Marcus Trucking Co., Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1960

126 N.L.R.B. 1080 (N.L.R.B. 1960)

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties stipulated that the office receptionist should be excluded
from the unit as a confidential employee. Accordingly, we shall ex-
clude her from the unit.
It was also stipulated that the following persons are supervisors as
defined in the Act : David E. Truax, Anthony Floresta, Armond P.
Coppola, Joseph C. Montagnino, Claude High, Norman Nuttal, Jack
Wathey, John Rankin, and Jim Owens. Consequently, they are ex-
cluded from the unit.
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act :
All production and maintenance employees, of Stein, Hall and
Company, Inc., at its Charlotte, North Carolina, plant, including
platform and warehouse employees, leadmen, and laboratory control
analysts, but excluding office clerical, confidential, and professional
employees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Marcus Trucking Company, Inc. and Dairy Transportation
Drivers, Helpers & Terminal Employees, Local 770, Inter-
national Brotherhood of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America and Local 602, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , Party to the Contract . Case No. 2-CA-
6031. March 11, 1960
DECISION AND ORDER
On August 13, 1959, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that
Marcus Trucking Company, Inc., herein referred to as Respondent,
had engaged in and was engaging in certain unfair labor practices
within the meaning of Section 8(a) (1), (2), (3), and (5) of the
National Labor Relations Act, as amended, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. The
Trial Examiner also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and he
recommended that these allegations be dismissed. Thereafter, the
Respondent and Local 602 filed exceptions to the Intermediate Report
and Respondent filed a brief in support of its exceptions.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
126 NLRB No. 131.
MARCUS TRUCKING COMPANY, INC. 1081
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and the brief filed by the Re-
spondent, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
with the additions and modifications noted below :
1. We agree with the Trial Examiner, and for the reasons stated
by him, that the conduct of Respondent, through May 30, 1958, con-
stituted a ratification of the collective-bargaining agreement between
the Dairy Transport Association, Inc., herein referred to as the Asso-
ciation, and Local 770, effective from August 1, 1957, until July 31,
1960, covering, among other employees, Respondent's tankdrivers,l
and that such agreement was therefore binding on it. Accordingly,
we find that Respondent, by entering into a collective-bargaining
agreement with Local 602 on May 30, 1958, acted in derogation of its
obligation to recognize Local 770 as representative of its tankdrivers
and afforded unlawful aid and assistance to Local 602, in violation of
Section 8(a) (1), (2), and (5) of the Act.'
2. We also agree with the Trial Examiner that paragraph num-
bered 7(e) of the agreement between Respondent and Local 602 vio-
lated Section 8 (a) (1), (2), and (3) of the Act in that it required
Respondent to give preference in hiring to members of Local 602.
We also agree that paragraph numbered 7(g) of this agreement, the
union-security clause, constituted a further violation of Section
8(a) (1), (2), and (3) of the Act for the reasons stated by the Trial
Examiner, and for the additional reason that it failed to afford a
30-day grace period to old employees who were not members of
Local 602.3
3. We also find, in agreement with the Trial Examiner, that Re-
spondent violated Section 8 (a) (1), (2), and (3) of the Act (1) by
reducing the seniority of employee Bedford because he was not a
member of Local 602, and (2) by entering into and maintaining in
effect an understanding with Local 602 delegating to it unlimited
and unilateral control over the seniority ranking of Respondent's
tankdrivers.4
1 See Detroit Window Cleaners Union, Local 139, etc ( Daelyte Service Company), 126
NLRB 63 In view of this finding, we deem it unnecessary to pass on the question
whether Respondent had effectively revoked the power of attorney authorizing the Associa-
tion to negotiate on its behalf a collective -bargaining agreement with Local 770. We
also find it unnecessary to rule on the applicability here of Retail Associates , Inc., 120
NLRB 388, which was cited by the Trial Examiner.
20f. Heaton Furniture Company, 111 NLRB 342, 344; Shamrock Dairy, Inc., et at.,
119 NLRB 998 , and 124 NLRB 494 Member Bean does not consider anything decided in
the instant ease to be inconsistent with his dissent in the Shamrock case. In the present
case, unlike Shamrock, the Charging Union was the certified representative of the
Respondent 's employees.
3 Joe K. Miller d/b/a K.M. and M. Construction Co., 120 NLRB 1062, 1063.
4 Paciio Intermountain Express Company, 107 NLRB 837 , enfd. as modified 225 F. 2d
343 (C.A. 8).
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in and is engaging in
certain unfair labor practices, we shall order that it cease and desist
therefrom and take certain affirmative action which we deem neces-
sary to effectuate the policies of the Act.
We shall adopt the Trial Examiner's recommendation that Respond-
ent cease and desist from rendering any unlawful aid or assistance to
Local 602 or from performing or giving effect to any of the terms and
conditions of its contract with Local 602, executed on May 30, 1958.
We shall affirmatively order Respondent to recognize Local 770 as
collective-bargaining representative of its tankdrivers and we shall,
in addition, order Respondent to abide by the terms and conditions of
the Association contract with Local 770, including the clause providing
for the payment of time and one-half for overtime in excess of 10
hours per day.,'
We shall also adopt the Trial Examiner's recommendation that the
Respondent be ordered to make its tankdrivers whole for any loss of
earnings which they may have suffered by reason of Respondent's
unfair labor practices. The record indicates, and the Trial Examiner
found, that in August 1957, Respondent instituted the payment to
its tankdrivers of time and one-half for overtime in excess of 10 hours
per day and that the payment of such premium pay for overtime was
discontinued by Respondent on May 30, 1958, pursuant to its contract
with Local 602. Since we have found that Respondent violated the
Act by entering into this contract with Local 602, we deem it neces-
sary, in order to effectuate the policies of the Act and to restore the
status quo ante, to reimburse the drivers for the loss they suffered as
a result of Respondent having unlawfully modified their working
conditions.'
We shall not, however, adopt the Trial Examiner's recommendation
that Respondent make Local 770 whole for any loss which it may have
sustained by reason of Respondent's unlawful withdrawal of recog-
nition from it by paying it a sum equal to the dues and initiation fees
which Respondent, absent its unfair labor practices, would have nor-
mally checked off to Local 770 on behalf of its employees. The record
shows, and the Trial Examiner found, that prior to May 30, 1958,
35 of Respondent's 46 tankdrivers signed a petition to transfer their
union membership from Local 770 to Local 602 and that thereafter
they authorized Respondent to deduct from their wages membership
5 The Trial Examiner recommended that the Respondent be ordered to bargain with
Local 770 and, if an understanding is reached, embody such understanding in a signed
agreement. In view of our finding that Respondent is bound by the Association contract
with Local 770, which contract will remain in effect until July 31, 1960, we do not adopt
this recommendation
9 Cascade Employers Association, Inc., 126 NLRB 1014; Smith's Van & Transport
Company, Inc, et al., 126 NLRB 1059; see West Boylston Manufacturing Company of
Alabama, 87 NLRB 808, 813.
MARCUS TRUCKING COMPANY, INC. 1083
dues to Local 602, thereby, in effect revoking any outstanding dues-
checkoff authorizations in favor of Local 770. In view of these facts,
it is apparent that had Respondent continued to give effect to such
revoked authorizations in favor of Local 770, it would have violated
Section 302 of the Act. Accordingly, it was the revocation of the
checkoff authorizations in favor of Local 770, rather than the Respond-
ent's unlawful contract with 602, which required the Respondent to
cease checking off dues for Local 770. Under these circumstances, we
do not consider that it would effectuate the purposes of the Act to
order the restoration of membership dues to Local 770. We shall
instead, in view of the unlawful assistance rendered Local 602 by the
Respondent, require the Respondent to reimburse its tankdrivers for
any membership dues, fees, and assessments, which they paid to Local
602 after May 30,1958? Finally, we shall adopt the recommendations
of the Trial Examiner relating to the remedying of the discrimination
against employee Bedford and the delegation of control over seniority
to Local 602.
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, Marcus Trucking
Company, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Delegating to Local 602, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or to any
other labor organization, absolute, unilateral control over the seniority
ranking of its employees, or otherwise rendering illegal aid and as-
sistance to the above-named labor organization, or to any other labor
organization.
(b) Recognizing the above-named labor organization, or any suc-
cessor thereto, as the representative of its employees in the appro-
priate unit described below for the purposes of collective bargaining
with respect to wages, rates of pay, hours of employment, or other
terms and conditions of employment, unless and until such labor
organization shall have been certified by the Board as the representa-
tive of the said employees.
(c) Performing, maintaining, enforcing, or giving effect to the
contract of May 30, 1958, between the Respondent and the above-
named labor organization, or any extension, renewal, modification,
or supplement thereto, unless and until such labor organization shall
4 The Trial Examiner also recommended that Respondent be required to restore to
Local 770 the checkoff of membership dues from the wages of those drivers "who have
effectively authorized it." In view of the order herein that Respondent abide by the
terms of the Association contract with Local 770, which contract contains a checkoff
clause, we deem it unnecessary to make any further provision regarding the prospective
restoration of checkoff to Local 770.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been certified by the Board as the representative of said
employees.
(d) Entering into, performing, maintaining, or otherwise giving
effect to any union-security provision in any agreement with the above-
named labor organization, or any other labor organization, unless
such union-security provision is in conformity with the proviso to
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
(e) Encouraging membership in the above-named labor organiza-
tion, or in any other labor organization, by entering into, performing,
maintaining, enforcing, or giving effect to any contract, agreement,
understanding, or arrangement whereby preference in hiring, sen-
iority, or tenure of employment is accorded members of the said labor
organization, except as authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
(f) Reducing the seniority standing of employees, or otherwise
taking reprisals against them, because they fail or refuse to join, apply
for membership in, or pay dues to, the above-named labor organiza-
tion, or to any other labor organization, except as permitted by Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
(g) Establishing, instigating, or putting into effect any change in
the working conditions of its employees in the appropriate unit de-
scribed below, without prior notice to and consultation with the statu-
tory bargaining representative of such employees.
(h) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Dairy Transportation Drivers,
Helpers & Terminal Employees, Local 770, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of mutual aid or protection as guaranteed
in Section 7 of the Act, and to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Local 602, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the representative of any of its employees in
the appropriate unit described below for the purpose of collective
MARCUS TRUCKING COMPANY, INC. 1085
bargaining with respect to wages, rates of pay, hours of employment,
or other terms and conditions of employment, unless and until such
labor organization shall have been certified by the Board as the repre-
sentative of such employees.
(b) Recognize Dairy Transportation Drivers, Helpers & Terminal
Employees, Local 770, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the exclusive
representative of its employees in the appropriate unit described below
with respect to wages, hours of employment, and other conditions of
employment, and perform, maintain, and give effect to the terms and
conditions of the collective-bargaining agreement entered into by the
Dairy Transportation Association, Inc., on behalf of the Respondent,
with Local 770, effective from August 1, 1957, until July 31, 1960. The
appropriate unit is: All tankdrivers employed by the Respondent and
other members of Dairy Transport Association, Inc., who have not
effectively withdrawn from multiemployer bargaining, excluding
mechanics and garage employees, office clerical employees, professional
employees, watchmen, guards, and supervisors as defined in the Act.
(c) Restore to its employees in the above-described unit the system
of overtime pay existing prior to May 30, 1958, and make such em-
ployees whole for any loss of earnings they may have suffered by
reason of the elimination of such overtime pay.
(d) Reimburse to its employee in the above-described unit the dues,
fees, and assessments which these employees have paid to Local 602
as a condition of employment during the period commencing May 30,
1958.
(e) Restore Kenneth Bedford to that position on the seniority
roster to which he is rightfully entitled in accordance with the date of
his hire, or other relevant nondiscriminatory factors, without regard
to his union membership, sympathies, or activities, and make him
whole for any loss of pay suffered as result of the discrimination
against him.
(f) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze and compute the amount of back-
pay dues, fees, and assessments due under the terms of this Order.
(g) Post at its office at Monroe, New York, copies of the notice at-
tached hereto marked "Appendix." 8 Copies of the said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being duly signed by the Respondent's representative, be posted by
it immediately upon receipt thereof and maintained by it for 60 con-
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that these notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director for the Second Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations other than those found herein
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
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 notify you that :
WE WILL NOT delegate to Local 602, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, or to any other union, absolute unilateral control over the
seniority ranking of our employees in the unit described below,
or otherwise render illegal aid or assistance to any union.
WE WILL NOT recognize the above-named Union, or any of its
successors, as the representative of our employees in the appro-
priate unit described below for the purpose of collective bargain-
ing with respect to wages, hours, or other working conditions,
unless such union shall have been certified as the representative
of the said employees.
WE WILL NOT perform, maintain, enforce, or give effect to our
contract of May 30, 1958, with the above-named Union, or any
extension, renewal, modification, or supplement thereto, unless
such union shall have been certified by the National Labor Rela-
tions Board as the representative of our employees in the ap-
propriate unit, described below.
WE WILL NOT encourage membership in any union by entering
into, performing, maintaining, or giving effect to any contract,
agreement, understanding, or arrangement whereby preference in
hiring, seniority, or tenure of employment is accorded members
of the said Union, except as permitted by Section 8(a) (3) of the
National Labor Relations Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL NOT reduce the seniority standing of our employees, or
or otherwise take reprisals against them, because they fail or
refuse to join, apply for membership in, or pay dues to any union,
MARCUS TRUCKING COMPANY, INC. 1087
except as permitted by Section 8(a) (3) of the National Labor
Relations Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL NOT put into effect any change in the working condi-
tions of our employees in the unit described below, without prior
notice to and consultation with the statutory bargaining repre-
sentative of such employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees or applicants for employment in the exer-
cise of their rights under Section 7 of the National Labor Rela-
tions Act, except as permitted by Section 8 (a) (3) of that Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL withdraw and withhold all recognition from Local
602, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the representative of any
of our employees in the appropriate unit described below, for
the purposes of collective bargaining with respect to wages, hours,
or other working conditions, unless such union shall have been
certified by the National Labor Relations Board as the represent-
ative of the said employees.
WE WILL recognize Dairy Transportation Drivers, Helpers &
Terminal Employees, Local 770, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of our employees in the appro-
priate unit described below with respect to wages, hours, and
other conditions of employment, and we will perform, maintain,
and give effect to the terms and conditions of the collective-
bargaining agreement entered into by the Dairy Transport Asso-
ciation, Inc., on our behalf with the above-named labor organiza-
tion, effective from August 1, 1957, until July 31, 1960. The
appropriate unit is:
All tankdrivers employed by us and other members of
Dairy Transport Association, Inc., who have not effectively
withdrawn from multiemployer bargaining, excluding me-
chanics and garage employees, office clerical employees, pro-
fessional employees, watchmen, guards, and supervisors as
defined in the National Labor Relations Act, as amended.
WE WILL restore to our employees in the above-described unit
the system of overtime pay existing prior to May 30, 1958, and
make such employees whole for any loss sustained because of the
elimination of such overtime pay.
WE WILL reimburse to our employees in the above-described
unit the dues, fees, and assessments which they paid to Local 602,
1088 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , as a condition of employment dur-
ing the period commencing May 30,1958.
WE WILL restore Kenneth Bedford to that position on the sen-
iority list to which he is rightfully entitled in accordance with
the date of his hire , or other relevant nondiscriminatory factors,
without considering his union membership , sympathies, or ac-
tivities , and make him whole for any loss of pay suffered because
of the discrimination against him.
MARCUS TRUCKING COMPANY, INC.,
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding involves charges that Marcus Trucking Company, Inc., Monroe,
New York, herein called the Respondent, unilaterally altered wage rates in January
1958, and bargained directly with its individual employees in January 1958 and at
various times thereafter, although Dairy Transportation Drivers, Helpers & Terminal
Employees, Local 770, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, the Charging Party, herein called Local 770, the
certified representative of its employees in- an appropriate unit, had not been con-
sulted with regard thereto; that on May 29, 1958, during the effective term of a
contract between Dairy Transport Association, Inc., and Local 770, which contract
was binding on the Respondent, the Respondent entered into and has since maintained
and enforced a collective-bargaining contract with Local 602, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein
called Local 602, thereby withdrawing and withholding recognition from Local 770;
that in June 1958, the Respondent entered into, and has since enforced and main-
tained in effect, an understanding with Local 602 which delegates to Local 602 final
and exclusive control over the determination of seniority ranking of its employees,
the determination being based upon membership in Local 602; and that on June 22,
1958, the Respondent reduced the seniority ranking of employee Kenneth Bedford
because he continued to adhere to Local 770. It is alleged that this conduct violated
Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, as
amended (61 Stat. 136), herein called the Act. After the issuance of a complaint
by the General Counsel' and the filing of an answer by the Respondent, a hearing
was held before me on various dates between March 2 and 27, 1959, inclusive, at
Middletown, New York. All parties were represented and were given an opportunity
to participate fully in the hearing. The Respondent filed a brief which has been
duly considered.2
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
There is' no dispute, and it is found, that the Respondent is, and at all material
times has been, engaged in commerce within the meaning of the Act, and its
operations meet the Board's jurisdictional standards; 3 that Locals 770 and 602 are,
1 The designation General Counsel includes the General Counsel of the National Labor
Relations Board and his representative at the 'hearing.
a Page 637, line 12, of the transcript of hearing is hereby corrected by inserting the
words "THE WITNESS :" between the word "ahead" and the word "I."
s The Respondent is a New York corporation with its principal office and place of busi-
ness in Monroe, New York It is engaged in the business of transporting milk and
MARCUS TRUCKING COMPANY, INC. 1089
and at all material times have been , labor organizations within the meaning of the
Act; and that Dairy Transport Association, Inc., herein called the Association, is,
and at all material times has been , an association of employers engaged in New
York and other States in over-the-road hauling of milk and milk products, and is
incorporated under the laws of the State of New York.
A. Events up to January 5, 1958
In the last half of 1955 the Association, acting on behalf of its members, entered
into a collective-bargaining contract with Local 770 4 governing the working condi-
tions of the tankdrivers employed by the Association's members. This contract was
to remain effective until July 31, 1957. After it was executed by representatives of
the contracting parties, the Association's authority to contract on behalf of its mem-
bers was confirmed by the signature of an official of each individual association
member named in the contract.
As the result of a Board-directed election, Local 770 was certified by the Board
on June 7, 1956, as the bargaining representative of the Respondent's tankdrivers,
excluding mechanics and garage employees.5 On July 26, 1956, the Respondent and
the Association entered into a contract whereby the Association agreed to admit the
Respondent to membership, and the Respondent agreed to pay to the Association
certain sums of money 6 and to execute a power of attorney appointing the Asso-
ciation its agent in labor relations matters, which was to remain "unrevoked at least
until the May 31 following payment of all sums to be paid under this agreement."
Simultaneously, the Respondent executed, and the Association accepted, such a
power of attorney. The power of attorney contained, among other things, the
following provision:
This power of attorney shall be governed by New York law. It shall become
effective as of July 26, 1956, on its acceptance by the Association, and shall .
remain effective to 12:00 p.m. eastern daylight time May 31, 1957, and (unless
revoked by registered mail delivered to the Association not later than December
31 in any year) from year to year thereafter.
Even since the execution of those documents, the Respondent has maintained its
membership in the Association. During the first half of August 1956 the Association
and Local 770 entered into a contract whereby the 1955 collective- bargaining
agreement between Local 770 and the Association, referred to above, became
applicable to the Respondent and its tankdrivers. The Association's authority to so
contract was confirmed by the signature of Charles H. Marcus, the Respondent's
vice president. The Respondent thereafter checked off the union dues of its tank-
drivers and remitted these sums to Local 770.
On May 29, 1957, the Association held a meeting of its members, at which Marcus
represented the Respondent . At this meeting, a motion was passed to dissolve the
then-existing powers of attorney ,7 and a negotiating committee was elected. On
May 31, 1958, the Association's attorney forwarded to the Respondent for signature
a new power of attorney, which differed in some respects from the former one The
forwarding letter concluded: "The Association expects to meet with the involved
Teamster local unions very shortly and must have your company's authority to
represent it by that time." Accordingly, on June 5, 1957, the Respondent executed
the new power of attorney and returned it to the Association. However, the Asso-
ciation never signed the acceptance of this power of attorney, as an insufficient
number of members (only four) had executed them.
Representatives of the Association and Local 770 held a "preliminary meeting"
on June 6 , 1957 . Thereafter a number of full-scale bargaining sessions were con-
milk products in and through the States of New York and New Jersey. During the year
immediately preceding the issuance of the complaint , the Respondent had a gross revenue
in excess of $500,000, of which more than $250,000 was derived from its interstate
operations.
4 Local 602 was named in the contract as a party, but did not sign. See Turco Milk
Transportation Co., Inc., 115 NLRB 1733; and Kaufman & Msnteer of N.Y., Inc., 115
NLRB 1732.
6 Case No . 2-CA-7956. The Decision and Direction of Election , unpublished , was issued
May 1, 1956.
6 A schedule of payments was provided for, under which the final payment was due
February 1, 1958.
7 Marcus seconded the motion.
554461-60-vol. 126-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ducted between representatives of Local 770 and the Association's negotiating
committee in an attempt to negotiate a new collective-bargaining contract for the
drivers employed by the Association's members, to succeed the 1955 agreement,
which expired July 31, 1957. The 1955 contract had provided for hourly wages of
$1.87, $1.97, and $2.07,8 with overtime to be paid at straight time. But in the nego-
tiations for a new contract, Local 770's representatives demanded, among other
things, an increase in the hourly rates and the payment of time and a half for over-
time worked in excess of 8 hours per day.
Marcus was not a member of the Association's negotiating committee, but attended
some of the bargaining sessions as a spectator. On numerous occasions when formal
sessions were no actually in progress he complained to representatives of Local 770
and to members of the Association's negotiating committee that Local 770's demands
were "impossible," "outlandish," and "too steep," and that the Respondent "could
never go along on this deal," especially those demands concerning overtime pay. On
one occasion, on August 12, 1957, Marcus asked a representative of Local 770
whether Local 770 would object to the Respondent's establishing additional terminals
at points other than Monroe, New York. He was told that Local 770 had no
objection.
On August 19 negotiations broke off and on August 20 Local 770 called a strike
against association members and certain independent truckers. All the Respondent's
drivers participated in this strike, which lasted only a few hours. The record is not
entirely clear as to exactly what agreement was entered into between representatives
of Local 770 and representatives of the Association which caused the strike to end,
but the conclusion is warranted, and I find, that some oral understanding (perhaps a
tentative one) was reached as to some terms and conditions of employment, while
others remained undetermined, and that this understanding (which constituted at
least a partial granting of Local 770's demands) was relayed to members of the
Association, including the Respondent .9
For some time prior to the strike, the Respondent had paid its drivers hourly rates
of $1.87, $1.97, and $2.07, with overtime at straight time, as provided in the 1955
'The lowest rate was for straight trucks, 10 wheelers, and single axle trailers ; the
middle rate for tandem axle trailers, including vans and refrigerated trucks ; and the
highest rate for 450-can tanks and over, and farm pickups.
9 Thus Percy H. Redner, president of the Association and a witness for the General
Counsel, testified •
Q. (By Mr. Solomon.) I merely asked if you communicated by telephone, by
letter, by wire, as President of the Association, the terms
A I believe I talked to every member about the agreed terms of the contract.
s a • s s s a
Q You mentioned before that you had agreed to certain terms. Did you tell
him-
A. I didn't agree to any terms.
Q. I mean the Association had agreed.
A. The negotiating team did.
Q. Did you relay to him [Marcus] what terms the negotiating team had agreed
to at that time?
A. That is right.
Q. What did you tell him?
A. Merely that in order to get off the strike that they were the terms that were
laid down.
Q. Did you tell him precisely what the terms were?
A. I probably did at that time. I don't recall now.
Q. Specifically what did the terms relate to? Hours or what9
A. Increase in wages ; increase in benefits ; Increase in vacations.
Q. And you told Mr. Marcus about that at that time?
A. That is right.
Q. And what did Mr. Marcus say to you?
A. Well he didn't like it.
: s $ s s s s
Q. (By Mr. Klein.) It is a fact, Is it not, that Mr Marcus did not agree to the
terms which you indicated, Mr. Hickey [of Local 770] had laid down?
A. Well, can I answer that In another way 'I
Q. Well, do you understand the question first?
A. I did answer it before. The only way they got off of the strike was to agree
to those terms.
MARCUS TRUCKING COMPANY, INC. 1091
contract between Local 770 and the Association . Shortly after the strike, the
Respondent raised the hourly rates of its drivers to $2.37 and $2.47,10 with time and
a half for overtime in excess of 10 hours per day. Sometime in the fall of 1957
the Respondent paid to each of its tankdrivers a lump sum representing the difference
in hourly rates and overtime retroactive from August 1 , 1957 , to the date in August
when payment of the new rates began. About the third week in October Marcus
told some of the Respondent 's tankdrivers that "the time and a half was killing him"
and that the men "would have to do something about this time and a half" or the
Respondent would be forced to relocate some of its trucks. Mentioning specific
runs which exceeded 10 hours, he suggested that they be paid for on a trip or flat
rate basis ,ii instead of on an hourly rate , and stated that if such an arrangement
were established , the Respondent "would leave the trucks in Monroe ." And about
a month later , Marcus remarked to one of the Respondent 's tankdrivers that the
Respondent "would have to" break some of the longer runs "upstate."
There were further bargaining sessions in November between representatives of
Local 770 and the Association 's negotiating committee . Again, Marcus attended
some of these as an observer , and complained to representatives of Local 770 (at
times when formal bargaining sessions were in recess ) that their demands-particu-
larly with respect to overtime pay-"were not liveable ," and that the Respondent
"couldn't go for it," because it would force the Respondent to "disrupt " its "whole
organization" by relocating its trucks "all over the State." He again asked the
representatives of Local 770 if the Respondent had the right to base its trucks
wherever it saw fit, and again received an affirmative reply.
Early in December 1957 Thornton Meisner, a tankdriver employed by the Re-
spondent , was Local 770's shop steward for the Respondent 's drivers. He and
some of the other drivers employed by the Respondent discussed among themselves
the matter of overtime rates and decided that they "could work well and not have
to break any runs if [they ] worked on a trip basis ." Accordingly , they prepared
figures for flat rates for certain long runs. Meisner presented these figures to Marcus.
Purporting to speak on behalf of all the Respondent 's drivers , Meisner stated that
they "had a trip basis set up and that [was] what [they ] wanted to work on."
Marcus agreed to this plan , and it was put into effect during the first week of
December 1957. Shortly before Christmas , Warren R . Hickman, secretary -treasurer
and business agent of Local 770, conferred with Meisner and Marcus at the Re-
spondent 's garage Hickman told Meisner and Marcus that Local 770 "most
strenuously objected" to the use by the Respondent of a trip or flat rate basis of
compensating its drivers , pointed out that this contravened the hourly rate provisions
of "the contract ," and demanded that it cease "immediately ." Marcus replied that
the drivers were being paid time and a half for overtime "pursuant to the agreement,"
and that he "knew nothing about" the flat rate payments . He assured Hickman
that he "would look into it, and if there was such a thing going on that he would
put a stop to it." 12 Shortly thereafter, Marcus stated to some of the Respondent's
tankdrivers that "somebody had turned him in to the Union . . over this trip
basis and he would have to go back on the clock according to the contract." 13 On
January 5, 1958, the Respondent abandoned the flat rate basis of compensating its
tankdrivers on long hauls, and returned to its former system of hourly rates with
time and a half for overtime after 10 hours per day.
10 The lower rate was for tandems under 450 cans' capacity , and the higher gate for
those over 450 cans' capacity.
"A trip or flat rate basis consists of compensating a driver going from one designated
point to another designated point by a specific sum agreed upon in advance.
z2 The findings of fact regarding this conversation are based upon Hickman 's credited
testimony . Marcus testified that he told Hickman that the drivers had proposed the trip
basis , that the Respondent was willing to do whatever the drivers wanted, that "it is up
to the men ," and that Hickman should get "to the men . . . straighten it out with the
men " He denied that the contract was mentioned on this occasion . He further testified
that the Respondent later returned to the former hourly pay basis , with overtime, be-
cause two tankdrivers employed by the Respondent expressed to him their dissatisfaction
with the trip basis arrangement. Messner testified as a witness for the Respondent, but
made no reference in his testimony to this conversation between Marcus and Hickman.
He simply testified • "Mr Marcus told me one night that he was going back to time and
a half." Based on my observation of Marcus ' demeanor while relating these events, I find
his testimony with regard thereto unconvincing, and I do not credit it
1 This finding of fact is based upon the credited testimony of employee Kenneth
Bedford Marcus denied making such a statement . His denial in this respect was not
convincing and is not credited.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meanwhile, on December 30, 1957 , Hickman asked Marcus "about the double
indemnity coverage that should have been provided under the agreement existing
between Local 770 and Marcus Trucking Company." 14 Marcus assured Hickman
that the Respondent carried such coverage for its tankdrivers , and submitted proof
that the widow of a deceased driver had accordingly received payment from a life
insurance company.
B. The Respondent's unilateral change of wage rates in 1957
1. Contentions of the parties
The complaint alleges, and the answer denies, that in January 1958, and at various
time thereafter, the Respondent "unilaterally changed existing wage rates for over-
time work and other terms and conditions of employment of its employees" and
"bargained directly and individually with its employees . concerning rates of
pay, wages, hours of employment or other terms and conditions of employment."
In support of this allegation the General Counsel points to the establishment in the
first week of December 1957 of a flat rate basis of compensation for long hauls.
He argues that Local 770 was then the certified bargaining agent of the Respondent's
tankdrivers, and that Meisner, as shop steward, was not authorized by Local 770 to
negotiate with the Respondent on Local 770's behalf. It follows, he urges, that the
wage change effectuated as the result of Meisner's negotiations with the Respondent,
without the consent of Local 770, constituted a unilateral change in derogation of
Local 770's status as statutory bargaining agent, and hence violated Section 8(a) (1)
and (5) of the Act.
The answer alleges that "since July 31, 1957, . .. Local 770 was not the bar-
gaining representative of its employees." This, however, is not the only defense
relied on. A copy of the charge herein was first served on the Respondent on June
27, 1958, and the Respondent therefore urges in its brief that the change to flat
rates during the first week of December 1957 is barred by the 6-month hmitation
contained in Section 10(b) of the Act. The General Counsel concedes that the
original wage change occurred more than 6 months prior to service of the charge,
and is therefore barred. But he argues that it was a continuing offense so long as
the Respondent kept it in effect, and that that portion of the wage change continuing
from December 27, 1957, through January 5, 1958, when it ceased, is not barred.
2. Conclusions
By virtue of its certification, Local 770 was, at least up to January 5, 1958, the
statutory bargaining agent of the Respondent's drivers.15 This is true regardless
of whether or not there was any collectiveabargaining agreement in force between
the Respondent and Local 770 after July 31, 1957. And for the purposes of this
Intermediate Report it will be assumed, without deciding, that the Respondent's deal-
ings with Meisner during the first week in December 1957, under the circumstances
here present, would have constituted a violation of Section 8(a)(1) and (5) of the
Act, had a charge been timely filed.16 Let us turn to the question of whether the
charge herein was timely filed.
In Goodall Company 17 the respondent granted a wage increase to its employees.
More than 6 months after the increase first became effective, and presumably while
it was still in effect, a charge was filed against the respondent alleging that the in-
crease was designed to discourage union membership, in violation of Section 8(a) (1)
of the Act. The Board rejected the argument that the wage increase constituted a
continuing violation because it was reflecting in recurring salary payments. On the
contrary, the Board held that the charge was not timely filed and dismissed this
portion of the complaint. The Goodall case was later cited by the Board with
approval 18 In the instant case, the gist of the alleged violation is (1) bargaining
with Meisner, and (2) unilaterally adopting a different system of compensation.
Contrary to the General Counsel's contention, and applying the principle enunciated
in the Goodall case, I consider that these matters were finally concluded during the
first week of December 1957, upon the new method of payment being put into effect,
14 Section 13 of the 1955 contract provided for such coverage.
15 Celanese Corporation of America, 95 NLRB 664; and Ray Brooks v. N.L.R.B.,
348 U.S. 96.
le Compare Medo Photo Supply Corporation v. N.L.R.B., .321 U.S. 678
17 86 NLRB 814.
1B Bowen Products Corporation, 113 NLRB 731, footnote 5.
MARCUS TRUCKING COMPANY, INC. 1093
and were not of a continuing nature. It is accordingly found that the charge was
not timely filed and served with regard thereto and that these allegations of the
complaint are barred by the 6-month limitation contained in Section 10(b) of the
Act.
C. Events from January 5 to May 30, 1958
The Respondent had been making regular payments to the Association, as pro-
vided for in the power of attorney executed on July 26, 1956. On January 9, 1958,
Marcus wrote to the Association, in part, as follows: "We are revoking our power
of attorney with the Association, if any did exist at any time prior to this writing."
On or about Feberuary 1, 1958, the Respondent remitted to the Association the final
payment due under the terms of this power of attorney.
On January 20, 1958, the Association's negotiating committee again met with
representatives of Local 770 in a bargaining session, and executed an agreement in
the form of modifications of a draft submitted by the Association. This document,
which was to take effect on August 1, 1957, and to terminate on July 31, 1960,
specifically named the Respondent as an employer. It further provided: "Upon com-
pletion of the printing of this draft, both parties shall sign the necessary printed
copies." Accordingly, sometime between January 28 and February 3, 1958, repre-
sentatives of the Association and Local 770 executed a complete contract with the
same duration provision, and providing that it should be binding on certain named
association members, including the Respondent. It also established hourly rates of
$2.37 and $2.47 (to be raised August 1, 1958, and again August 1, 1959), and time
and a half for overtime over 10 hours per day. Spaces were provided for confirma-
tion of the Association's authority by the signature of a representative of each of the
named employers. Although a meeting of the Association was called for the pur-
pose of obtaining such signatures a quorum failed do attend, and all the spaces pro-
vided for confirmatory signatures remained blank.
On many occasions from January 5, 1958, on, Marcus continually complained to
the Respondent's tankdrivers that the payment of time and a half for overtime over
10 hours per day imposed a hardship on the Respondent. He pointed out that some
competing firms (which he named) had been forced to relocate their terminals and
"uproot their men," that he had no desire to "hurt" the Respondent's drivers, and
that "it is up to the men to decide whatever they want to do." He specifically men-
tioned that Van Rompaye-Palmer Trucking Co. had a competitive advantage over
the Respondent because that firm had a contract which did not require the payment
of time and a half for overtime. It was a "known fact" that Van Rompaye-Palmer
at that time had an agreement with Local 602 concerning the working conditions
of its tankdrivers. In March or April 1958 Marcus posted on the Respondent's bul-
letin board a notice asking for volunteers to move to Cairo or Libery. Only "one
or two" drivers signified their interest.
On March 4, 1958, Chester E. Decker, president of Local 770, conferred with
Marcus at the Respondent's garage concerning a collective-bargaining agreement to
cover the Respondent's mechanics.19 Marcus complained about the overtime pay
for drivers, pointing out that the Respondent was unable to bid for runs com-
petitively against Van Rompaye-Palmer, whose contract contained no overtime pro-
visions. Decker further discussed with Marcus seven employees of the Respondent
who had been employed more than 30 days and were delinquent in the payment of
their dues and initiation fees to Local 770 and threatened "to knock them off the job
pursuant to Section 5 of the contract, because they were not paid up." 20 Marcus
replied: "Whatever you want to do. You will have to write me a letter on it."
Late in April or early in May 1958 a "barn" meeting of the Respondent's tank-
drivers was held, chaired by Meisner. Approximately 35 to 38 drivers attended 21
The subject discussed was "whether or not we should change our local and what
local we should try to change to." The men present instructed Meisner to contact
four specified Teamsters' locals, including Local 602, and "to find out which one
would transfer us or take us." Meisner got in touch with Frank Brenning, vice
11 Marcus testified that on this occasion Decker also negotiated with him concerning a
contract for the Respondent's drivers. Decker denied this. Decker's denial in this respect
was convincing and is credited.
20 Section 5(g) of the contract executed on or before February 3, 1958, contained a
provision that the employer would discharge any tankdriver within 7 days after demand
by Local 770 if the drivers had been employed more than 30 days and had failed to pay
dues and initiation fees to Local 770.
21 So far as appears, nobody other than rank-and-file drivers of the Respondent attended
this meeting
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president of Local 602 . Another "barn" meeting was then held, attended by about
12 of the Respondent's tankdrivers and Brenning . He suggested that the drivers
sign a petition indicating their desire to transfer to Local 602 , and promised that if
they sent one to Local 602 and another to the Teamsters ' Joint Council , he would
"see what we could do about it."i Thereafter Meisner, with the help of one other
driver employed by the Respondent , circulated three petitions among the Respond-
ent's employees , all of which read:
We, the drivers of the Marcus Trucking Company of Monroe , New York, being
very much dissatisfied with Local 770 are filing this petition for transfer to
Local 602.
No supervisor or official of the Respondent knew that these petitions were being
circulated . Each petition was signed by 35 of the Respondent 's tankdrivers and
seven of its mechanics . 22 Meisner sent one petition to an official of the Teamsters'
International , and another to Brenning . On May 25 and 26, 1958, Meisner pre-
sented the third petition to Marcus . At that time , the Respondent had a total work-
ing complement of about 54 employees , of whom approximately 46 were tank-
drivers.
On May 26 and 27, 1958, Hickman removed Messner as Local 770's shop steward
for the Respondent 's drivers , and appointed driver Kenneth Bedford to that post in
his place.
About 1 a.m. on May 30, 1958 , Local 770 called a strike of all the Respondent's
employees, both drivers and mechanics . About 10 men, including 2 officials of
Local 770, gathered outside the Respondent 's garage. They carried no signs. The
only one of the Respondent 's employees who joined these "pickets " was Bedford.
All the rest of the Respondent's employees then on duty continued to work and the
Respondent 's operations were not substantially affected. Sometime between 1 and
3:30 a.m., Marcus conferred with Hickman , Decker, and Bedford at Local 770's
headquarters in Middletown , New York. Hickman presented Marcus with a
collective -bargaining contract covering the Respondent 's mechanics and demanded
that Marcus sign it; Marcus refused to do so. Hickman also presented Marcus with
a contract covering the Respondent 's drivers and demanded that Marcus sign it.
Marcus answered. "Why should it be necessary ? I have got a contract. . You
know I have a contract with Local 770. I have been living up to it, have I not?"
Hickman replied : "Well, not entirely . But you maintain , then, that you do have a
contract with Local 770?" Marcus responded : "Of course ." Hickman then said:
"If you are bound by it, if you have a contract . . . why should you mind signing
it? . . . It wouldn't matter if you signed one, three or five drivers 's agreements .. .
as a sign of good faith." Marcus answered : "Well, I have got a contract and there
is no reason why I should sign this one." The conference then ended 23 Between
4 and S a m. the "pickets" were withdrawn and the "strike" was called off. Some-
time between 11 a.m. and 1 p.m., Brenning came to the Respondent's garage and
presented Marcus with a collective -bargaining contract between Local 602 and the
Respondent covering the Respondent 's drivers . Pointing out that "770 couldn't pull
out your men ," Brenning demanded that Marcus sign this contract , and threatened
that, if he refused to do so, Local 602 would call a strike of the Respondent's em-
ployees Thereupon Marcus and Brenning both signed the contract . This agree-
ment, dated September 1957, states that it shall be effective August 1, 1957 , and that
it shall terminate July 31, 1960 . Among other things, it provides for hourly wages
of $2.37 and $2.47, and overtime "at the straight time rate of pay." Since May 30,
1958, the Respondent has discontinued the payment of its drivers of time and a half
for overtime after 10 hours per day, and has ceased the checkoff of its drivers' union
22The Board had certified Local 770 as the representative of the Respondent's me-
chanics on January 16. 1957. Case No. 2-RM-824 Thereafter Marcus bargained di-
rectly with officials of Local 770 regarding the Respondent ' s mechanics , but no collective-
bargaining contract resulted.
' The findings of fact with regard to this conference are based upon a synthesis of the
credited testimony of Rickman and Decker . Although Bedford testified that be attended
this conference , he did not describe the conversations between Marcus and Rickman.
Marcus gave a somewhat different version. He also testified that both contracts were
presented to him and that he refused to sign either of them But he testified that he
gave as his reason that the men had chosen to be represented by Local 602 and he would
be guided by their wishes Regardless of whether or not Marcus made this remark, I am
convinced and find that he gave as one of his reasons for refusing to sign the drivers'
contract the fact that he already had a drivers ' contract with Local 770
MARCUS TRUCKING COMPANY, INC., 1095
dues to Local 770. Also since May 30, 1958, the Respondent has checked off to
Local 602 the union dues of those of its drivers who have authorized it to do so.
D. The appropriate unit and Local 770's majority status as of May 30, 1958
1. Contentions of the parties
The complaint alleges that in August 1957, the Association and Local 770 "agreed
on terms of a collective bargaining agreement to succeed" the 1955 contract between
them, that in January or February 1958 "a collective bargaining agreement was
executed by [the Association] and Local 770 which . . . applied to the employees
of members of [the Association] engaged in work as . . . drivers" and that the
Respondent "became party to and at all times thereafter was bound by" this agree-
ment. In support of this contention, the General Counsel points to the provisions
of the power of attorney executed by the Respondent on July 26, 1956, and main-
tains that it remained in full force and effect at least beyond February 3, 1958,
when the Association and Local 770 signed their contract, because (1) the Respond-
ent's failure to deliver a notice of cancellation to the Association by registered mail
on or before December 31, 1956, automatically renewed the power of attorney to
May 31, 1958; and (2) in any event, the power of attorney was not revokable until
May 31 after the final payment due thereunder was made, and this did not take
place until February 1, 1958. Conceding that the Respondent attempted to with-
draw from its power of attorney at the association membership meeting of May 29,
1957, and again in its letter of January 9, 1958, and that the Association could have
agreed to such withdrawal had it seen fit to do so, the General Counsel argues that
the Respondent's attempts were ineffectual because the Association never assented
thereto, urging (1) that only the board of directors of the Association was em-
powered to take action, therefore the motion of the Association's membership on
May 29, 1957, was merely advisory, and (2) the board of directors never took the
requested action but on the contrary the Association thereafter concluded an agree-
ment specifically naming the Respondent as an employer covered thereby. Hence,
maintains the General Counsel, when the Association executed the agreement on
February 3, 1958, covering the working conditions of drivers of the Respondent and
other named association members, it was acting within the scope of its authority as
agent for the named employers.24 And even were this not so, urges the General
Counsel, the conduct of the Respondent amounted to a ratification or adoption of
the contract which the Association executed on the Respondent's behalf.
Based on the above, the complaint further alleges that at all times since July 1956
"the employees of members of [the Association] engaged in work as chauffeurs or
drivers" have constituted a unit appropriate for collective bargaining, and that the
Respondent has represented a majority of the employees in such unit and therefore
"has been and is now the exclusive representative of all the said employees for the
purpose of collective bargaining." The complaint also alleges that on or about
May 29, 1958, "during the term of the collective bargaining agreement referred to
-above," the Respondent "and Local 602 entered into and since that date have main-
tained in effect and enforced , a collective bargaining agreement relating to .
terms and conditions of employment of the employees of [the Respondent ] engaged
in work as . drivers" and that the Respondent thereby "withdrew and withheld
recognition from Local 770 as the exclusive bargaining representative of the em-
ployees of [the Respondent] referred to above," in violation of Section 8(a) (1), (2),
and (5) of the Act. Moreover, the complaint alleges that, by virtue of the above,
the agreement of May 29, 1958, between the Respondent and Local 602 "is invalid
and in violation of the Act."
The answer alleges that the Board "is without jurisdiction to determine whether
or not a valid and subsisting contract with Local 770 is in effect," maintaining that
"any such determination is relegated to the authority and jurisdiction of courts of
competent jurisdiction." The answer further alleges that "any authority which [the
Association] may have had prior to May 29, 1957, [to] negotiate and bargain
for . collective bargaining agreements, was revoked and thereafter [the Associa-
tion] had no authority to enter into or negotiate . . any collective bargaining
agreement with Local 770" and that if any such agreement was thereafter made, it
"was accomplished without any authorization from the Respondent" and is "not
binding upon the Respondent." In this regard, the Respondent contends that the
a+ This is bottomed only on the power of attorney executed on July 26 , 1956. No con-
tention is made that the power of attorney executed by the Respondent on June 5, 1957.
which was not accepted by the Association , had any force or effect.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion passed by the membership of the Association on May 29, 1957 , referred to
above , effectively canceled its outstanding power of attorney , even in the absence of
further action by the Association 's board of directors.
The answer admits that on or about May 29, 1958 , the Respondent and Local
602 "entered into and since that date have maintained in effect and enforced, a
collective bargaining agreement relating to hire , tenure, terms and conditions of
employment" of the Respondent 's drivers, but denies that by so doing the Re-
spondent "withdrew and withheld recognition from Local 770 as the exclusive
bargaining representative of its employees" because "since July 31, 1957, the said
Local 770 was not the bargaining representative of its employees ." In this connec-
tion , the answer alleges that "an overwhelming majority of [ the Respondent's]
employees demanded that it recognize Local 602 ," that by virtue thereof Local 602
has been since May 29, 1958 , and now is , the exclusive bargaining representative
of the Respondent 's employees , and that it therefore recognized Local 602 as such,
"inasmuch as [the Respondent ] did not have any contract with any other labor
union ." The answer further denies that the Respondent 's contract with Local 602
is invalid , but on the contrary alleges that it is "in full compliance with the letter,
intent and spirit of the National Labor Relations Act."
Presumably by way of rebutting the Respondent 's asserted defense that the
majority of the Respondent 's drivers selected Local 602 as their bargaining agent on
or before May 29 , 1958 , the General Counsel at oral argument took the position
that "in numerous conversations that Marcus had" with the Respondent 's drivers
prior to that date, he "encouraged " them to "leave Local 770," thereby "undermining
the already-existing bargaining representative ." The Respondent 's counsel vigor-
ously contended to the contrary , namely "that the petition [presented by Meisner to
Marcus on May 25 or 26 , 1958] was not instigated by Mr. Marcus; . that he did
not require or force or even request the [ Respondent 's drivers ] to seek other affilia-
tion." In any event , maintains the General Counsel , under the Board 's so-called
contract-bar doctrine the contract with Local 770 executed on February 3, 1958,
having been in force less than 2 years on May 30, 1958 , effectively barred any
change of bargaining representatives at that time , regardless of the desires of the
employees concerned.
2. Effectiveness of the Respondent 's 1956 power of attorney
At the threshold , let us examine the Respondent 's contention that the Board
lacks power to determine the efficacy of the Respondent 's 1956 power of attorney,
and hence the binding effect on the Respondent of the contract between the Associa-
tion and Local 770 executed on or before February 3, 1958. For the purpose of
determining whether or not the time was ripe for employees to make a new
selection of bargaining agent , the Board has on countless occasions decided whether
or not there was in existence a binding contract between an employer and a union.
Indeed , for such purposes , the Board less than a year ago, in a case involving another
member of the Association , determined that the very contract here in question-
the contract of February 3, 1958 , between the Association and Local 700-was
binding on that association member by virtue of its power of attorney and consti-
tuted a bar to an election among that member 's employees.25 I therefore conclude
that the Board has the power to make a similar decision herein 25
We turn next to an examination of the power of attorney , and the Respondent's
attempts to revoke it. The first such attempt was the resolution passed by the
Association's membership at the meeting of May 29, 1957 . This was effective only
if the membership , as contrasted with the board of directors , had power to act.
But under New York law , it is the directors , not any other group, which is author-
ized to manage the corporation 's affairs and conduct its business27 Hence the
action of the Association 's membership was advisory only , and not binding on its
a Central Milk Haulers, Inc ., Case No. 3-RM-155, Decision and Order dated October 1,
1958, unpublished.
20 United Telephone Company of the West, et al., 112 NLRB 779, cited by the Respond-
ent, is inapposite . There, construction of the contract was pending before a court. No
such facts appear here.
=New York General Corporation Law, Sec. 27 ; Blau8tein, et al. v Pan American
Petroleum t Transport Co., et al., 263 App. Div. 97 , 31 N.Y S . 2d 934, 946 ; Hastings v.
International Paper Co., et al, 187 App. Div. 404 , 175 N.Y.S. 815 , 819, Kelsey v.
Sargent, 40 Hun. (N.Y. ) 150, 154 , and Hauben v. Morris, 161 Misc. 174, 291 N.Y.S.
97,106.
MARCUS TRUCKING COMPANY, INC. 1097
board of directors 28 And the board of directors took no action to revoke the
powers of attorney 29 On the contrary , they entered into negotiations on their
members' behalf , a course of action inconsistent with the membership 's resolution.
The Respondent , however , points to the fact that a few days after the May 29
meeting new powers of attorney were sent to members for signature , and they were
told that the Association "must have your Company 's authority to represent it."
From this the Respondent would conclude that the "old" powers of attorney had
already been canceled , else why would new ones be sought ? The fallacy of this
reasoning is that it can just as logically be concluded that the board of directors
desired all the members to sign new powers before it was willing to release any
of them from their old ones. However , we need not delve into the board of
directors' motives. It is enough for our purposes to find , as I do, and as the Board
has already done in Central Milk Haulers ,90 that the action suggested by the mem-
bership, namely , that the powers of attorney should be revoked , has never been
taken by the Association's board of directors.
At the hearing , the Respondent further argued that the negotiations by the
Association did not contravene the members ' desires, as expressed at the May 29
meeting, but that , on the contrary , the members had authorized the Association
merely to negotiate for them , but to stop short of contracting on their behalf.
There is nothing in the minutes of the meeting, or elsewhere in the record, to
substantiate this contention . Moreover , it is contrary to the position taken by the
Respondent in its answer ,31 and to the authority granted the Association in the
power of attorney.32
The Respondent also points to the testimony of the Association 's president as
follows:
Q. (By Mr . Klein.) Is it not a fact Mr . Redner that before you could make
an agreement for Mr . Marcus, you had to get his approval?
The WITNESS : Well . . . the negotiating committee was authorized by the
Association to go to a certain increase in wages. Now, if the negotiations
didn't go over that increase , then we could go ahead and sign a contract. If
it did go over that increase that we were authorized to give, then it was to come
back before the Association.
Q. (By Mr. Klein .) Now, is it not a fact that the negotiations , as you term
them, went in excess of the increase that you spoke about?
A. Yes, sir.
Q. And then based on that you were required to come back to Mr . Marcus
as far as his position was concerned to ask his approval to bind him to a
contract?
A. It was to come back before the entire association . Nobody in particular.
Just an association meeting.
28 The Respondent contends In its brief : "We submit that the action at this meeting was
the action not only of the membership but of the board of directors as well. All five
directors were present and voting ." But it does not follow that their joint action in a
board of directors ' meeting would necessarily have been the same People's Bank v.
Saint Anthony's Roman Catholic Church, 109 N.Y. 512, 17 N.E 408, 409 ; and Columbia
Bank v. Gospel Tabernacle Church, 127 N.Y. 361, 28 N.E. 29.
^ This finding that the resolution of the membership was merely advisory concurs with
the opinion given the membership at the meeting of May 29, 1957 , by the Association's
attorney . Thus, he testified : "In response to further question whether the members
could dissolve the remaining powers of attorney , I advised the membership they could
not effectively do so except through the corporation 's directors . I said any attempt by
them to do so would be advisory and instructive only to the Board of Directors, but
would not bind the Board or the corporation ." The same reasoning was applied to the
resolution in question , and the same result reached , by the Board in Central Milk Haulers,
Inc., supra, where the Board found : "The Board of Directors has in fact Ignored the
resolution."
80 Supra. I find no merit in the Respondent 's contention that Central Milk Haulers
is distinguishable on its facts from the instant case.
81 Section 3 of the answer reads In part : "any authority which [the Association] may
have had prior to May 29, 1957, [to] negotiate . . . collective bargaining agreements,
was revoked and that thereafter , [ the Association ] had no authority to enter into or
negotiate any collective bargaining agreement.. . .
82 The power of attorney authorizes the Association "to negotiate and conclude"
collective-bargaining agreements on the Respondent 's behalf.
1098 DECISIONS OF, NATIONAL LABOR ". RELATIONS BOARD
'Q. Now, was any such association meeting held? - -
A. No, sir. "
From this the Respondent -argues that if the Association had any authority to
contract on the Respondent 's behalf, that authority was limited, and the limit was
exceeded when the contract in question was executed . The short answer to this is
that the power of attorney ` granted to "such committee as [the Association]
may designate" sweeping and unqualified authority to decide on the terms of `any,
contract it signed ,33 and this authority could not be limited without the concurrence
of the Association 's board of directors . No such concurrence has been shown.34
The second attempt by the Respondent to withdraw its power of attorney , Marcus'
letter to the Association on January 9, 1958, was equally ineffectual . It came too
late and was not delivered by registered mail. Moreover , the power of attorney
could not be revoked until May 31 after all funds due thereunder had been paid
by the Respondent to the Association .' It is true that the -Association 's board of
directors , had it desired, could have waived these defects and released the Respond-
ent; but for the second time it failed to take advantage of an opportunity to do so.
Indeed, 'less than a month later the agreement between ' the Association and Local
770, which named the Respondent as one of the employers covered thereby, was
executed.
In view of the above , it is found 'that the power of attorney given by the Respondent
to the Association on July 26, 1956, was not effectively revoked, and was in full
force and effect at least up to February 3, 1958. It follows that on February 3,
when the Association signed a contract with Local 770 covering drivers , which pur-
ported to bind the Respondent , the Association was acting as the Respondent 's agent
within the scope of its authority , and the Respondent is bound thereby. I so find.
3. • The Respondent 's ratification of the • contract
The Respondent points to its failure to sign the space provided for confirmation in
the February 3, 1958, contract , and the unsuccessful attempt by Hickman to secure
Marcus' signature on a drivers ' contract on May 30, 1958. From these facts the
Respondent reasons in its brief that "at all times" Local 770 "knew . .. full well"
that the Respondent "was not a party to any undertaking by the Association." I
cannot agree . Consider the Respondent 's conduct in the following respects:
1. Marcus personally attended as observer some of the bargaining sessions at
which the Association was purporting to act on behalf of its members, including the
Respondent . Yet he did not protest to representatives of Local 770 that the Asso-
ciation lacked authority to bind the Respondent.35
2. Although the Respondent wrote the Association on January 9, 1958, attempting
to revoke its power of attorney "if any did exist," no copy of this letter was sent
to Local 770 , nor was the letter called to the attention of Local 770 's representa-
tives in any other way.
3. Marcus continually and bitterly complained to Local 770 's representatives and
to the Respondent 's employees that overtime payments were hurting the Respondent.
33 Thus the power of attorney read • "The terms and conditions of any such collective
labor agreement will be determined by the Committee , and [the Respondent] will be
bound by such determination and agreement."
34 The Respondent 's brief states that "the custom and practice between the Association
and [Local 770] required the signatures and approval of the individual members to any
contract." Even had such custom or practice existed prior thereto , it was superseded by
the express powers conferred upon the Association in the Respondent 's power of attorney
executed July 26, 1956.
The Respondent's brief also states that the constitution and bylaws of the Union (of
which the Board is asked to take official notice ) required ratification of the contract by
the membership of Local 770 . But the contract neither incorporated the Union's con-
stitution and bylaws , nor provided that pit was only to become effective when ratified by
the Union 's membership.
w The finding that Marcus made no such protest is based on the credited testimony of
Hickman and Decker Marcus' contrary testimony was not convincing and is not credited.
In this connection , it should be noted that the Association ' s officers in whose presence
Marcus testified he made such protests were not called to the stand by the Respondent
to corroborate his testimony in this regard.
It is true , as related in the Respondent's brief, that during the negotiations Marcus
complained to representatives of Local 770 that the terms they proposed were not accept-
able to the Respondent . But this is a far cry from denying the Association's authority to
contract on the Respondent ' s behalf.
MARCUS TRUCKING COMPANY, INC. 1099
Yet from the last of August 1957 until May 30, 1958, with the, exception of about
a month, the Respondent paid this overtime, and the hourly wages set forth in the
contract, even though this put the Respondent at a competitive disadvantage.
Marcus' conduct when Hickman complained late in December 1957 that the trip
basis of compensation contravened provisions of "the contract" is particularly
revealing: He promised that if such a thing were going on he would put a stop to it.
And shortly thereafter he told some of the Respondent's drivers that he would
return to hourly rates "according to the contract." 36
4. At all material times up to May 30, 1958, the Respondent continued to check
off its drivers' union dues, and remit them to Local 770 as required by the contract 37
5. On December 30, 1957, when Hickman asked Marcus about the double
indemnity insurance required "under the agreement existing between Local 770 and
Marcus Trucking Company," Marcus assured Hickman that the Respondent carried
such coverage. On March 4, 1958, when Decker threatened, "pursuant to Section
5 of the contract," to seek discharge of some of the Respondent's drivers who were
delinquent in their payments to Local 770, Marcus replied: "You will have to write
me a letter on it." In each instance, although Local 770's representative made
specific reference to the contract, Marcus gave no indication that the Respondent
did not consider itself bound thereby.
6. Finally, early on May 30, 1958, before the contract with Local 602 had been
signed, Marcus unequivocally admitted to Local 770's representatives that the
Respondent was under contract to Local 770.
The above-described -actions clearly were of -such -a nature as to convey reason-
ably to Local 770 that the Respondent considered itself bound by the contract.
Hence it constituted an adoption or ratification thereof. It is accordingly found
that, even assuming the Association lacked authority to contract on the Respondent's
behalf on February 3, 1958, the Respondent is bound by the contract of that date,
in view of its subsequent conduct.38
4. Conclusions
a. The appropriate unit
The unit originally found appropriate by the Board in 1956 was limited to drivers
employed by the Respondent. However, during the same year the Respondent joined
the Association and became a party to the 1955 contract embracing the drivers of
all association members. By virtue of these facts the original single-employer unit
became merged in a more comprehensive multiemployer unit composed of the
drivers employed by all association members. This situation must be deemed to
have prevailed on May 30, 1958, unless the Respondent or Local 770 had in the
meantime withdrawn from multiemployer bargaining. And Local 770 certainly
had not done so,39 as evidenced by its representative's signature on the multiemployer
-contract of February 3, 1958.
Had the Respondent effectively withdrawn from multiemployer bargaining before
May 30, 1958? In Retail Associates, Inc,40 the tests for withdrawing effectively
from multiemployer bargaining were laid down. It was there stated by the Board:
The right of withdrawal by either a union or employer from a multiemployer
unit has never been held, for Board purposes, to be free and uninhibited, or
exercisable at will or whim. For the Board to tolerate such inconsistency and
36 The Respondent argues in its brief that the payment of increased rates by the
Respondent to its drivers after mid-August 1957 does not tend to prove adherence by
the Respondent to the contract, because the "increased wages and other benefits . . .
were part of the prevailing custom in the industry " But at the same time, the Respond-
ent claims that it was at a competitive disadvantage because Van Rompaye-Palmer was
not paying its drivers on an overtime basis.
s'+ In evaluating this conduct, I have taken into consideration, as set forth in the
Respondent's brief, that the Respondent continued to check off its mechanics' dues to
Local 770 even though it had no contract with Local 770 requiring it to do so.
38 Compare Dairy Transportation Drivers, Helpers and Terminal Employees, Local
Union 770, et al. v. Central Milk Haulers, Inc., et al, Supreme Court, Orange County
(N Y.), July 8, 1958, involving the same contract
39 Marcus testified that between July 31, 1957, and May 30, 1958, he bargained with
Local 770 directly for a contract to cover the Respondent's drivers. Hickman and
Decker denied that this had occurred . Their denial in this respect was convincing and
is credited.
ao 120 NLRB 388, 393-394.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uncertainty in the scope of collective-bargaining units would be to neglect its
function in delineating appropriate units under Section 9 , and to ignore the
fundamental purpose of the Act of fostering and maintaining stability in bar-
gaining relationships . Necessarily under the Act, multiemployer bargaining
units can be accorded the sanction of the Board only insofar as they rest in
principle on a relatively stable foundation . While mutual consent of the Union
and employers involved is a basic ingredient supporting the appropriateness of
the multiemployer bargaining unit , the stability requirement of the Act dictates
that reasonable controls limit the parties as to the time and manner that with-
drawal will be permitted from an established multiemployer bargaining unit.
Thus, the Board has repeatedly held over the years that the intention by a party
to withdraw must be unequivocal , and exercised at an appropriate tlme.'0 The
decision to withdraw must contemplate a sincere abandonment, with relative
permanency, of the multiemployer unit and the embracement of a different
course of bargaining on an individual-employer basis . The element of good
faith is a necessary requirement in any such decision to withdraw, because of
the unstabilizing and disrupting effect on multiemployer collective bargaining
which would result if such withdrawal were permitted to be lightly made.
10 See , e.g, McAnary & Welter, Inc ., 115 NLRB 1029 ; Jahn-Tyler Printing and
Publishing Company, 112 NLRB 167.
Let us apply these principles to the instant situation . Marcus' conduct in relation-
to the Respondent 's purported withdrawal was equivocal . On the one hand, by
the letter to the Association of January 9 , 1958 , the impression was created vis-a-vis
the Association that the Respondent desired to withdraw . On the other hand , Marcus'
entire course of conduct in his dealings with Decker and Hickman left no doubt of
the Respondent 's intent and understanding that it was subject to the multiemployer
drivers' contract executed on February 3, 1958 . Moreover , the time was not ripe
for either party to withdraw at any time after June 25 , 1957 , when negotiations
for the new multiemployer contract actually commenced 41 I find, accordingly, that
the Respondent had not effectively withdrawn from multiemployer bargaining prior
to May 30, 1958.
It does not necessarily follow , however, that the multiemployer unit existing on
May 30 , 1958 , embraced the drivers of all association members. Members other
than the Respondent may have effectively withdrawn before that date. Thus, at the
association membership meeting of May 29 , 1957 , the Association 's counsel stated
that two members had effectively revoked their powers of attorney. And six asso-
ciation members named as employers in the 1955 agreement were omitted from the
contract of February 3, 1958 . In this posture of the case it seems clear , and it is.
found , that on May 30, 1958 , the appropriate unit consisted of the tankdrivers.
employed by the Respondent and other members of the Association who had not
prior thereto effectively withdrawn from multiemployer bargaining.
b. Local 770's majority status
The Board has formulated so-called contract -bar rules designed to strike a balance
between the right of employees to change their bargaining agent, on the one hand,
and the public 's interest in industrial stability , on the other. Under these rules, a
contract for more than 2 years ' duration constitutes a bar to a redetermination of
bargaining agent for a period of at least 2 years from its effective date.42 The con-
tract of February 3, 1958, between the Association and Local 770, which it has
been found was binding on the Respondent , was to take effect on August 1, 1957,
and to terminate on July 31 , 1960 . Accordingly , under the rule described above, it
constituted a bar until July 31, 1959. Therefore in May 1958 the time was inappro-
priate for a change of bargaining representative for the Respondent 's drivers, and
their attempt to substitute Local 602 for the contracting bargaining agent, Local
770, was ineffectual . It follows, and I find , that on May 30, 1958 , Local 770, was,
and at all times since has been , the statutory bargaining representative of the employ-
ees in the unit described above , including drivers employed by the Respondent.
c. Violations occurring on May 30, 1958
In view of the above , Section 8(a)(5) of the Act imposed on the Respondent a
duty to deal only with Local 770 as the representative of its drivers, and to refrain
41 Retail Associates , Inc, supra, at 395.
43 Benjamin Franklin Paint and Varnish Company, a Division of United Wallpaper,
Inc., 124 NLRB 54.
MARCUS TRUCKING COMPANY, INC. 1101
from so dealing with any rival union 43 But, urges the Respondent, when it con-
tracted with Local 602 on May 30, 1958, it did so in the good-faith belief 44 that a
majority of its drivers had selected Local 602 rather than Local 770 as their bar-
gaining agent, ,and that it therefore did not violate the Act by dealing with Local 602.
This argument misconstrues the Respondent's statutory obligations. In connection
with this defense , let us examine some pronouncements of the Board and the courts
relating to basic principles.
In Medo Photo Supply Corporation v. N.L.R.B.,45 the United States Supreme
Court stated:
Petitioner was not relieved from its obligations because the employees asked
that they be disregarded. The statute was enacted in the public interest for the
protection of the employees' right to collective bargaining and it may not be
ignored by the employer, even though the employees consent, [citations] or the
employees suggest the conduct found to be an unfair labor practice, [citations]
at least where the employer is in a position to secure any advantage from these
practices... .
In Hexton Furniture Company 46 the Respondent and the certified union had
signed a collective-bargaining contract in November 1952, effective to December
1954. In December 1953 a majority of the employees in the collective-bargaining
unit signed forms revoking their dues checkoff authorizations. The Respondent
then advised the Union that it was withdrawing recognition. In finding that the
Respondent thereby violated Section 8(a)(1) and (5) of the Act, the Board said:
A collective-bargaining representative is a statutory agent.5 The National
Labor Relations Act provides machinery by which employees may select or
change their bargaining representatives. In pursuance of the statutory objective,
the Board has formulated a number of rules for determining the circumstances
under which it will entertain petitions to displace an incumbent bargaining
representative in the face of an outstanding collective-bargaining agreement
between the employer and the incumbent representative. These so-called con-
tract-bar rules have become an established part of the law of labor relations.
They received the approval of Congress when it amended the Act in 1947,6
and have been "as it were, written into the statute." 'r The most important of
these rules is that, in the absence of certain circumstances not present here,
the Board will not entertain a representation petition seeking a new determina-
tion of the employees' bargaining representative during the middle period of a
valid outstanding collective-bargaining agreement of reasonable duration. When
on December 4, 1953, the Respondent withdraw recognition from the Union,
its collective-bargaining agreement with that labor organization still had ap-
proximately 1 year to run. If, therefore, the Respondent had filed a petition
for a redetermination of the Union's bargaining status, the Board would have
dismissed it as premature. Similar treatment would have been accorded a
petition filed by another labor organization, or a decertification petition filed by
employees. "It follows, therefore, that for the period during which the contract
was a bar and no question concerning representation might validly be raised,
the Respondent was under an obligation to recognize and bargain with the
Union." 8 Otherwise, we should have the anomalous result of an employer
being permitted unilaterally to redetermine his employees' bargaining repre-
sentative at a time when the Board would refuse to make such redetermination
because the time is inappropriate for such action. Accordingly, by withdraw-
ing recognition from the Union during the middle of the contract term, the
Respondent unlawfully refused to bargain with the Union.
6 American Seating Company, 106 NLRB 250.
6 Sen. Rep. No. 105, 80th Cong. 1st Sess., p. 25; H.R. Conf. Rep No. 510, 80th
Cong. 1st Sess., p 50.
7Fay v. Douds, 172 F. 2d 720, 724 (C.A 2).
88anson Hosiery Mills, Inc., 92 NLRB 1102, 1103, enfd 195 F. 2d 350 (C.A. 5),
cert. denied 344 U.S. 863. Cf. Sears Roebuck and Co., 110 NLRB 226.
43 Medo Photo Supply Corporation v. N L R.B., 321 U S. 678.
"Fostered, no doubt, by 35 drivers' signatures on the petition presented to Marcus by
Meisner on May 25 or 26, 1958, and the failure of Local 770 to produce an effective strike
of the Respondent's employees earlier on May 30, 1958.
+6 321 U.S. 678, 687.
-Ill NLRB 342, 343-344.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Hexton case was cited with approval and followed 'in Shamrock Dairy, Inc.,
et al.,47 where the Board stated: - -
the Union was the majority representative" of the,Respondent's employees
at the time of the execution of the 1953 contract. 'We further find that the
Union enjoyed such status for the duration of the contract. By virtue of the
existence of the contract, the Union was entitled to such recognition for the
period during which the contract was a bar to a redetermination of its bar-
gaining status. At the time of the inception of the alleged refusal to bargain
in July 1955, the 1953 contract had about 21 months to run. No reason
appears why that contract then would not have been a bar to a redetermination
of the Union's bargaining status for the remaining period of the contract. On
the basis of the foregoing, we conclude that it was incumbent upon the Re-
spondent to treat with the Union as the majority representative of the em-
ployees involved herein at the time of the alleged refusal to bargain.
In Ray Brooks v. N.L.R.B.,48 the United States Supreme Court said:
Petitioner contends that whenever an employer is presented with evidence that
his employees have deserted their certified union, he may forthwith refuse to
bargain. In effect, he seeks to vindicate, the rights of his employees to select
their bargaining representative. If the employees are dissatisfied with their
chosen union, they may submit their own grievances to the Board. [Citations.]
If an employer has doubts about his duty to continue bargaining, it is his
responsibility to petition the Board for relief while continuing to bargain in
good faith at least until the Board has given some indication that this claim has
merit. [Citations.] Although the Board may, if the facts warrant, revoke a
certification or agree not to pursue a charge of an unfair labor practice, these
are matters for the Board; they do not- justify employer self-help or judicial
intervention. The underlying purpose of this statute is industrial peace. To
allow employers to rely on employees' rights in refusing to bargain with the
formally designated union is not conducive to that end, it is inimical to it.
Congress has devised a formal mode for selection and rejection of bargaining
agents and has fixed the spacing of elections, with a view of furthering in-
dustrial stability and with due regard to 'administrative prudence.
Under the doctrine of the Hexton and Shamrock Dairy cases, the Respondent's
good-faith belief that Local 602 represented a majority of its drivers is not in issue.
By recognizing Local 602 as the agent of its drivers on May 30, 1958-an inappro-
priate time-the Respondent withheld and withdrew recognition from Local 770,
the statutory bargaining agent, and thereby refused to' bargain with it, in violation
of Section 8(a) (5) of the Act. And this is true whether or not a majority of the
Respondent's drivers had selected Local 602 as their bargaining representative for
they were not then free to do so.49 By the same conduct, the Respondent interfered
with, restrained, and coerced its employees, in violation of Section 8(a)(1) of the
Act. And by such conduct the Respondent also rendered illegal aid and assistance
to Local 602, in violation of Section 8 (a) (2) of the Act.
Aside from the bare recognition of Local 602 and the entering into a contract
with it, another violation is involved. It will be recalled that on May 30, 1958, the
Respondent ceased paying to its drivers the overtime which it had previously been
paying. This was effectuated without prior notice to or consultation with Local 770.
Such a unilateral change in working conditions independently constituted a refusal
to bargain, and therefore was violative of Section 8(a)(5) of the Act. Moreover,
the same conduct served to interfere with, restrain, and coerce the employees in
violation of Section 8 (a) (1) of the Act.
E. Legality of the terms of the contract of May 30, 1958
1. Contentions of the parties
The complaint alleges that the contract of May 30, 1958, between the Respondent
and Local 602 contained inter alia the following provisions, which are violative of
Section 8(a)(1), (2), and (3) of the Act:
- 119 NLRB 998, 1002.
43 348 U. S. 96, 103.
49 It is therefore unnecessary to decide whether or not Marcus' statements to the
Respondent's drivers "encouraged" them to abandon Local 770 in favor of Local 602, as
the General Counsel contends.
MARCUS TRUCKING. COMPANY, INC . 1103
SIXTH: (a) The Employer will use hired trucks only after his own available
trucks are working. When hiring other trucks, the Employer shall give pref-
erence to other Employers having contracts with the Union. If such equipment
is not available, then such vehicles that are hired by the Employer shall be
manned by members of the Union, if available.
SEVENTH: (e) If the Union should not have any members in good standing
available, the Employer may employ other persons who are not members of
the Union.
* * * * * * *
SEVENTH: (g) Upon notice from the Union that any employee who has
been employed for more than thirty (30) days has failed to tender the periodic
dues and initiation fees uniformly required as a condition of acquiring and
retaining membership, the Employer agrees to discharge such employee within
seven (7) days after the receipt of a written notice from a properly authorized
official of the Union.
The General Counsel takes the position that Section 7(e) of the contract is invalid
on its face because its "whole purport and tenor . .. is to grant preference in em-
ployment to members of Local 602." With regard to Sections 6(a) and 7(g) of
the contract, the General Counsel admits that such provisions are valid where the
contracting union is the statutory representative of the employees covered, but main-
tains that such provisions are illegal and violative of the Act where, as here, the
contracting union is not the employees' statutory bargaining agent.
The answer admits that the contract of May 30, 1958, between the Respondent
and Local 602 contains the provisions in question, but denies that such provisions
are violative of the Act.
2. Conclusions
Section 6(a) of the contract requires the Respondent, under certain circumstances,
to do business with other employers who have contracts with Local 602, or whose
employees are members of Local 602, in preference to those other employers who
do not have such contracts or whose employees are not members of that union. In
short, it requires discrimination in favor of those employers who have favorable
relations with Local 602 and against those employers who have not. But Section
8(a) (1), (2), and (3) of the Act was designed to prevent discrimination as between
different employees, not as between different employers. Hence I find nothing in
Section 6(a) of the contract which, standing alone, violates these provisions of the
Act.
Section 7(e) of the contract stands on a different footing. It obviously refers to
original hire. In permitting the Respondent to hire nonmembers only when Local
602 has no members available, it clearly requires the hire of members when available,
and thus discriminates against applicants who are not members. By including such
an illegal mandatory preference in the contract, the Respondent discriminated in
regard to hire, thereby encouraging membership in Local 602, in violation of Section
8(a)(3) of the Act. It further interfered with, restrained, and coerced the Re-
spondent's employees and applicants for employment, in violation of Section 8(a) (1)
of the Act. Also, it thereby rendered illegal aid and assistance to Local 602, in
violation of Section 8(a)(2) of the Act.
There remains for consideration Section 7(g) of the contract. This is the familiar
300-day union-shop clause. Admittedly the Respondent was free to contract for this
type of union security in favor of a union which was the employees' statutory repre-
sentative. The first proviso to Section 8(a)(3) permits such a clause to be included
in a contract under certain specified conditions, among which is that the contracting
union must be "the representative of the employees as provided in Section 9(a),
in the appropriate collective-bargaining unit covered by such agreement when made."
But on May 30, 1958, when the contract was entered into, Local 602 was not the
statutory agent of the Respondent's drivers, nor was a unit limited to the Respond-
ent's drivers alone appropriate for collective bargaining. Under these circumstances,
the clause in question exceeded the limited type of union security permitted under
Section 8(a)(3) of the Act. It is therefore found that the execution of a contract
containing such a clause violated Section 8(a)(1), (2), and (3) of the Act.
F. Events after May 30, 1958
At all material times, preference in job assignments has been accorded the Re-
spondent's drivers on the basis of seniority ranking. Thus, the drivers with higher
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ranking have preference in the choice between available runs . Moreover, in the
event of a layoff , the driver with the least seniority is the first to be laid off; and in
recalling laid off drivers the last driver laid off is the first to be called back . Prior to
May 30 , 1958 , seniority ranking among the Respondent 's drivers was based upon
date of hire,50 and a seniority list was posted periodically.
Kenneth Bedford was, at all material times, a member of Local 770. He was hired
by the Respondent as a driver on June 3, 1956 , and by reason thereof stood 19th
on the seniority list on May 30, 1958 . He was off duty that day but , as was his
custom , telephoned to Marcus at about noon to receive his assignment for the next
day. Marcus assigned him to a run he did not want . Bedford protested that, as
Local 770's steward for the Respondent's drivers, he was "entitled to the longest run
in the barn ." However, he was not assigned the longest run.
Bedford was on vacation from June 15 to 21 . On his return , about noon, he
telephoned to the Respondent 's garage and received his next day's assignment. He
then asked Marcus , over the telephone : "How come I got to run to the city?"
Marcus replied : "You have lost your seniority ." When Bedford asked why, Marcus
responded : "Because you are not a member of Local 602 . And ... they told me
to drop you to the bottom of the list."
On June 22, 1958 , Bedford was dropped from 19th place on the seniority list to
44th. Marcus explained this occurrence as follows : "Mr. Brenning came over . . .
and he told me that he was going to drop [Bedford] to the bottom of the list because
he was not a member--or he hadn 't signed an application .. . I said `Look, the
seniority roster is your business . You take care of it. Don't bother me with it.
Whatever you do with it is up to you. I have enough problems .' " Similarly,
Brenning testified:
Q. And would you tell us whether you, representing the Union [ Local 6021,
had anything to do with his [ Bedford 's] being taken out of No. 19 and put down
further on the list?
A. Yes. We set up a 602 seniority list. All members paying dues into 602
were on that seniority list according to their company seniority . If he wasn't on
that list, he must have been down below it.
Brenning also testified that a driver "would either have to be a member of the local
[Local 602] or he couldn 't carry seniority."
On July 8 or 10, 1958, Bedford asked Marcus how he could get his seniority back.
According to Bedford , Marcus replied : "You can get your seniority back by filling an
application out to become a member of 602"; Bedford retorted that he had no in-
tention of doing so "unless the whole industry went 602 "; and that this conversation
was substantially repeated about a month later. Marcus gave a somewhat different
version of the conversation of July 8 or 10, namely, that his response to Bedford's
inquiry was : "Go to the Union . That has nothing to do with me . . . I have no
control over that ." Under either version, I find that in the conversation Marcus
made clear to Bedford that the Respondent would not restore Bedford 's seniority to
19th place until Bedford made peace with Local 602.
At the time of the hearing, Bedford was still employed as a driver for the Re-
spondent ,51 still occupied 44th place on the seniority roster , and still refused to apply
for membership in, or pay dues to , Local 602.
G. The seniority system and the discrimination against Bedford
1. Contentions of the parties
The complaint alleges that "in or about June 1958, [the Respondent] and Local
602 entered into, and since that time, have maintained in effect an understanding,
which . . . delegates to Local 602 final and exclusive control over the seniority
ranking of [ the Respondent's] employees.... Determinations of employees sen-
iority ranking under said understanding are based upon membership of said
employees in Local 602." The complaint further alleges that "on or about June 22,
1958, the seniority ranking of Kenneth Bedford, was reduced ( 1) under the under-
GO Except that the union steward, presumably by virtue of section 6 of the 1955 con-
tract, was accorded the highest seniority ranking of all the Respondent 's drivers.
51 There is some evidence that, at an undisclosed time, Local 602 sent the Respondent
a demand that Bedford be discharged , but later withdrew it.
MARC,IIS TRUCKING COMPANY, INC . 1105
standing . . . set forth . . above and (2) by a determination made on the basis.
set: forth . . . above and (3 ) because Bedford continued to adhere to Local 770."
The answer denies "that Local 602 has final and exclusive control over seniority
ranking,"_ and alleges "that any arrangement for seniority ranking for its employees'
is made . pursuant to common practice , usage and understanding within the industry
and in connection with normal practice between an employer and a union; and
further alleges that in connection with determinations of employee seniority ranking,
it is merely complying with the terms of a valid and subsisting collective bargaining
agreement . . . between [the Respondent] and Local 602." The answer further
alleges "that the seniority ranking of Kenneth Bedford is established solely pursuant
to the collective bargaining agreement . . . between [ the Respondent] and Local
602," and denies "that a reduction in seniority ranking, if any, was made because of
any adherence or loyalty which Bedford may owe to Local 770 ." Finally, the answer
"challenges the.jurisdiction of the National Labor Relations Board to determine the
seniority of em loyees," and asserts "that the seniority ranking of Kenneth Bedford
is not one which can be the subject of a complaint by the National Labor Relations
Board." '
2. Conclusions
a. The discrimination against Bedford
At the outset, let us consider the Respondent 's contention that Bedford 's seniority
ranking cannot constitute the basis for a complaint to the Board 6s This loses sight
of the Board's function to order offending employers to stop ,infringing on the rights
of their employees , including the right to band together "for the purpose of col-
lective bargaining or other mutual aid or protection ." And the United States
Supreme Court has said on this subject: 68
In the absence of limiting factors, the above purposes , including "mutual aid or
protection and "other conditions of employment ," are broad enough to cover
terms of seniority.
I accordingly conclude that whether or not discrimination has been practiced in
determining the seniority ranking of employees is a proper subject for the Board to
inquire into and decide . Indeed , the Board has frequently done 90.54
Turning now to consideration of the merits of this aspects of the case, the record
leaves no doubt , and I find, that on and after June 21 , 1958, the Respondent reduced
Bedford's seniority standing because he had not applied for membership in, or paid
dues to, Local 602.9 But the Respondent 's able counsel calls attention to Section
7(g) of the contract of May 30, 1958 , between it and Local 602, "which required
him to become a member of Local 602 after a period of time ," and the fact that
Bedford had never done so. Therefore, the argument proceeds , the Respondent
"acted very reasonably towards him" when it merely reduced his seniority , in lieu
of discharging him altogether. I find no merit in this contention . In the first place,
when Bedford's seniority was reduced, the contract had not yet been in effect the
requisite 30 days and therefore, even if the contract clause in question was valid,
Bedford was not yet subject to discharge . In the second place, assuming the validity
of the contract and the expiration of the 30 -day period , the fact that the Respondent
might'tben have discharged Bedford with impunity did not give it the right to dis-
criminate against him in any manner other than discharges And finally, it has
been found above that the contract of May 30 , 1958 , between the Respondent and
Local'607,-especially the particular section now relied upon-was illegal and without
force , or effect.; The Respondent therefore cannot rely thereon as a defense to its
conduct.
m Ins6iiLr as the answer contests the Board's "jurisdiction to determine Bedford's seniority
ranking, that subject will be dealt with hereafter, under the heading "The Remedy."
5' Ford Motor Co: v. Sunman, et el ., 845 U.S. 880, 837.
"+ E.g., Minneapolis star and Tribune Company, 109 NLRB 727.
55 I need not, and do not, determine whether or not an additional reason was because
of Bedford's; adherenee.to Local 770.
N.L.R.13: v. Gaynor News Company, Inc., 197 F. 2d 719, 728 (C.A. 2), ON. 847
U.S. 17; and Krambo Food stores, Incorporated, 106 NLRB 870, 877-879.
564461-60--vol. 126-=71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, it is found that, by its illegal discrimination against Bed-
ford, the Respondent encouraged membership in Local 602, in violation of Section
8 (a) (3) of the Act. It likewise interfered with, restrained, and coerced the Re-
spondent's employees, in violation of Section 8(a) (1) of the Act. Further, it thereby
rendered illegal aid and assistance to Local 602, in violation of Section 8(a) (2) of
the Act.
b. Local 602's control of the seniority system
The record amply supports the General Counsel's claim that since June 1958,
the Respondent has surrendered to Local 602 complete and absolute control over
the seniority ranking of all the Respondent's drivers. That the Respondent in effect
washed its hands of any voice in seniority-indeed displayed a reluctance to even
discuss the matter-is clearly demonstrated by Marcus' testimony. Thus, although
the June conversation between Marcus and Brenning originated with mention of a
specific seniority grievance (that of Bedford), it immediately developed into blanket
authority to Local 602 to exercise unilateral control over the entire seniority system.
This is shown by Marcus' statement to Brenning that "the seniority roster is your
business. You take care of it. . . . Whatever you do with it is up to you." Such
a delegation by an employer to a union of unfettered authority over seniority has
been condemned by the Board and the courts as violative of Section 8(a)(1), (2),
and (3) of the Act.57 I conclude that, since June 1958, the Respondent has violated
these provisions of the Act by entering into and maintaining in effect an under-
standing or agreement with Local 602 whereby Local 602 was accorded unlimited
unilateral control over the seniority ranking of all the Respondent's drivers.
H. Disposition of the Respondent's requests
There remain for consideration 10 numbered requests for findings included in the
Respondent's brief. Request No. 6 is that the complaint, insofar as it alleges that in
January 1958, the Respondent unilaterally changed wage rates for overtime, and
bargained individually with its employees, "be dismissed on the ground that any
action thereon is barred by reason of the running of the six-month period of the
statute of limitations." For reasons set forth above, the request for this finding is
granted.
Requests Nos. 1, 2, 4, 5, 8, and 10 relate to matters discussed at length above. For
reasons already set forth herein, these requests are denied.
Request No. 3 is that it be found that, on or before May 30, 1958, a majority of
the Respondent's employees "requested representation by Local 602." Request No.
7 is for a finding that the Respondent "did not directly or indirectly make a collective
bargaining agreement with Local 770 in or about August 20, 1957." Request No. 9
is for a finding that "no action of any sort or description was taken by [the
Respondent] against Kenneth Bedford by reason of Bedford's adherence to Local
770." The requests for these findings are denied, on the ground that such findings
are deemed immaterial and unnecessary to the determination of any issue herein, as
more fully explained above.
THE REMEDY
It has been found that, by various actions on and after May 30, 1958, the
Respondent rendered illegal aid and assistance to Local 602. It will accordingly be
recommended that the Respondent cease and desist from such conduct. It will fur-
ther be recommended that the Respondent cease and desist from performing or
giving effect to its contract of May 30, 1958, with Local 602, or to any modification,
extension, supplement, or renewal thereof, and from recognizing Local 602, or
any successor thereto, as the bargaining representative of any of its employees
in the unit described herein, unless and until Local 602 demonstrates its majority
status in a Board-conducted election.58
It has also been found that the Respondent included in its contract of May 30,
1958, with Local 602, the illegal hiring preference and illegal union-security clauses
57 Pacific Intermountain Express Company, 107 NLRB 837, enfg. as mod sub nom.
N.L.R B. v International Brotherhood of Teamsters, etc., 225 F. 2d 343 (C.A. 8) ; and
Northeast Texas Motor Lines, 109 NLRB 1147, enfd. sub nom. N.L R B.. v. Dallas General
Drivers, etc, Local 745, et at ., AFL, 228 F 2d 702 (C.A 5).
58 Bowman Transportation, Inc., 120 NLRB 1147.
1
MARCUS TRUCKING COMPANY, INC. 1107
described above. It will accordingly be recommended that the Respondent cease
and desist from entering into any contract , agreement , understanding, or arrangement
which accords preference in hiring or tenure of employment to members of Local
602, or of any other union, except as permitted by Section 8(a)(3) of the Act.
It has also been found that on and after May 30, 1958, the Respondent withdrew
and withheld recognition from Local 770 as the bargaining agent of its employees
in the unit described herein, and unilaterally changed their wages without prior
notice to or consultation with Local 770. It will accordingly be recommended that
the Respondent cease and desist from such practices and, upon request , bargain
collectively with Local 770 as the exclusive representative of the Respondent's
employees in the appropriate unit with respect to wages, hours , and other conditions
of employment. Nothing contained herein shall , however, be deemed to prohibit
the Respondent from withdrawing from the present multiemployer unit , at an appro-
priate time and in a proper and unequivocal manner, providing that if it does so, it
shall thereafter bargain in the less comprehensive single-employer unit found
appropriate by the Board in Case No. 2-RC-7956.
It has further been found that the Respondent discriminatorily reduced the
seniority standing of Kenneth Bedford because he refused to apply for membership
in, or pay dues to, Local 602. It will therefore be recommended that the Respond-
ent refrain from discriminating against or visiting reprisals upon any of its employees
because they fail or refuse to pay dues to or apply for membership in any labor
organization.
Because of the underlying purpose and tendency of this unlawful conduct, it is
concluded that there exists danger that the Respondent will in the future commit
other unfair labor practices . Accordingly, it will be recommended that the Re-
spondent cease and desist, not only from the unfair labor practices found, but also
from in any other manner infringing upon the rights guaranteed in Section 7
of the Act.
Affirmatively, it will be recommended that the Respondent withdraw and withhold
all recognition from Local 602 as the representative of its employees in the above-
described unit for the purposes of collective bargaining , unless and until Local 602
demonstrates its majority status in a Board-conducted election. It will further be
recommended that the Respondent restore the overtime pay illegally eliminated on
May 30, 1958, and make its employees in the above -described unit whole for any
loss of earnings they may have suffered by reason of this elimination , by paying
to each of them a sum of money equal to the amount he normally would have earned
as overtime pay from May 30, 1958, to the date when overtime pay is fully restored.
During the hearing, the General Counsel amended the complaint to allege that
at all times since May 29, 1958, the Respondent , by reason of its unfair labor
practices , "has required its employees to pay fees , dues, assessments , and other
monies to Local 602 as a condition of employment and retention of employment . .
and . . is therefore liable for the reimbursement of such fees, dues , assessments,
and other monies to its employees ." Thus, the General Counsel seeks the familiar
Brown-Olds remedy.59 The Respondent filed an answer to the amendment which
denies these allegations and affirmatively alleges that "all dues and other monies
received by it from its employees , payable to Local 602 were received by it with
the express consent and permission of the employees concerned and were turned
over to Local 602 with such express consent and permission of the employees con-
cerned." The facts are that the Respondent prior to May 30, 1958, checked off
dues of its drivers to Local 770, but after that date checked off and paid to Local
602 the dues of those of its drivers who authorized it to do so. There is no
showing that the amount of dues checked off to Local 602 for any individual
employee differed from the amount previously checked off to Local 770 for the
same individual or that the dues of any individual employee were simultaneously
checked off to both locals. In short , it has not been shown that any employee is
out of pocket or has suffered any monetary loss by having his dues checked off to
Local 602 rather than to Local 770, as previously. Under the particular circum-
stances here present, it appears that the requested remedy would not effectuate the
purposes of the Act, and the General Counsel 's request for a Brown-Olds remedy
• CO United Association of 'Journeymen & Apprentices of Plumbing & Pipe fitting Industry
of the United States and Canada , Local 231 , AFL-CIO ( J. S. Brown -E. F. Olds Plumbing
& Heating Corporation), 115 NLRB 594.
r
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is therefore denied. However, the Respondent's unfair labor practices have resulted
in a loss of revenue to Local 770, the employees' statutory bargaining agent, thereby
substantially undermining its strength and its ability properly to carry out its
statutory function of representing the employees. In order to restore the status
quo existing before the commission of the unfair labor practices and to effectuate
the policies of the Act, it becomes necessary to restore the statutory bargaining
representative to the full vigor it would have otherwise enjoyed. It will therefore be
recommended that the Respondent restore the checkoff of drivers' dues to Local
770 and reimburse Local 770 for any loss it may have sustained by reason of the
Respondent's illegal withdrawal of recognition, by paying to Local 770 a sum of
money equal to all the dues and initiation fees which the Respondent, absent its
unfair labor practices, would normally have checked off to Local 770 on behalf of
its employees in the above-described unit from May 30, 1958, to the date of
restoration of checkoff to Local 770. Although this is a novel remedy, the Board's
remedial powers are flexible, and should be tailored to fit the particular circum-
stances of the case. And lack of precedent should not be confused with lack of
power.so
It has also been found that the Respondent illegally reduced Bedford's seniority
ranking from 19th to 44th place. The General Counsel and Local 770 request that
he be restored to 19th place on the roster 61 The Respondent, on the contrary,
maintains that the Board lacks jurisdiction to decide an employee's seniority stand-
ing. Without ruling on the extent of the Board's power to do so, in my opinion
it would be unwise for the Board to make such a determination, especially in the
absence of other employees on the list who might be affected. Accordingly, the
request of the General Counsel and Local 770 in this regard is denied. However,
it will be recommended that the Respondent restore Bedford to that place on the
seniority list to which he is rightfully entitled in accordance with the date of his
hire, or other relevant nondiscriminatory factors, eliminating from consideration
his union membership, sympathies, or activities.62 It will also be recommended
that the Respondent make him whole for any loss of earnings he may have suffered
because of the discrimination against him, by paying to him a sum of money equal
to the amount he normally would have earned from June 21, 1958, the date of the
discrimination against him, to the date he is restored to his proper seniority standing,
less his net earnings during the said period. The backpay provided for herein shall
be computed on a quarterly basis in the manner established by the Board; earnings
in one particular quarter shall have no effect on the backpay liability for any other
period.63
It will further be recommended that the Respondent make available to the Board
or its agents, upon request, all records necessary to compute the amount of backpay
and dues checkoff due under the terms of this recommended order, and post
appropriate notices.
Finally, it will be recommended that the complaint herein be dismissed, insofar
as it alleges that the Respondent violated the Act in January 1958, by unilaterally
changing the wage rates of its employees or bargaining individually with them,
or violated the Act by entering into a contract containing a requirement that it
discriminate in doing business with other employers.
Upon the basis of the above findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Marcus Trucking Company, Inc., is, and at all material times has been, an
employer within the meaning of Section 2(2) of the Act.
00 Coates iE Clark, Inc. (Clarkdale Plant), 113 NLRB 237, 239, enfg. as mod 241 F 2d
556 (C A. 5).
ei Although Bedford is Local 770's shop steward for the Respondent's drivers, and
section 6 of the contract of February 3, 1958, between the Association and Local 770
accords the shop steward "top ranking on the seniority list," neither the General
Counsel nor Local 770 requests that Bedford be placed In the number one slot. Accord-
ingly, it is unnecessary to rule upon the validity of section 6 of the contract.
63 Compare the remedy accorded in Minneapolis Star and Tribune Company, 109
NLRB 727, 730
03F W. Woolworth Company, 90 NLRB 289.
MARCUS TRUCKING COMPANY, INC. 1109
2. Dairy Transportation Drivers, Helpers & Terminal Employees, Local 770,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, and Local 602, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are, and at all material times have been,
labor organizations within the meaning of Section 2(5) of the Act.
3. All tankdrivers employed by the Respondent and other members of Dairy
Transport Association, Inc., who have not effectively withdrawn from multiemployer
bargaining, excluding mechanics and garage employees, office clerical employees,
professional employees, watchmen, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Dairy Transportation Drivers, Helpers & Terminal Employees, Local 770,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, was on May 30, 1958, and at all times since has been, the exclusive
representative of the employees in the above-described unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
5. By recognizing Local 602, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as bargaining agent for employees in the
above-described unit at a time when another labor organization was their statutory
bargaining representative, by including in a collective-bargaining contract with the
said labor organization a clause providing for an illegal mandatory hiring preference
in favor of the said labor organization and a union-shop clause in favor of said
organization not sanctioned by Section 8(a) (3) of the Act, by discriminating against
employee Kenneth Bedford because he failed to apply for membership in, or pay
dues to, the said labor organization, and by delegating to the said labor organiza-
tion absolute unilateral control over the seniority ranking of its employees, thereby
contributing illegal assistance and support to the said labor organization, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (2) of the Act.
6. By entering into a collective-bargaining contract with the above-named labor
organization providing for an illegal mandatory hiring preference based on member-
ship in the above-named labor organization and a union-shop clause in its favor not
sanctioned by Section 8(a)(3) of the Act, by discriminating in regard to the tenure
of employment and terms and conditions of employment of Kenneth Bedford,
and by establishing and maintaining in force an agreement or understanding
whereby it delegated to the said labor organization absolute unilateral control over
the seniority ranking of its employees, thereby encouraging membership in the
said labor organization, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (3) of the Act.
7 By withdrawing and withholding from Dairy Transportation Drivers, Helpers
& Terminal Employees, Local 770, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, recognition as the statutory bar-
gaining agent of the employees in the above-described unit, and by unilaterally
changing the terms and conditions of employment of employees in the above-
described unit without prior notice to or consultation with the said labor organiza-
tion, thereby failing and refusing on March 30, 1958, and at all times since, to bargain
collectively with the said labor organization as the exclusive representative of the
employees in the above-described unit, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a) (5) of the Act
8. By the above-described conduct, thereby interfering with, restraining, and
coercing its employees and applicants for employment in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
9. The above-described unfair labor practices tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce, and constitute unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
10. The Respondent did not violate the Act in January 1958 by unilaterally
changing the wage rates of its employees or bargaining individually with them, nor
did it violate the Act by entering into a contract containing a requirement that it
discriminate in doing business with other employers.
[Recommendations omitted from publication.]