Local Union No. 107

National Labor Relations Board - Board Decisions

Oct 23, 1956

116 N.L.R.B. 1398 (N.L.R.B. 1956)

1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cannot be directed at this time for the truckdrivers under Section
9 (c) (3) of the-Act, the Petitioner seeks a unit limited to the bus-'
drivers who had never had an opportunity, to select a bargaining
representative.
We find merit in the Employer 's contention . The busdrivers can-
not ,be considered either,-a residual or fringe group entitled to an
election and separate representation . They are not a residual group
of the type which the Board has- on occasion found to be an ap-
propriate unit, because they do not comprise all the Employer's
unrepresented drivers .' Nor are they a fringe -group of employees, as
the truckdrivers in the same department for whom there is no bar-
gaining history do not constitute an historical unit to which the bus-
drivers may be considered a fringe, '- As it is clear from the facts
stated above, that the truckdrivers and busdrivers together constitute
an appropriate unit, , the Petitioner, in seeking to represent the bus-
drivers only, is attempting to represent a segment of a unit, which
under established Board policy, is not appropriate.-
Accordingly, as the unit sought is inappropriate , we shall dismiss
the petition.
[The Board dismissed the petition.]
6 The Daily Press, Incorporated , 110 NLRB 573, 578.
6 See The Zia Company, 108 NLRB 1134.
Local Union No. 107, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, AFL-CIO
[Interstate ,Motor Freight System] and George Ney. Case No.
4 ;UB-323. October 203, 1956
DECISION AND ORDER
On May 9, 1956 , Trial Examiner Louis Plost issued his Intermediate
Report in the above-entitled proceeding , finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed , as set forth in the
copy of the Intermediate Report - attached hereto. Thereafter, the,
General Counsel filed exceptions to the Intermediate Report and a
supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no pre judicial error was committed. The
rulings are hereby , affirmed. The Board has considered the Interme-
diate Report , the exceptions and brief , and the entire record in the
c ase, and, finding no merit in the General Counsel's exceptions, hereby
116 NLRB No. 193.
LOCAL UNION NO. 107 1399
adopts the findings, conclusions , and recommendations of the Trial
Examiner, with the modifications noted below.'
[The Board dismissed the complaint.]
1 Unlike the Trial Examiner, we do not find that the Respondent's dispatcher, Luzcko,
in requesting Ney's discharge, "explicitly called attention to the union-security provision
in the contract" or that Luzcko "explicitly" stated that Ney'@ employment "had run be-
yond the time provided in the contract," as such findings are not factually supported by
the record. Nevertheless, we believe that such statements were implicit in what Luzeko
said at the time he requested Ney's discharge, as more fully set forth in the Intermediate
Report. On the basis of the entire record, we conclude that the General Counsel failed
to establish that the Respondent did not act in reliance upon its union-security contract
in requesting Ney's discharge
In reaching the above conclusions we have not considered the Trial Examiner's char-
acterization in the second paragraph of that portion of section C of the Intermediate
Report ,captioned , " Conclusion."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
It having been charged January 6, 1956, by George Ney, an individual, that Local
Union No. 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, AFL-CIO, herein called the Respondent Union, has engaged
in and is now engaging in certain unfair labor practices affecting commerce as set
forth and defined in the National Labor Relations Act, as amended (61 Stat. 136,
29 U. S. C., Supp. III), hereinafter referred to as the Act, the General Counsel of
the National Labor Relations Board, on behalf of the Board, by the Regional Di-
rector for the Fourth Region, issued a complaint dated March 14, 1956, alleging that
the Respondent Union had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of 8 (b) (1) (A) and (b) (2) and Section 2 (6) and (7)
of the Act.' Copies of the complaint and a notice of hearing were duly served.
The complaint, with respect to the unfair labor practices, alleged:
In December 1955 the Respondent caused or attempted to cause, and continues
to cause or attempt to cause, Interstate [the Employer herein] to terminate the
employment of and otherwise discriminate against George Ney, an employee
of Interstate, in violation of Section 8, subsection (a) (3), of the Act for the
reason that the said George Ney was not a member of the Respondent Labor
organization.
Respondent's acts stated above were engaged in without reliance on, nor with
reference to, any union security contract in conformity with Section 8, sub-
section (a) (3), of the Act.
The answer, duly filed by the Respondent Union, denied that it had engaged in
any of the alleged unfair labor practices.
Pursuant to notice a hearing was held before Louis Plost, the duly designated
Trial Examiner, at Philadelphia, Pennsylvania, April 3 through 6, 1956. The Gen-
eral Counsel and the Respondent Union were represented by counsel, herein referred
to in the names of their principals. The parties participated in the hearing and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing upon the issues, to argue orally, and to file briefs and/or
proposed findings of fact and conclusions of law. The Trial Examiner denied mo-
tions by the Respondent Union (at the close of the General Counsel's evidence and
at the close of the hearing) to dismiss the complaint.
1 Section 8 (b) (1) (A) and (2) reads
(b) It shall be an unfair labor practice for a labor organization or its agents-
(1) to restrain or coerce (A) emolovees in the exercise of the rights guaranteed in
Section 7 : . . . (2) to cause or attempt to cause an employer to discriminate against
an employee in violation of subsection (a) (3) or to discriminate against an employee
with respect to whom membership in such organization has been denied or terminated
on some ground other than his failure to tender the periodic dues and the initiation
fees uniformly required as a condition of acquiring or retaining membership ; . .
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties argued orally. A date for the filing of briefs was set.2 A brief has
been received from the Respondent Union.
Upon the entire record in this case , and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER PARTY TO A CONTRACT WITH THE
RESPONDENT UNION
Interstate Motor Freight System , herein called Interstate , involved herein as the
employer of the Charging Party, is a common carrier of freight by motor truck,
having 52 terminals in 17 States of the Union, its annual total revenues being more
than $29 ,000,000 , and its annual revenue in the State of Pennsylvania being in ex-
cess of $1,000,000, $700,000 of this being from its Philadelphia, Pennsylvania,
terminal.
II. THE ORGANIZATION INVOLVED
Local Union No. 107, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America , AFL-CIO, herein called Respondent Union, is a
labor organization which admits employees of Interstate to membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The contract between the Respondent Union and Interstate
As tacitly admitted by the allegations of the complaint, in order to sustain the
charge that the Respondent Union engaged in conduct violative of the Act by causing
the discharge of the Charging Party herein, the General Counsel was required to
prove that the Respondent Union acted "without reliance on, nor with reference to,
any union security contract in conformity with Section 8, subsection 8 (a) (3) of the
Act." 3
In passing , the Trial Examiner must mention that in presenting his evidence the
General Counsel first adhered to the complaint and sought to show that no contract
existed; thereafter he sought to go outside the frame of the pleading in order to fish
for testimony which might disclose that if a contract did exist it was illegally admin-
istered and therefore void and further that if a contract existed it was of no effect
because the Respondent Union may have been out of compliance status during part
of its life, and that no union-security clause could validly have been entered into by
the Respondent Union unless there was full compliance status at the time the con-
tract was signed.
The Trial Examiner, however, will confine this report to the proper issues framed
by the pleading and will ignore any testimony which may have crept or been dragged
into the record from outside its proper frame although it may be here said (without
a gratuitous finding) that none of the immaterial evidence above referred to which
was excluded, struck, or inadvertently permitted to remain in the record, was in any
manner persuasive that the Respondent Union illegally administered the contract or
was ever in such compliance status as to be barred from the use of the Board's
processes or from contracting the Act's terms, were it at all proper to raise this
issue in the instant proceeding.
The parties are in agreement that Motor Transport Labor Relations, Inc., herein
called the Association, is an organization of some 350 to 400 members who are
engaged in the business of common carriers by truck; that the Association bargains
collectively with the Respondent Union for employees of its members; that the Asso-
ciation entered into a contract regarding wages, hours, and other conditions of em-
ployment covering certain employees of its members with the Respondent Union,
effective October 9, 1950, carrying the expiration date December 31, 1955, but sub-
ject to prior termination on due notice; that Interstate is a member of the Associa-
tion and bound by the contract above-mentioned, hereinafter called the Master
Agreement; that the Master Agreement contains a legally effective union-security
clause which requires membership of affected employees within 30 days after em-
ployment; that the Respondent Union gave proper notice of termination of the
Master Agreement effective December 31, 1954; and that the Respondent Union
and the Association began negotiations for a new agreement early in November 1954.
As above stated there is no dispute as to the above-related facts.
2At the request of the Respondent Union made after the close of the hearing, the time
for filing briefs was extended by the Chief Trial Examiner to May 4, 1956.
3 Paragraph 5 of the complaint.
LOCAL UNION NO. 107 1401
Michael von Moschzisker testified that following the Respondent Union's termi-
nation notice of the contract he acted as one of its representatives during the sub-
sequent negotiations with the Association for a new contract; that such negotiations
continued through November and part of December 1954; that the object of the
negotiations was, "To negotiate on certain demands that had been made by MTLR,
and certain other demands that had been made by Local 107 for charges in the
terms under which the parties worked"; that it was agreed at the outset that negotia-
tions should be had on all matters covered in the Master Agreement on which a
demand for change was made by either party but that those articles of the Master
Agreement on which no demand for change was made were to remain a part of
any new agreement; that on December 18, 1954, agreement having been reached
on all matters in dispute, a document was drawn setting forth the result of the
negotiations, which document was sent to all Association members; and that it was
clearly the will and understanding of the Association and the Respondent Union
that the new agreement now governing their relationship consisted of all the clauses
of the Master Agreement not changed together with the changes set forth in the
document being sent to the Association members. Von Moschzisker testified:
Q. Was there anything said with respect to the provisions of R-1, the master
agreement , which were not subject to demand and counterdemand, concerning
whether or not they were to have continuing effect?
A. Yes; that everything was to continue except the things that were changed
as the result of negotiations on the demands made by both or either side.
He also testified that the parties agreed that the operative clauses of the Master
Agreement and the changes and additions should be drawn into a smoothly phrased
document by the attorneys for the parties; and that the attorneys met thereafter,
the last meeting being July 25, 1955, but the final document has not yet been framed.
Von Moschzisker further testified that the union-security clause as set forth in
the Master Agreement was not the subject of a demand for change by either party,
that it "was neither negotiated, nor attempted to be negotiated." Von Moschzisker
testified:
Q. Do you know whether it was the intention of the parties to be bound by
the Union security provision in R-1, beginning as of the approximate date of
December 18, 1954, or December 31-January 1, 19559
A. Yes. I know that it was their intention to continue to be bound by it
after that date as they had been before that date.
Q. Do you know for how long they intended to be bound thereby?
A. Until two years from December 31, 1954.
James Leyden testified he was one of the attorneys representing the Association
in all the November-December 1954 negotiation meetings between it and the Re-
spondent Union and is presently one of the attorneys engaged in framing the final
agreement into phraseology which was referred to by the president of the Respondent
Union as "lawyer talk."
Leyden fully, corroborated Von Moschzisker and testified "that anything, in R-1
the Master Agreement] which was not a demand to change in it by the Union or by
the Employer, that everything in here was to continue as is." He further testified
that the union-security clause in the Master Agreement was not the subject of any
demanded change; and was to remain "exactly as is."
The testimony of Von Moschzisker and Leyden was not -contradicted and is fully
credited by the Trial Examiner.
Joseph J. Celli, terminal manager at Philadelphia for Interstate, testified that In-
terstate operates under a contract with the. Respondent Union, which contract is
through the Association and which as to final form is "still in the process of being
formally drawn' up."
Conclusion
Upon the entire record, and his observation of the witnesses, the Trial Examiner
finds that the Respondent Union and Interstate are bound under a valid, currently
effective, contract, effective at all times material hereto, which consists of those por-
tions of the Master Agreement dated October 9, 1950, unchanged by negotiation
after notice given and those portions thereof changed by negotiation together with ad-
ditions as submitted in writing to the members of the Association on or about De-
cember 18, 1954.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner further finds that the contract as above described contains
therein a valid and legal union-security clause, which requires membership of cer-
tain employees of Interstate under certain conditions.4
The Trial Examiner will therefore recommend that the complaint be dismissed
insofar as it alleges that the Respondent Union acted "without reliance on, nor
with reference to, any union-security contract in conformity with Section 8, sub-
section (a) (3), of the Act."
B. The Charging Party and union membership
George Ney was employed by Interstate October 25, 1955, and was terminated
December 16, 1955. Ney testified he had been working as a truckdriver for 10
years and that during this time he had never been a member of the Respondent
Union.
The record discloses that the Respondent Union maintains a hiring hall from which
it sends men who register there for employment to various employers who ask for
help. There is nothing in the record which shows the hiring hall to be illegally
operated, quite the contrary, it appears that men registering at the hiring hall for
employment are furnished available work in "strict rotation" with their applications
regardless of union affiliation.
During the past 10 years Ney registered regularly for work at the Respondent
Union's hiring hall. Ney testified:
Q. Now, you have obtained in those ten years on many occasions, on var-
ious occasions, work at different companies through the Union hall, have you
not?
A. I have.
Q. How often? Do you know?
A. That would be a staggering figure to mention, if you wanted to count
the days. It would be one day here and one day there.
Ney further testified that during his 10 years as a truckdriver his longest period of
employment was a job lasting "about a year," another job lasted 7 months, a third
2 months, that all the other jobs he held "did not last any length of time," and that
after each job he registered at and obtained jobs through the Respondent Union's
hiring hall.
Ney testified that in 1949 while employed by a company not named by him as one
where he worked "two months" or more he asked the union steward at the establish-
ment, "How about getting a union book?" and was told by the steward, "They
can't do you no good for a union book." According to Ney, again in September
1955, having received employment at the Spector Motor Company, through the
Respondent Union's hiring hall:
I worked over there for about a week, and the steward' s name over there I don't
know his last name. His first name was Joe.
The WiTNEss: I went and seen Joe myself, on my own. I said , "Is there any
chance of getting a book?" Joe in turn says to me, "Well, we'll see what
we can do." That was the end of that conversation there... .
Spector Motor Company does not appear as one of the signatories to the Master
Agreement.
Ney testified that after beginning work at Interstate he was asked by the Re-
spondent Union's steward if he was a union member . Ney fixed the time of the
incident as "about a week" prior to November 17, 1955. He testified:
Q. (By Mr. Mintz.) Tell us the conversation in the men's bathroom.
A. Why, Mr. Connelly said to me, "Do you have a book, Ney?" And I in
turn answered him, "No."
He in turn then said to me, "I didn't think so." And that was the extent to
what was mentioned about a Union book.
Q. How long did the conversation take?
A. Say two minutes, at the most.
4 The union-security provision reads :
All employees shall, within thirty (30) days after the execution of this agreement
or within thirty (30) days of the date of their employment, whichever is later, become
and remain members of the UNION in good standing as a condition of their
employment... .
LOCAL UNION NO. 107 1403
According to Ney, he then turned .to his brother who was present and who is a
member of the Respondent Union but not an official or officer, and:
I told my brother that I was willing to join the Union, but I didn't have the
money at that time, and he said, "Just take it easy and we'll see what we can do."
TRIAL EXAMINER: Who said that?
The WITNESS: My brother.
Other than this conversation with his brother, which the General Counsel urged be
interpreted as an application for membership in the Respondent Union, Ney admitted
he made no attempt to gain membership while employed at Interstate nor did he
speak to the Respondent Union's steward at Interstate regarding membership. He
testified:
Q. Did you ever talk to him [the steward] about becoming a member of the
Union?
A. No, I did not. I felt that it was up to him to talk to me.
The record is equally clear that Ney never tendered initiation fees or dues to the
Respondent Union.
Upon all the evidence considered as a whole, as well as his observation of Ney
while testifying, the Trial Examiner finds that George Ney at no time sought mem-
bership in the Respondent Union and further finds that at no time did the Respondent
Union refuse membership to George Ney.
The Trial Examiner will recommend that the complaint be dismissed with respect
to the allegation:
... that membership was denied George Ney for reasons other than his failure
to tender the periodic dues and the initiation fees uniformly required as a condi-
tion of acquiring or retaining membership.
C. The alleged discrimination against George Ney
Joseph Celli, terminal manager at Philadelphia for Interstate, testified credibly
that George Ney was first employed by Interstate October 24, 1955, and discharged
on December 16, 1955; that during this employment Ney, who worked as a truck-
driver, "was off" only 3 days; that when Ney first started he was, according to com-
pany policy, paid at the end of each day but beginning with the week ending November
21 he was paid weekly by check from the Company's Grand Rapids office. Celli
testified:
Q. Was he paid weekly or daily?
A. I believe-well, at first, it would naturally be daily, and when we started
using a man with any amount of regularity, rather than writing five checks
to cover a week, we write one. The men prefer that, and we do, for obvious
reasons.
George Ney testified that he obtained employment as a truckdriver at Interstate
through referral from the Respondent Union's hiring hall; that thereafter he con-
tinued to work for Interstate ; that each morning "for about a week , a week and a
half" after being employed he called Interstate's dispatcher who told him to come in to
work but after this time "I just came in"; that at first he was paid at the close of each
day but later received his pay weekly; that "about two weeks after I started there"
Manager Celli spoke to him:
And he asked me did I want to work for Interstate steady?
Q. Yes.
A. And I in turn said , "Yes, Joe."
Q. Yes?
A. And he in turn says, "Okay." And he turned to my older brother and told
him, in a joking way, "You see that he keeps his nose clean and flies straight."
The Trial Examiner is convinced that Ney's employment with Interstate must be
-counted from the day he was first employed there, the controlling factor being his
regular employment and not the fact that for a time he was paid according
to the injunction of Holy Writ.5
The Trial Examiner therefore finds that from October 24 through December 16,
1955, George Ney was regularly employed as a truckdriver by Interstate and subject
to the terms and conditions of the collective -bargaining contract 'between the Re-
s Leviticus 19, 13 ; Deuteronomy 24: 15.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent Union and Interstate which covered the employment of truckdrivers by
Interstate.
Ney testified that on December 16, he was ordered to pick up a helper at the
Respondent Union's hiring hall; that he went to the hall, was called to the service
window by the Respondent Union's dispatcher of referrals who then inquired into
Ney's union membership , told him he would be "pulled off," and then telephoned
Interstate. Ney testified:
I went in , and he said, "Do you Have a Union book?"
I said, "No, Pete. You know that, as well as I do."
Pete said, "Well, I'm going to have to pull you off that truck. We've got
Union men here that aren't working."
Then he reached and got the telephone and called Interstate Motor Freight.
Who he talked to, I don't know, but from his end of the phone-which I heard-
he told whoever he was talking to on the phone that he was putting a driver
on that truck, and a helper, and that I was being taken off the truck.
Ney further testified that he then drove back to Interstate, accompanied by the
assigned referral; that at Interstate he held the following conversation with Dis-
patcher John McGinley:
We went in to the drivers' room again, and I said, "Well, John, you know what
the scoop is now, don't you?"
Q. John being McGinley?
A. Yes. He says, "Yes," he says, "they called up the-they called up here."
I says, "Yeah, they called while I was standing there," I said. I said, "He
knocked me off of this, you know."
He said , "Well, I can 't do nothing about it. You go out on the deck and
give them a hand," which I did.
Ney worked as a helper the rest of the day, and was discharged at its close by
Terminal Manager Celli, as will appear at a later point herein.
Peter Luscko testified that he is one of the dispatchers at the hiring hall main-
tained by the Respondent Union, his work being to register and send out applicants
for employment. Luscko testified that on December 16, Ney came to the hall
and asked for a helper; that Luscko asked Ney, "Do you have your union book
yet?" to which Ney replied "No"; and that Luscko then telephoned Interstate, spoke
to McGinley, and that:
Well, I told Johnny that this gent didn't have this Union book, that's all.
According to Luscko after telling McGinley that Ney had no "book" the conversa-
tion continued as follows:
TRIAL EXAMINER: And what did McGinley answer?
The WITNESS: He said, "I didn't know that."
The TRIAL EXAMINER: And what did you say then?
The WITNESS. I said , "What do you want me to do?"
TRIAL EXAMINER: You said, "What do you want me to do?"
The WITNESS: Yes, Sir.
TRIAL EXAMINER: And what did he say?
The WITNESS: He said, "I don't know." I said to him, "Well, it's up to you."
He said, "Well, then, you put a man on there." So, I put a driver on there,
and that was that.
Luscko testified he did not tell McGinley to discharge Ney, testified that the object
of his telephone call was "merely to find out why this gent didn't have no book"
and although Ney had told him he had no book, yet, according to Luscko, he "wanted
to know whether the other party knew it," and further testified that at the time he
called Interstate he had no knowledge how long Ney had been employed there.
John McGinley, dispatcher for Interstate, testified he has charge of Interstate's
drivers whom he "indirectly" hires and fires. As to Ney's union membership, Mc-
Ginley testified, "I was always under the supposition or the knowledge that he had
a book." McGinley further testified that on December 16, he instructed Ney to
stop at the hiring hall for a helper and that "the next thing I know, I got a call from
the Union hall" and:
He said, "John, you'll have to get the man-this man-this man can't drive
this truck," he said. He said, "I'll have to put a man on there."
He said due to the fact that there were men, Union men, were sitting over
there, didn't have any-you know, didn't have any work.
LOCAL UNION NO. 10 1405
So, I complied with it . I said , "Well, put a driver on," and I believe that
Ney did drive the truck back to the terminal, on Tioga Street there.
Terminal Manager Celli testified he "officially" terminated Ney's employment at
the end of the day Luscko telephoned McGinley. Celli testified:
Q (By Mr. Mintz.) Let's hear the whole conversation that you had with
Ney.
Have you told us all of it?
A. It was an off-the-cuff deal. I believe , if my recollection serves me right,
he was outside in the drivers' room, just outside the dispatch office, through the
window, and he was, I believe, in the process of punching out and going home.
And somehow or another, either he asked me or I asked him what the story
was on what had transpired that day, and he said he "didn't have a Union book."
And I said, "Well, you know what the story is there. It is a Union shop. If
you don't have a book, you can't work. Get yourself a book and come back
and see us."
Q. Is that the first day or date on which you learned that Ney did not have a
book?
A. That's right.
The Trial Examiner credits Celli, and therefore finds that Ney was not an employee
of Interstate after December 16, 1955.
Conclusion
The Trial Examiner has found that Ney made no effort to join the Respondent
Union, or tender initiation fees or dues after he was employed by Interstate. Ney
admitted he understood the method of obtaining union membership . It is clear
that he knew Interstate was under a union contract which affected his employment,
knew that continued employment was conditioned on union membership , which was
as elemental a requirement as reporting for work on time, yet he did not speak to the
Union's steward regarding membership because he "felt it was up to him to talk to
me."
The time has come in labor relations when unions are represented by soft -spoken
Ivy League graduates, when scholarship fraternity keys and unions emblems dangle
from the same watch chain , when a union 's statements are not issued until first care-
fully scanned for semantic value, but the Respondent Union 's dispatcher, Peter
Luscko, did not operate on this level, yet Luscko's spoken words and their unspoken
meaning were plain to Interstate.
Recalling Luscko's testimony to the effect that he had no knowledge of how long
Ney had been employed by Interstate and knew that Ney was not a member of the
Respondent Union. He knew of course that Interstate would know if Ney had been
in its employ more than the 30 days he was free of the contractual obligation to seek
membership as a requirement for continued employment , therefore , it is apparent
that at the time Luscko telephoned Ney's employer in order to find out "whether the
other party" also knew that Ney was not a member of the Respondent Union and
began the conversation by saying to McGinley "this gent didn't have this union
book" and further that the Union's members were out of work, Luscko quite ex-
plicitly called attention to the union-security provision in the contract between the
Respondent Union and Ney's employer and said, quite understandably, that if Ney's
employment had run beyond the time provided in the contract the Respondent
Union demanded his discharge, its obligation being to its members out of work and
not to Ney. It is also clear that McGinley understood Luscko. At the time
McGinley said to the Respondent Union's dispatcher, "well put a driver on," he was
saying, in language plain to both, that Ney had been employed more than 30 days by
Interstate and not having sought membership in or tendered initiation fees and dues
to the Respondent Union therefore Interstate' honored the Respondent Union's
request as required by the contract and the Act.
So viewed there is no conflict in the testimony of Luscko and McGinley regarding
their telephone conversation on December 16.
On the entire record, all the evidence viewed as a whole, and his observation of
the witnesses, the Trial Examiner finds that the Respondent Union asked for the
discharge of George Ney on December 16, 1.955, because he had not sought member-
ship in, or tendered initiation fees or dues to. the Respondent Union after he had been
employed by Interstate for more than 30 days as required by the contract existing
between Interstate and the Respondent Union, to which contract Ney's employment
was subject. The Trial Examiner further finds that. the Respondent Union had a
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valid right to demand Ney's discharge under its contract with Interstate and under
the provisions of the Act and will recommend that the complaint be dismissed insofar
as it otherwise alleges.
Final Conclusions
The Trial Examiner is convinced on the entire record and finds that the General
Counsel has not sustained his burden of proof and will therefore recommend that
the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The operations of Interstate Motor Freight System occur in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. The Respondent Union, Local Union No. 107 , International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, is a labor
organization within the meaning of Sections 2 (5) and 8 (b) of the Act, and is en-
gaged in doing business and in promoting and protecting the interests of its employee
members.
3. The Respondent Union has not engaged in unfair labor practices as alleged in
the complaint within the meaning of Section 8 (b) (1) (A) and (b ) ( 2) and
Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Miron Building Products Co., Inc., Miron Rapid Mix Concrete
Corp . and Local 445, International Brotherhood of Teamsters,
-AFL-CIO, Petitioner . Case No. 2-RC-77926. October 24, 1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Nathan Cohen, hearing
officer . The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board fords :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer 2
'The Employer moved to dismiss on the grounds that ( 1) the Petitioner's alleged
showing of interest was coercively procured , and (2 ) as the Petitioner and Intervenor
were both former AFL locals, the instant proceeding is in effect a dispute over juris-
diction and should be referred to the AFL National Joint Board for the Settlement of
Jurisdictional Disputes . We find no merit in these motions . In the first instance, it is
well settled that showing of interest is a matter for administrative determination and
is not subject to collateral attack by the parties . Moreover , we are administratively satis-
fied that the Petitioner 's showing of interest is adequate . See The Colorado Milling
and Elevator Company, 108 NLRB 1014 , 1015, at footnote 2. It is also well settled
that Board certification in a representation proceeding is not a jurisdictional award ;
it is merely a determination that a majority of the employees in an appropriate unit
have selected a particular labor organization as their collective -bargaining representa-
tive. See Denver Heating, Piping and Air Conditioning Contractors , 99 NLRB 251 , 254, at
footnote 13. In addition , we find that the conflicting representation claims of the labor
organizations herein do not constitute a jurisdictional dispute and are properly before
this Board
9 Lumberyard Employees Local Union 1150, Hudson Valley District Council of Carpen-
ters, AFL-CIO, was permitted to intervene on the basis of its contractual interest.
116 NLRB No. 194.