this case we are foreclosed from making such additional unfair labor
practice finding because it is not alleged and it occurred more than 6 months before the
charge was filed. -
KENOSHA AUTO TRANSPORT CORPORATION 645
for the determination of seniority under such circumstances. As
stated, upon his return to the over-the-road unit, Respondent Com-
pany's terminal manager placed Hazel at the top of the seniority roster.
Shortly thereafter a representative of the Union informed the terminal
manager that a poll of the over-the-road drivers would be necessary
to determine Hazel's proper status, the Union having received some
complaints about the matter: The drivers voted against Hazel and
the'terminal,manager, at the Union's direction, reduced Hazel to the
lowest roster position., Hazel, with the approval of the Union's presi-
dent and the assistance of the terminal manager, then prepared and
circulated a petition in which a majority of the drivers supported his
claim to top seniority. When informed by the Union that the senti-
ment among the drivers indicated by the petition would control, unless
further complaint were raised, the terminal manager returned Hazel
to the top of the roster. But in a few days the Union informed the
terminal manager that another vote would be necessary, and pursuant
to the result of this second poll, the Union through the Company again
relegated Hazel to the lowest seniority position.
On these facts, we can hardly find, as the Respondents would have it,
that they did nothing more than apply the contract provisions as they
found- them. Indeed, the successive shifts in position on the part of
the Union, and the unquestioning acquiescence by the Company in
these turnabout positions, establish beyond question that the Union
was in complete control of Hazel's status and that it acted without
regard to any contract arrangement other than the invalid delegation
of authority to make a unilateral determination of Hazel's seniority
status. It is clear, therefore, and we find, that Hazel was subjected
to unlawful discrimination when he was relegated to a lower position
on the over-the-road driver seniority list. Accordingly, we shall order
that Hazel be restored to the position where he was placed by the Com-
pany at the top of the seniority list prior to the unlawful discrimination
against him, without prejudice to the right of the Company and Union
to determine his seniority position by recourse to the valid provisions
of their mutual agreement and in a manner not violative of the Act.
ORDER
Upon the entire record in this case, pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent Company, Kenosha Auto Transport Corpora-
tion, St. Louis, Missouri, its officers, agents, successors, and assigns,
shall :
(a) Cease and desist from :
(1) Performing or giving effect to the provisions in its contracts
and/or understandings with the Respondent Union which delegate to
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent Union authority to settle controversies relating to
seniority.
(2) Entering into or renewing any agreement or understanding
with any labor organization which contains provisions delegating to
the Union authority to determine the seniority of employees or to settle
controversies relating to seniority, and enforcing such provisions.
(3) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed in Section 7
of the Act, except to the extent permitted by Section 8 (a) (3) of the
Act.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1), Post at. its terminal in St. Louis, Missouri, copies of the notice
attached hereto, marked "Appendix A." 2 Copies of the notice, to be
furnished by the Regional Director for the Fourteenth Region, shall
be posted by the Respondent Company immediately upon their receipt,
after being duly signed by an official representative of the Company.
When posted, they shall remain posted for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to drivers are customarily posted. Reasonable steps shall be taken
by the Respondent Company to insure that these notices are not altered,
defaced, or covered by any other material.
(2) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
II. The Respondent Union, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, AFL, Local
604, its officers, representatives, agents, successors, and assigns, shall:
(a) Cease and desist from:
(1) Performing or giving effect to the provisions in its contracts
and/or understandings with the Respondent Company which delegate
to the Respondent Union the authority to determine the seniority of
employees or to settle controversies relating to seniority.
(2) Entering into or renewing any agreement or understanding
with any employer which contains provisions delegating to the Re-
spondent Union the authority to determine the seniority of employees
or to settle controversies relating to seniority, and enforcing such
provisions.
' (3) In any like or related manner causing or attempting to cause
the Respondent Company, its officers, agents, successors, and assigns,
to discriminate against employees in violation of Section 8 (a) (3)
of the Act.
2 In the event that this Older 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 "
KENOSHA AUTO TRANSPORT CORPORATION 647
(4) In any like or related manner restraining or coercing em-
ployees of the Respondent Company in the exercise of the rights guar-
anteed in Section 7 of the Act, except to the extent permitted by Sec'
tion 8 (a)' (3) of the Act.
(b) Take the following action which the Board finds will effectu-
ate the policies of the Act :
(1) Post at its business offices and meeting halls in St. Louis, Mis-
souri, copies of the notice attached marked "Appendix B." S Copies
of the notice, to be furnished by the Regional Director for the Four-
teenth Region, shall be posted by the Respondent Union immediately
upon their receipt, after being duly signed by an official representative
of the Union. When posted, they shall be maintained by it for a pe-
riod of sixty (60) consecutive days thereafter. Reasonable steps shall
be taken by the Union to insure that these notices are not altered, de-
faced, or covered by any other material.
(2) Mail copies of the said notice to the Regional Director for the
Fourteenth Region, for posting at the office and places of business of
Respondent Company, in places in St. Louis, Missouri, where notices
to drivers are customarily posted. Copies of the notice, to be fur-
nished by the Regional Director for the Fourteenth Region, shall be
returned forthwith to the Regional Director, after they have been
signed by an official representative of the Union, for such posting.
(3) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
III. The Respondents, Kenosha Auto Transport Corporation, St.
Louis, Missouri, and International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, AFL, Local 604, their
officers, representatives, agents, successors, and assigns, shall jointly
and together take the following action which the Board finds will ef-
fectuate the policies of the Act :
(1) Restore Ivan Hazel's name to the top of the seniority list for
the over-the-road driver unit at the Respondent Company's St. Louis
terminal, henceforth subject only to lawful and nondiscriminatory
contract or collective-bargaining provisions.
MEMBER MURDOCK, dissenting:
This case, in my opinion, is an. excellent illustration of. the error
of the majority's decision in Pacific Intermountain Express, supra,
which held that the mere acceptance by a union of the right to de-
termine an employee's seniority status is per se a violation of Section
8 (b) (2). There the Board held that it was to be presumed "that
3In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the avoids "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of The United States Court of Appeals, Enforcing an Order "
379288-56-vol. 113-42
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such delegation is intended to, and in fact will, be used by the union
to encourage membership in the Union." I did not participate in that
decision. However, in my dissenting opinion in Minneapolis Star
and Tribune Company, supra, I pointed out that the Board could
not properly, and should not logically, presume that any provision of
a contract, lawful on its face, would be used: in an unlawful manner.
The majority -finds in the instant case that Hazel was "subjected
to unlawful discrimination."- This finding is based solely on the, pre-
sumption that the Union must have determined Hazel's seniority
status for the purpose of encouraging union membership or an obliga-
tion of union membership. But the record is perfectly clear, as the
majority's statement of facts reveals, that Hazel was the union mem-
ber of the longest standing among the Employer's drivers at this
terminal. The determination of his seniority in no way involved any
disparity of treatment between members and nonmembers of the
Union and was in no way related to his performance of any obliga-
tion of union membership. Indeed, there is not the slightest evidence
here that Hazel was denied any seniority to which he may otherwise
have been entitled either by contract or past practice. The contract
provided for employee seniority by "job classification." But Hazel's
previous service in the unit raised a question of the effect to -be 'ac-
corded accumulated seniority, a subject not covered by the contract.
For. this reason, the Union; the Company, and Hazel himself per-
mitted his seniority to be determined entirely by the wishes of the in-
dividual truckdrivers in Hazel's unit. In my opinion, this was a demo-
cratic and inoffensive way to resolve the issue. Certainly, no in-
ference is warranted that Hazel, who had been a union member longer
than any other employee, was placed at the bottom of the seniority
roster to encourage union membership or the performance of a union
obligation. Yet this is exactly the conclusion that the majority
reaches.
The statute requires that the Board base its finding of an unfair
labor practice upon the "preponderance of the testimony." The ma-
jority in this case is unable to find the slightest shred of testimony
that the Union's determination of Hazel's seniority was intended to,
or did in fact, encourage membership in the Union. Indeed, as indi-
cated above, the evidence is directly to the contrary. Undeterred,
however, by all of this evidence, the majority insists that the Pacific
Intermountain Express presumption is irrebuttable and must be fol-
lowed. In doing so the majority accords more weight to a presump-
tion based upon general inferences than it does to the actual evidence
in this record proving unquestionably the contrary conclusion. I
would think it clear that the Board does not have the power to draw
conclusions inconsistent with the record evidence in the case. -
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with, re-
strain , or coerce our employees in the exercise of rights guaran-
teed in Section 7 of the Act, except to the extent permitted by
Section 8 (a) (3) of the Act.
WE WILL, jointly with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, AFL,
Local 604, restore Ivan Hazel's name to the top of the seniority
list for the over-the-road drivers' unit in our St. Louis terminal
henceforth subject only to lawful and nondiscriminatory contract
or collective bargaining provisions.
KENOSHA AUTO TRANSPORT COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
To ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL, LOCAL
604, AND TO ALL EMPLOYEES OF KENOSHA AUTO TRANSPORT 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 perform or give effect to the provision in our
contracts and/or understandings with Kenosha Auto Transport
Company which delegates to us authority to settle controversies:
relating to seniority.
WE WILL NOT enter into or renew any agreement or understand-
ing with any employer which contains provisions delegating to-
us the authority to determine the seniority of employees or to-
settle controversies relating to seniority, and we will not enforce
such provisions.
WE WILL NOT in. any like or related manner cause or attempt-
to cause Kenosha Auto Transport Company, its officers, agents,
successors, and assigns, to discriminate against employees in
violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees of Kenosha Auto Transport Company in the exercise
of the rights guaranteed in Section 7 of the Act, except to the
extent permitted by Section 8 (a) (3) of the Act.
WE WILL, jointly with Kenosha Auto Transport Corporation,
restore Ivan Hazel's name to the top of the seniority list for the
KENOSHA AUTO TRANSPORT CORPORATION 651
over-the-road drivers' unit at the corporation's St. Louis terminal
henceforth subject only to lawful and nondiscriminatory contract
or collective -bargaining provisions.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS
OF AMERICA, AFL, LOCAL 604,
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
STATEMENT OF THE CASE
Charges having been duly filed and served ; complaints , an order consolidating the
above-entitled cases , and a notice of hearing having been issued and served by the
General Counsel of the National Labor Relations Board ; and answers having been
filed by the above -named Respondents , a hearing involving allegations of unfair labor
practices in violation of Section 8 (a) (1) and ( 3) and Section 8 (b) (1) (A) and
8 (b) (2) of the Act, was held in St . Louis, Missouri , on May 10 and 11, 1954, before
the duly designated Trial Examiner.
As to the unfair labor practices , in substance the complaints ( as amended at the
hearing ) allege and the answers deny that: ( 1) At all material times there has existed
between the Respondents agreements or an understanding that seniority controversies
shall be referred to the Respondent Union for settlement ; (2) pursuant to such agree-
ment or understanding the Respondent Union caused the Respondent Company, in
violation of Section 8 (a) (3) of the Act , to discriminate in the seniority standing
of employee Ivan Hazel ; and (3 ) by maintaining the aforesaid agreement and by dis-
criminating against Hazel the Respondents have restrained and coerced employees in
the exercise of rights guaranteed by the Act.
At the hearing all parties were represented and were afforded full opportunity to
be heard , to examine and cross -examine witnesses , to introduce evidence pertinent
to the issues, to argue orally upon the record, and to file briefs and proposed findings
of fact and conclusions of law. , Briefs have been received from all parties.
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 RESPONDENT COMP&NY
Kenosha Auto Transport Corporation is an Ohio corporation with its principal
office at Kenosha, Wisconsin , and a terminal for its auto transport business at St.
Louis, Missouri . It is licensed to do business in all States of the United States , either
as a private transportation company or as a common carrier under certificate from
the Interstate Commerce Commission.
It is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers
of America , AFL, Local 604 , is a labor organization admitting to membership em-
ployees of the Respondent Company at its St. Louis terminal.
HI. THE UNFAIR LABOR PRACTICES
A. The issues
The major issues in this case may thus be summarized : ( 1) Whether or not, by
actual contract or mutual understanding , there exists between the Respondents an
agreement illegally delegating to the Respondent Union control of employment con-
652 DECISIONS OF NATIONAL'LABOR_ RELATIONS BOARD
ditions, specifically as to determination of seniority standing ; and (2 ) whether or not
actual discrimination , pursuant to such illegal delegation of authority , was visited
upon employee Ivan Hazel.
B. The agreement provisions
A recital of facts pertinent to issue ( 1) now follows:
Working at or out of the St. Louis terminal , under the managership of Leonard
Franklin, are two classifications of the Respondent Company's employees : over-the-
road drivers who handle the interstate movement of motor vehicles , and city em-
ployees who operate mostly within the city limits of St. Louis . About 12 men are in
the first group, normally 1 or 2 in the latter. For the past 10 years or more the
Respondent Union has been the exclusive bargaining representative of all employees
in both classifications . For the past several years negotiations and resultant contracts
have been based upon a separate unit for each of the 2 classifications , and all such
agreements have contained the usual union-shop clause , requiring membership in
the Respondent Union after the legal 30 -day period . The legality of the union-shop
clause is not in issue.
There is no dispute that the city employees are now covered by a written, 4-year
contract , executed in October 1953, which contains the following provisions : ( article
III, section 2 (b) )
Terminal seniority shall prevail at all times in accordance with job classification.
A list of the employees arranged in order of their seniority in accordance with
job classification shall be posted in a conspicuous place and shall be available to
all employees . Any controversy over the employees ' seniority shall be referred
to the Union for settlement . In case of a reduction of forces , employees longest
in the service of the Employer , in accordance with the job classification , shall be
retained , except as otherwise provided in this Agreement... .
There is some dispute as to whether or not the over-the-road drivers are currently
covered by a written and binding agreement containing a clause similar to that quoted
above . It appears that for a number of years it has been the custom for a group of
Teamsters ' locals, called the National Truckaway and Driveaway Conference, to
negotiate with a group of employees engaged in transporting automobiles and to enter
into periodic national agreements . Both of the Respondents have, in the past, entered
into such agreements . The latest such national agreement was made in March 1952,
and is due to run for 5 years . Dale Ferris , representing the Respondent Union,
participated in negotiations resulting in this agreement ; his name appears as a signa-
tory on the printed copy of the agreement in evidence ; and as a witness he admitted
not having disavowed the appearance of his name thus printed , but he denied
actually having signed the original document . On the contrary , the Respondent
Company concedes that its representative signed it , and its terminal manager testi-
fied that up to just before the hearing he had believed that it had also been signed by
the Union and was binding upon both parties . It seems to the Trial Examiner to be
an unnecessary waste of time and effort to resolve the technical controversy raised by
lack of proof that Ferris actually signed and the Union's somewhat equivocal claim,
made at the hearing that therefore the contract is not binding. As to the one issue
raised by General Counsel-that relating to a seniority provision , the current docu-
ment contains the following : ( article IV, section 1)
Any controversy over the employees ' standing on such [seniority ] lists shall be
referred to the Union for settlement . . Any controversy over the employees'
seniority shall be referred to the Union for settlement. Such determination
shall be made without regard to whether the employees involved are members
or not members of a Union.
And the preceding national contract for the same drivers, covering a period from
1950-52, which Ferris said had been continued in practice and observed by the
parties since 1952, contains the following : (article III, section 2)
Terminal seniority shall prevail at all times in accordance with job classifica-
tion . . . Any controversy over the employees ' seniority shall be referred to
the Union for settlement.
Thus it is plain that in essence the same delegation of the employer's authority to
determine seniority is made explicit in both contracts , whichever is actually in effect.
And it is equally clear, from the testimony of Ferris, Franklin, and the Complainant
Hazel, That in practice the Respondent Company has yielded to the Respondent
Union's demand to permit it to settle the only seniority controversy revealed by the
'record to have arisen during the material period. As noted more fully in the follow-
KENOSHA AUTO TRANSPORT CORPORATION 653
ing section of this report, after first placing Hazel in a seniority position according
to his judgment, Franklin bowed to the Respondent Union's insistence that it de-
termine his proper seniority standing. And as a• witness Franklin answered in the
affirmative when asked, in effect, if he had permitted the Union to settle the dispute
because he believed "that the contracts which you assumed, testified you thought
were in existence, called for all seniority conflicts to be decided by the Local."
In summary, the Trial Examiner concludes and finds, from the preponderance of
credible evidence, that at all material times there has existed an agreement between
the Respondents, whether oral, written, signed, duly executed, or a mutual under-
standing observed in practice, whereby-to quote the language of the Board in
Pacific Intermountain Express Company (107 NLRB 837)-"the Respondent Com-
pany delegated to the Respondent Union complete control over the determination
of seniority." And since here, as in the above-cited case, the evidence also shows
that seniority standing determines the assignment of runs and the reduction in-force,
the delegation of such seniority control in effect gives the Respondent Union authority
to determine work assignments and reduction in force.
As to the legal effect of such delegation of authority, the Board in the same case
said:
we believe that such a provision is itself violative of the Act, even
though it does not on its face provide that the union shall make its seniority
determination on the basis of union affiliation . it is to be presumed, we
believe, that such delegation is intended to, and in fact will, be used by the
union to encourage membership in the union. Accordingly, the inclusion of a
bare provision . that delegates complete control over seniority to a union is
violative of the Act because it tends to encourage membership in the union.
And because we believe that it will similarly tend to encourage membership in
the union, we also conclude that, the inclusion of a statement . . . that seniority
will be determined without regard to union membership is not by itself enough
to cure the vice of giving to the union complete control over the settlement of
a "controversy" with respect to seniority.
As an agent of the Board, in this case the Trial Examiner must adopt the conclusions
just quoted. The basic facts are similar . The current city-drivers' contract, existence
of which is not disputed, contains the bald delegation to the Union of control over
seniority controversies. The current over-the-road drivers' contract, which the Re-
spondent Company considered to be in effect up to the time of the hearing, also in-
cludes the statement: "Such determination shall be made without regard to whether
the employees involved are members or not members of the Union," but this pro-
vision the Board found to be insufficient to cure the evil of the delegation of
authority.
Moreover, counsel for the Respondent Union in his brief tacitly admits the vio-
lation when he says: ". . the Union is not now contending that the sentence to
which exception is taken shall continue to be effective. It expressely renounced the
same in the record before the Trial Examiner." He also concedes that such "re-
nunciation" was not communicated to the employees involved before the hearing,
but urges that no order would have meaning "except perhaps to prevent any possible
repetition in the future." Not only does his argument against a cease and desist order
lack merit in the light of the long court history of remedial orders, but it avoids the
more positive issue in these consolidated cases-the actual delegation of seniority
control In effect he is saying "we agree that under the law we should not have
accepted such delegation and do not intend to exercise it." He does not, and indeed
cannot , speak for the employer who has, pursuant to an agreement which the record
shows has been observed by him, delegated to the Union an item of employment con-
trol which the Board has found the Act prohibits.
In short, the Trial Examiner concludes and finds that the evidence sustains the
allegations of both complaints relating to the maintenance of agreements between
the Respondents delegating control over seniority controversies to the Respondent
Union, and that thereby the Respondent Company and the Respondent Union have,
respectively, violated Section 8 (a) (1) and (3) and Section 8 (b) (1) (A) and (2)
of the Act.
C. The alleged discrimination against Hazel
The relevant facts bearing upon issue (2) are as follows:
Hazel came to the St. Louis terminal as an over-the-road driver in 1947. In
November 1952, his request was granted for transfer to the city yard. At the time
of his request, according to his own testimony, he held the top seniority position
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the over-the-road driver classification . Upon his transfer , also according to
his own testimony , he was placed , without objection on his part, at the bottom
seniority position in the city -driver unit . The evidence fully warrants the finding that
voluntarily , and in accordance with the existing agreements , Hazel was transferred
from one classification to another and from one seniority position to another. The
evidence also shows that at the time of the transfer both the Employer and 'the
employee expected that it would be permanent . In the fall of 1953 , however, he
began moves looking toward transfer back to the over -the-road unit, and consulted
union officials concerning his probable standing in seniority if he did transfer. Ferris
told him , in effect , that such standing depended upon whether or not his transfer
to the city unit had been permanent or temporary . Ferris also reminded nim that
according to the agreements in effect seniority status was according to job classification.
In December 1953 , Hazel was transferred at his own request . Apparently without
first consulting the Union , Franklin put him at the top of the over-the-road drivers'
seniority list, and for at least two trips the employee was dispatched from this
position . Then the Union , through a representative , raised the issue that Hazel
had improperly been placed at the top of the list. The Union was permitted, by
Franklin , to conduct a vote among the employees involved and thereafter , on Febru-
ary 2 , 1954 . Ferris advised the terminal manager in writing that:
Ivan Hazel 's seniority status with your company as an over -the-road
driveaway driver will be the date on which he was transferred from yard work
back to the driveaway division the last time.
Pursuant to the Union 's determination of this seniority controversy , Franklin put
Hazel at the bottom of the list . It appears that he was thereafter dispatched from
the lower position until during the hearing , when the Respondent Company offered
to reinstate him to the top position , and General Counsel accepted the offer as being
made in good faith . Counsel for the Union , however , stated when this offer was
made that by his silence he did not wish it to appear that he was waiving , for his
client , any rights it had under the contract.
As found above, Franklin 's own testimony makes it plain that he yielded to the
Union's demand , in February , pursuant to the mutual understanding existing between
the Respondents that the Union should settle seniority disputes.
It has been found that this specific mutual understanding was violative of the
Act. But it does not follow that all performances under a contract which contains
one illegal provision are necessarily also illegal . Nor does General Counsel claim
that the "job classification" seniority provision was or is violative of the Act. In-
stead, he argues at considerable length that the parties to the contract were, in
effect, in error. in their understanding of their own agreement, and that in fact job
classification seniority was not spelled out in the current national contract. Even
if his argument had merit , the bringing of a complaint claiming discrimination in
application or interpretation of a contract appears to the Trial Examiner to approach
intrusion into the affairs of contracting parties by policing such agreements. Such
was not the purpose, as the Trial Examiner understands, of the Act as amended.
From the evidence here, however, the Trial Examiner can find no merit in Gen-
eral Counsel's contention that job classification seniority was not the accepted
and agreed-upon form of seniority at the St. Louis terminal. General Counsel
proved conclusively, and both Respondents conceded, that there was and is a binding
contract in existence specifying job classification seniority in the city-driver unit.
There were but two units at the terminal. Since the same union represented both
units, it would hardly be reasonable to believe that it would enter into any agreement,
written or by mutual understanding, for the employees of the other unit which would
provide for a conflicting or overlapping form of seniority.
The testimony of representatives of both Respondents makes it plain, further-
more, that both considered that their agreements provided for job classification
seniority , and that this form of seniority was applied . Even the complainant in the
case, Hazel, testified that he was informed by his union representative before his
transfer back to the over-the-road unit, that the contracts provided for job classi-
fication seniority , and that this form was applied when he had previously trans-
ferred into the yard. It appears that only General Counsel, not a party to or cov-
ered by the contract, now claims that all the parties concerned should have otherwise
interpreted their own agreements.
Upon the credible evidence in the record , the Trial Examiner concludes and finds
that Hazel was not discriminated against in violation of the Act. It will be recom-
mended that the complaint be dismissed as to him.
INTERNATIONAL UNION OF OPERATING ENGINEERS
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
655
Certain of the activities of the Respondents set forth in section III, above, oc-
curring in connection with the operations of the Respondent 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 of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor prac-
tices, the Trial Examiner will recommend that they cease and desist therefrom and
take certain affirmative action necessary to effectuate the policies of the Act.
It has been found that the Respondents have entered into and maintained agree-
ments containing seniority provisions violative of Section 8 (a) (1) and (3) and
8 (b) (1) (A) and (2) of the Act. Accordingly it will be recommended that the
Respondents cease giving effect to the unlawful seniority provisions of their agree-
ments and refrain in the future from executing agreements containing such unlawful
seniority provisions . It will not be recommended that the Respondents cease
giving effect to both current agreements , nor that the Respondent Company withdraw
and withhold recognition from the Respondent Union.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent Union is a labor organization within the meaning of Section 2
(5) of the Act.
2. By entering into and maintaining agreements containing clauses delegating
to the Respondent Union authority to settle controversies relating to seniority the
Respondent Company has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a) (1) and (3) of the Act, and the Respondent
Union has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (b) (1) (A) and (2) of the Act.
3. The unfair labor practices found herein are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondents have not engaged in unfair labor practices within the mean-
ing of the Act with respect to Ivan Hazel.
[Recommendations omitted from publication.]
International Union of Operating Engineers , Local No . 12, AFL
and Robert A. Holderby
International Union of Operating Engineers , Local No. 12, AFL
and Frederick R. Hummel
International Union of Operating Engineers , Local No. 12, AFL
and Hoyt Covert . Cases Nos. 21-CB-564,21-CB-536, and 21-CB-
586. August 15,1955
DECISION AND ORDER
STATEMENT OF THE CASK'.
Upon charges filed by Frederick R. Hummel, Robert A. Holderby,
and Hoyt Covert, on November 16, 1953, February 15, 1954, and
April 8, 1954, respectively, the General Counsel of the National Labor
Relations Board, herein called the General Counsel, by the Regional
113 NLRB No. 67.