Meenan Oil Co., Inc.

National Labor Relations Board - Board Decisions

Aug 19, 1958

121 N.L.R.B. 580 (N.L.R.B. 1958)

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poly precludes the inclusion of a group of employees, who have
previously enjoyed separate representation, into a broader unit with-
out first ascertaining their desires, especially where, as here, the past
bargaining agent desires to continue to represent them in a separate
unit,f which, in view of the bargaining history, may also be appro-
priate. Accordingly, we shall direct a separate election among em-
ployees in the following voting group 5
All yard employees at the Employer's Fresno, California, operation
including fork lift operators, and lumber handlers, but excluding
direct sales employees, office clerical employees, truckdrivers currently
represented by the Petitioner, the assistant yard superintendent,' the
yard superintendent and other supervisors as defined in the Act
5 If a majority of employees in the voting group vote for the
Petitioner they will be taken to have indicated their desire to be
represented as a part of the unit currently represented by the Peti-
tioner and the Regional Director will issue a certification of results of
election to that effect The Petitioner may then bargain for them as
a part of that unit If, however, a majority vote for the Intervenor,
they will be taken to have indicated their desire to, be represented as
a separate unit and Regional Director will issue a certification of
representatives to that effect
[Text of Direction of Election omitted from publication ]
4 Long Electric Sign Co , et at, 109 NLRB 770
5It does not appear that the Petitioner desires a separate election among the truck-
drivers which it currently represents
a The Intervenor seeks to include the assistant yard superintendent in the voting group,
while the Employer would exclude him as a supervisor The Petitioner takes no position
in the matter As the record indicates that the assistant yard superintendent has not
been represented by the Intervenor as a part of its established unit of yard employees, it
is contrary to Board policy to include him in the unit without first ascertaining his
desires Memphis Cotton Oil Mall, 115 NLRB 515, 517 518 However, since the
Intervenor as the only union seeking to represent the assistant yard superintendent has
made no showing of interest with respect to him, a self determination election would in
his case, be inappropriate , even were we to find him an employee and not a supervisor,
an issue we need not now resolve See Swift i Company Refinery, 117 NLRB 945 and
The Enterprise Co, 106 NLRB 779 In view of the foregoing , we have excluded the
assistant yard superintendent from the voting group and are not directing a separate
election as to him
Meenan Oil Co, Inc. and Walter J. Wolny and Local 553, Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , Party to the Contract
Local 553, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Walter J. Wolny
and Meenan Oil Co ., Inc., Party to the Contract . Cases Nos.
2-CA-5189, 9--CA-5376, 2-CB 1870, and 2-CB-1960 August 19,
1958
DECISION AND ORDER
On February 17, 1958, Trial Examiner Alba B Martin issued his
Intermediate Report in the above -entitled proceeding , finding that
121 NLRB No 71
MEENAN OIL CO., INC. 581
the Respondents had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate-LReport attached hereto. Thereafter, Respond-
ents filed exceptions to the Intermediate Report and supporting briefs.
The Board' has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs, and the entire record in the case, and here-
by adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following modifications.
The remedial action recommended by the Trial Examiner would
require the Respondents jointly and severally to restore Wolny to
his rightful position on the seniority roster. Having found unlaw-
ful the provision in the contract respecting Respondent Local's au-
thority in the making of the seniority roster, we shall not order any
further participation by the Respondent Local in this regard except
to require the Respondent Local to notify both the Respondent Mee-
han and Wolny that it has no objection to Wolny's restoration to, a
position on the drivers' seniority roster at the Hicksville plant just
ahead of the number given Fred James on that roster on October
15, 1956, and the granting to Wolny of all rights pertaining to that
position. We shall order Respondent Meenan to make such restora-
tion and grant. We shall also order that the Respondents shall
jointly and severally make Wolny whole for any loss of pay he may
have suffered by reason of the discrimination against him in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that:
A. The Respondent, Meenan Oil Co., Inc., Hicksville, Long Island,
New York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from : -
(a) Performing or giving effect to any provisions in a contract
with Respondent Local which delegate to Respondent Local final con-
trol over the seniority status of Meenan's employees.
(b) Acquiescing in Respondent Local's unilateral and discrimina-
tory exclusion of Walter J. Wolny from the seniority roster, thereby
implementing an unlawful seniority agreement.
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Leedom and Members Rodgers and Jenkins].
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed by
Section 7 of the Act, except to the extent permitted by Section 8
(a) (3) of the Act.
(2) Take the following affirmative action which the Board 'finds
will effectuate the policies of the Act :
(a) Restore Walter J. Wolny to a position on' the drivers' seniority
roster at the Hicksville plant just ahead of the number given Fred
James on that roster on October 15, 1956, and grant him all rights
pertaining to that position on the roster.
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay due
and the rights of employment under the terms of this Order.
(c) Post at its plant at Hicksville, Long Island, copies of the at-
tached notice marked "Appendix A." 2 Copies of the notice, to be
furnished by the Regional Director for the Second Region (New York,
New York), shall be posted by Respondent Meenan immediately upon
their receipt, after being duly signed by an official representative of
the Company. When posted, they shall remain posted for sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to drivers are customarily posted, and specifically in-
cluding the bulletin board over the time clock in "the tower." Reason-
able steps shall be taken by Respondent Meenan to insure that these
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
B. Local 553, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers, representatives,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Performing or giving effect to any provisions in a contract with
Respondent Meenan which delegate to Respondent Local final control
over the seniority status of Meenan's employees.
(b) Causing or attempting to cause Respondent Meenan to dis-
criminate against Walter J. Wolny in violation of Section 8 (a) (3)
of the Act.
(c) In any like or related manner interfering with, restraining, or
coercing the employees of Meenan Oil Co., Inc., in the exercise of the
2 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."
MEENAN OIL CO., INC. 583
rights guaranteed by Section 7 of the Act, except to the extent per-
mitted by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify Respondent Meenan, in writing, that it has no objection
to the restoration of Walter J. Wolny to a position on the drivers'
seniority roster at the Hicksville plant just ahead of the number given
Fred James on that roster on October 15, 1956, and the granting to
him of all rights pertaining to that position on the roster, and requests
that it take such action.
(b) Notify Walter J. Wolny, in writing, that it has advised Re-
spondent Meenan that it has no objection to his restoration to a
position on the drivers' seniority roster at the Hicksville plant just
ahead of the number given Fred James on that roster on October 15,
1956, and the granting to him of all rights pertaining to that position
on the roster, and requests it to take such action.
(c) Post at its business offices and meeting halls in New York, New
York, and in Hicksville, Long Island, copies of the attached notice
marked "Appendix B." 3 Copies of the notice, to be furnished by
the Regional Director for the Second Region (New York, New York),
shall be posted by the Respondent Local immediately upon their re-
ceipt, after being duly signed by an official representative of the Union.
When posted, they shall be maintained by it for a period of sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by said Local to insure that these notices are not altered,
defaced, or covered by any other material.
(d) Mail copies of the said notice to the Regional Director for the
Second Region, for posting at Respondent Meenan's Hicksville plant,
in places where notices to drivers are customarily posted, and specifi-
cally including the drivers' room under the dispatcher's office. Copies
of the notice to be furnished by the Regional Director for the Second
Region shall be returned to the Regional Director after they have
been signed by an official representative of the Local, for such posting.
(e) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
C. The Respondents, Meenan and Local 553, their officers, repre-
sentatives, agents, successors, and assigns, shall jointly and severally,
and in the manner set forth in the section of the Intermediate Report
entitled "The Remedy," make whole Walter J. Wolny for any loss of
pay he may have suffered because of the discrimination against him.
8 See footnote 2, supra. _
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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, we hereby notify our employees that :
WE WILL NOT perform or give effect to any provisions in any
contract we may have with Local 553, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, which delegated final control over the seniority status
of our employees to said Local 553.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights guaran-
teed in Section 7 of the Act, except to the extent permitted by
Section 8 (a) (3) of the Act.
WE WILL make Walter J. Wolny whole for any loss of pay hea
may have suffered by reason of the discrimination against him,
and will restore him to a position on the drivers' seniority roster
just ahead of the number given Fred James on that roster on
October 15, 1956, and grant him all rights pertaining to that
position on the roster.
MEENAN OIL CO., 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.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 553, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, AND TO ALL EMPLOYEES OF MEENAN OIL CO., INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WIL NOT perform or give effect to any provisions in any
contract we may have with Meenan Oil Co., Inc., which dele-
gates to us final control over the seniority status of Meenan's
employees.
WE WILL NOT in any like or related manner restrain or coerce
employees of Meenan Oil Co., Inc., in the exercise of the rights
MEENAN OIL CO., INC. 585
guaranteed in Section l of the Act, except to the extent permitted
by Section 8 (a) (3) of the Act.
WE WILL make Walter J. Wolny whole for any loss of pay
he may have suffered by reason of the discrimination against
him.
WE WILL notify the Meenan Oil Co., Inc., in writing, and
furnish a copy to Walter J. Wolny, that we have no objection
to his restoration of a position on the drivers' seniority roster
just ahead of the number given Fred James on that roster on
October 15, 1956, and the granting to him of all rights pertain-
ing to that position on the roster, and request that it take such
action.
LOCAL 553, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative )' ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed against the Company and the Union by Walter J. Wolny, an
individual , the General Counsel of the National Labor Relations Board , herein called
the General Counsel and the Board , by the Regional Director for the Second Region
(New York, New York), issued his complaint dated July 31, 1957, against Meenan
Oil Co., Inc. (herein called Meenan , the Company, and Respondent Company) and
Local 553 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America 1 ( herein called the Union and the Local) alleging that Respond-
ents had engaged in and were engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) (2 ) and (3 ), Section 8 (b) (1) (A) and
(2), and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat . 136, herein called the Act. Copies of the charges and the complaint to-
gether with an order consolidating the cases, a notice of hearing, and two orders
rescheduling the hearing were duly served upon the parties.
With respect to the unfair labor practices , the complaint alleged in substance that
at all times since about June 1956 , the Company and the Union have been parties to
and have maintained and given effect to a collective -bargaining agreement which
among other things delegates control over the seniority of the Company's employees
to the Union; and that pursuant to this agreement and because his name had been
eliminated from the seniority roster because he refused to pay the Union a fine it
had levied against him , at all times after October 15, 1956, the Company dropped
one Walter J. Wolny from its seniority list and failed and refused to employ him.
In their answers the Respondents denied the commission of any unfair labor practices.
Pursuant to notice , a hearing was held October 10, 1957, in New York, New York,
before Alba B. Martin , the Trial Examiner duly designated by the Chief Trial
Examiner . All parties were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses , and to intro-
duce evidence bearing on the issues was afforded all parties . Decision was reserved
i The Board having been notified by the AFL-CIO that it deems the Teamsters' cer-
tificate of affiliation revoked by convention action, the identification of this Union is
hereby amended.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon the motions of the Union and the Company, made at the conclusion of the
hearing, to dismiss the complaint. These motions are hereby disposed of in accord-
ance with the conclusions and findings herein. The General Counsel and the Union
made short oral summations. After the hearing the General Counsel filed a mem-
orandum, and the Company and the Union filed briefs and followup letters, all of
which have been carefully considered. Motions to make certain corrections in the
transcript of the hearing were received from the General Counsel and the Company.
These motions are hereby granted and have been placed in the exhibit file, the
General Counsel's motion as General Counsel's Exhibit No. 9, the ,Company's
motion as Company's Exhibit No. 1.
Upon the entire record in the case, and from my observation of the demeanor of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent Meenan Oil Co., Inc., a New York corporation having principal and
branch offices and places of business at several locations in and around New York,
New York, and at Tullytown, Pennsylvania, including a plant at Duffy Avenue,
Hicksville, Long Island, the only plant herein involved, is engaged in the business of
selling fuel oil at wholesale and retail, together with the installation and service of oil
burners. During the year prior to the issuance of the complaint, Respondent Com-
pany caused to be purchased, transferred, and delivered to its New York State places
of business fuel oil and other goods and materials valued in excess of $1,000,000,
all of which were transported to New York in interstate commerce directly from
States other than New York State. It is held that Respondent Company is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the meaning of Section 2 (5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The contract
On June 5, 1956, Respondent Company and Respondent Union entered into a
collective-bargaining contract, effective from February 1, 1956, until January 31,
1958. This contract contained a lawful union-shop clause, and in section 10 pro-
vided, in pertinent part, as follows:
Dealers with more than one depot will establish a seniority list for each classifica-
tion in each depot. It is understood and agreed, however, that men formerly
employed in a depot either temporarily or permanently closed, must be placed
at the end of other single steady list.
During the slack season, April 15 to October 15, any employee who according to
seniority would not have steady employment shall be entitled to a leave of
absence and maintain his full seniority rights during that period. Any man so
described must report to the Shop Steward not later than 8 a. m. on October
15 and sign the seniority roster in order to protect his seniority, and the Em-
ployer agrees to accept the certification of said Shop Steward as to availability
of such men when called by the Employer. . . Any man failing to report as
above specified shall forfeit all seniority rights.
The contract contained a compulsory arbitration clause covering any difference or
dispute regarding the meaning, interpretation, or application of any of the provisions
of the agreement, the decision of the arbitrator to be binding upon both parties.
Although the Respondents had had prior contractual relations with one another,
this was the first contract which contained the clause requiring employees who were
not working during the slack summer months to sign a "seniority roster" before 8
a. in. on October 15-and October 15, 1956, was the first occasion when such em-
ployees appeared and signed.
Of crucial significance on the question as to whether this contractual clause un-
lawfully vested control over seniority in the Union, is the fact that the clause vested
more than a ministerial function in the shop steward. The Employer, Meenan,
agreed to accept the certification of the shop steward as to the availability of certain
men. This language imposed acceptance by the Employer in the event of contro-
MEENAN OIL CO., INC. 587
versy over the shop steward's certification as well as in the absence of controversy
over it. The certification of the shop steward was to relate to the availability of
"such men ." Who were the "such men"? They were the "so described" men who
reported to the shop steward not later than 8 a. in. on October 15 and signed the
seniority roster. The "so described" men were employees who accofding to seniority
would not have had steady employment between April 15 and October 15 and so
were entitled to a leave of absence . Thus the contract left it to the shop steward
to decide, in the event of any controversy, (1) which men were employees; (2) the
meaning of "steady employment"; (3) which employees would not have had steady
employment during the stated period; (4) what constituted "reporting to" the shop
steward; (5) whether the men "reported to" the shop steward not later than 8 a. m.
on October 15; (6) what constituted the "seniority roster"; (7) whether the men
signed the "seniority roster"-and regardless of how the shop steward interpreted
and decided these questions , the Employer was bound to accept his certification
based upon the shop steward' s decisions . As will be seen below, the Wolny case
involved the Company's acceptance of the Union' s unilateral determination of a
number of these matters. From these considerations it follows that the contract
gave the Union control over whether a given man was to be certified as available
for work and therefore control over whether he should be allowed to work. The
inclusion of the arbitration clause did not convert the above questions to bargainable
issues because the Employer agreed to accept the certification of the shop steward-
not merely to bargain with the Union about some placement on the seniority list.2
The inclusion of the phrase, "Any man failing to report 'as above specified shall
forfeit all seniority rights" did not, and did not purport to, subtract from the discretion
and therefore power conferred upon the shop steward by the language above it in
section 10, and did not purport to be an all-inclusive and delimiting statement as
to how seniority rights could be lost. Although in its brief the Union contended
that this phrase "plainly declares that the loss of seniority shall only apply to those
who fail `to report as above specified,' " in the interpretation and performance of
the contract (as will be seen below) both the Company and Union considered
seniority rights as much lost by failure to sign as by failure to report.
Upon the above facts and considerations, and upon the entire record, I hold that
the contract in effect between February 1, 1956, and January 31, 1958, delegated
final control over seniority of the Company's employees to the Union. At all times
since June 20, 1956 (the date 6 months prior to the filing and serving of the original
charges herein) by maintaining and enforcing this contract, Respondent Company
violated Section 8 (a) (3) (2) and (1) and Respondent Union violated Section
8 (b) (1) (A) and (2) of the Act. Pacific Intermountain Express Co., 107 NLRB
837, enfd as modified, 225 F. 2d 343 (C. A. 8); Dallas General Drivers, 109 NLRB
1147, enfd. as modified, 228 F. 2d (C. A. 5); Kenosha Auto Transport Corporation,
-113 NLRB 643; Interstate Motor Freight System, 116 NLRB 755; cf. Theo. Hamm
Brewing Co., et al., supra.
B. The administration of section 10 of the contract and the Wolny matter
The actions of the parties in the administration of section 10 of the contract con-
firms that the control of seniority thereunder was in the Union, and that all the
Company did was acquiesce in the decisions made by the Union.
1. On October 15, 1956, the first occasion when this section was being interpreted
by the actions of the parties, the Union interpreted the clause to mean that the shop
steward should prepare a list of employees and that that list then became the
"seniority roster" referred to in the contract. When Superintendent Slater came in
he had no discussion with Shop Steward Johnson, who had prepared a list which
some employees had signed, as to whether Johnson's list should be controlling.
Rather, he assumed without discussion, that Johnson's list was the "seniority roster"
referred to in the contract. Slater's testimony confirmed that this was his under-
standing of the contract. Asked what the men were signing when they signed the
Johnson list, Superintendent Slater replied,
They were signing the seniority list which they must sign no later than 8 o'clock
on the 15th of October to protect their own seniority. . . .
Asked if he was saying that in order to protect their seniority with the Company
the employees had to sign a list in front of the steward or for the steward, Slater
replied,
Well, that's what it says here . That's the same thing that I said , sign it in
front of the shop steward. That's right.
2 Cf. Theo. Hamm Brewing Co., et al., 115 NLRB 1157, 1159, 1162-64.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Earlier Slater had been asked if he had had "any conversation with Johnson in
regard to the making up of a seniority list in October of 1956?" Slater had replied,
Well, according to Section 10, it's an automatic issue as far as I am concerned.
The men have to report to Johnson, only. Not to me.
That morning a number of the employees had signed a white paper posted on
the company bulletin board above the time clock, entitled something like, "Drivers
sign here." On the same bulletin board, probably later that day, Slater testified
that after checking it he posted as the seniority list a typed copy of the list Johnson
gave him. Although Slater was not questioned about seeing this white paper, or
its meaning to him , at that time he must have seen the white paper bearing a number
of signatures. If he did see it-and it bore the signature of Wolny-the record
contains no evidence that it raised any doubt in his mind concerning Johnson's list
being the "seniority roster ," or any additional questions concerning the omission
of Wolny's name from Johnson's list.
2. Concerning Johnson's list, Slater testified that " ... when I didn't see Wolny's
name on there, I asked him (Johnson) why. And he told me he didn't sign it,
and according to the contract, he was supposed to sign it at 8 o'clock." . as
Wolny didn't sign the list, he wasn't on the list at all." "He said he didn't sign it
at all. So, according to the contract, you don't sign a list, you are not on the
seniority list." It thus appears that Slater accepted, without probing further, John-
son's stated reason why Wolny's name was not on the list. It thus appears that
that reason was that Wolny 's name was not on the list because he had not signed
the list . An examination of Johnson 's list, which Johnson showed to Slater, would
have revealed that there were printed on the list a number of names, including
George Conklin's, without signatures opposite them, that Johnson's reason could
not have been an acceptable or accurate reason, and that there must have been
some other reason why Johnson did not even print Wolny 's name on his list. But
Slater did not probe further.
Johnson testified in substance that he based his printed list (on yellow paper) on
the previous seniority list, but that the only names he printed on his yellow
list without the men reporting to him, were the employees then working regularly;
and that he printed the names of the leave-of-absence men only as they reported
to him that morning and signed his list. An examination of his yellow list-Gen-
eral Counsel's Exhibit No. 4-shows that this was patently untrue-as Slater would
have discovered had he looked more closely into the matter. Thus, in the drivers'
column, Johnson printed the names of 13 drivers not then working. Of these,
only 3 signed. Six names were crossed out, the testimony being that he crossed out
the name of Rivoire when he was reminded that Rivoire had quit in the spring, and
that he crossed out George Conklin' s name because he did not report prior to 8
o'clock. In the-helpers' column, Johnson printed the names of 7 helpers not work-
ing, of whom only 4 signed and 3 were crossed out. I conclude on this evidence
that Johnson printed the names on his yellow paper irrespective of whether the
men reported to him prior to 8 o'clock, and that there was no connection between
the omission of Wolny's name from the yellow list and Wolny's failure to "report"
to Johnson.
The only other question than Wolny which Slater raised respecting Johnson's
list was why George Conklin's name was "out of whack." Before Conklin came
in Johnson printed his name on Johnson's list just under Jankowski, number 8.
Later he crossed out Conklin's name and gave James number 9 position and Sey-
ford number 10 position, even though Conklin-to the knowledge of both John-
son and Slater-had always been ahead of James and Seyford on the seniority
list. (To Slater's knowledge, Wolny also had been ahead of James and Seyford
when Wolny had previously worked for Meenan). In substance Johnson replied
that James and Seyford had come in and signed before 8 o'clock, and Conklin
had not come in until after 8 o'clock. Slater accepted Johnson's statement that
James and Seyford had signed before 8 o'clock. He had previously learned from
Conklin that Conklin had come in after 8 o 'clock.
At the hearing I rejected the General Counsel's offer of General Counsel's Ex-
hibit No. 5 in evidence. Study of the entire record reveals that this document is
relevant to the issues and should have been received. At this time I therefore
reverse my previous ruling and hereby receive in evidence General Counsel's Ex-
hibit No. 5. This document is a copy of the seniority list as of December 1, 1956.
Testimony revealed that it was the first list made after the list of October 15,
1956, based on the Johnson list. On October 15, Johnson had shown Slater his
original yellow list, discussed above, and had handed Slater a clean list showing
the seniority standings as on Johnson's yellow list as revised-which clean list Slater
MEENAN OIL CO., INC. 589
accepted as the seniority list of available men for rehire during the busy season then
starting. On Johnson's yellow list George Conklin's name had been printed and
crossed out above a number of names including James and Seyford, but had not been
written below those names. Johnson testified that as Conklin had not reported and
signed by 8 o'clock that morning he lost his seniority, and it was up to Slater to rehire
him as a new employee at the bottom of 'the seniority list if he wanted to. How-
ever, Slater testified as though Conklin' s name appeared below James and Seyford
on the list handed to him that morning-and Slater testified nothing about rehiring
Conklin as a new employee. Thus, Slater testified ' that Conklin "got there late
and he lost two spots on the seniority list." He stated also that Johnson
told me that George Conklin hadn't come in to sign it and he got there after
8 o'clock, . . . This put James and Seyford, who had been there to sign the
seniority list, ahead of him.
Later Slater testified that the first question he put to Johnson,
came with Conklin's name . . . being behind two other guys that's ahead
of him before-rather, the two men, Seyford and James, was in back of
Conklin. And due to the fact that Conklin didn't get there at 8 o'clock in the
morning to sign it , these two , men moved up ahead of him . And he moved
below the two men.
A few questions later Slater testified that he understood that
if anybody didn't show up before 8 o'clock, they lost their seniority of
the spot that they were in. [Emphasis supplied.]
The record does not have the revision of Johnson's yellow list, the revision which
Johnson handed Slater on October 15 and which Slater accepted as the seniority
roster. So the record does not positively reveal that Conklin's name did in fact
appear below James and Seyford, unless Slater's testimony above be taken as
conclusive proof of that fact. But on the next seniority list, the one of December 1,
1956, Conklin's name did appear just below James' and Seyford's, which conclu-
sively shows that he was the first man put on the payroll after October 15 who
had not signed Johnson's list-which fact suggests that on October 15, Slater merely
accepted Johnson's decision that Conklin should be below James and Seyford even
though he had not reported until after 8 o'clock-and that Conklin was not taken on
in the fall of 1956 as a new employee but as one whose seniority had dropped
below two other men-pursuant to the decision of Johnson acquiesced in by Slater.
3. The Wolny matter: Walter J. Wolney worked for Meenan Oil Co., Inc., for
two peak seasons, during the winters of 1954-55 and 1955-56, always as a driver.
He was a member of Respondent Union. At least during the second winter he
worked on the night shift. As of May 1, 1956, due to the drop in customer orders
for fuel oil, his night job was abolished, and, because his seniority entitled him
to it, he was offered work on the day shift. There were no claims of discrimination
in connection with this change. At this time Wolny had a day job with another
company, "Republic Aviation," and he informed Meenan's superintendent, William
Slater, either directly or through another employee, that he would not be available
for daytime driving for Meenan-and on and after May 1, he did not report for
work. At this time he was about number 7 or 8 on Meenan's drivers' seniority list-
and, in any case, was above James and Seyford.
During the winter and spring of 1955-56, Wolny worked daytime as an assembler
at a plant of "Republic Aviation" located in the same general area. At least while
working for Republic he was a member of the International Association of Machin-
ists. In February 1956, when the Machinists conducted a strike at Republic, Wolny
ignored the strike call and continued to work. According to Wolny's credited testi-
mony, during February or March, Respondent Union's shop steward at the Hicksville
plant, Victor Johnson, told him that it was his duty as shop steward to accept
a complaint from one Leonard Tompkins (a Meenan driver), that Wolny would
be charged with strikebreaking, would be fined $500, would be "kicked out of the
union and couldn't get another job." According to Wolny, Johnson advised him
not to wait for these charges, but to accept a withdrawal card from the union and
find himself a job elsewhere.
On April 12, 1956, Respondent Union, through its president, wrote Wolny as
follows:
I am in receipt of a letter from Brothers Victor Johnson and Leonard
Tompkins in which they state that they wish to prefer charges of "strike
breaking" against you.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They state in their letter that you are employed by the Republic Aviation
Corporation at Port Washington , L. I. on a day shift and a strike exists at
that company.
They further state in their letter that your fellow employees at the Meenan
Oil Company have spoken to you regarding the situation and you have
admitted working at that company under these conditions, further that you
have defied them to do anything about it.
Therefore I have called a meeting of the Executive Board of the Local Union
for April 19th at 8 P. M. at this office No. 265 West 14th Street, Room 703,
to hear these charges.
This letter will serve as your notice to be present at this meeting. You may
bring any witness to testify in your behalf. Failure to be present will result
in disciplinary action being taken against you.
At the meeting of the executive board on April 19, attended by Wolny and Victor
Johnson, after about 31/2 hours of deliberation the executive board fined Wolny
$500, and give him 30 days in which to pay it. Wolny has never paid this fine.
At the beginning of the meeting Johnson handed in Wolny's dues, which Wolny had
previously given to Johnson. During the meeting someone said, "Tell him what will
happen if he doesn't pay his fine"; and Victor Johnson echoed, "Yes, tell him what
will happen when he don't pay." Towards the close of the meeting Wolny asked
the president of the Local if he could have his union book back, stating that Johnson
had it. The president asked Johnson to hand it over to Wolny, and told him to do
so a second time before Johnson complied, the latter stating, "He is not going to work
in my barn." The president said, "We will have none of that. We will cross that
bridge when we come to it."
It was the undisputed-and credited-testimony of Wolny that during the summer
of 1956, in August or early September, Wolny ran into Slater by chance at Roosevelt
Raceway upon the occasion of a charity drive for the United Hospital Fund. After
greetings, Slater asked Wolny, how he had made out with his "five-hundred-dollar
situation." Wolny told Slater that he had not paid the fine. Wolny volunteered
that he intended "to be available for work," and asked Slater, "Will you recall me?"
In substance Slater told Wolny that he would recall him, and for Wolny not to worry
about it. Clearly this conversation related to the forthcoming busy season which
both parties knew would start in the fall.
On October 15, 1956, Wolny arrived at the premises of the Hicksville plant at
about 7:30 to 7:45 a. in. He went to the dispatcher's room in the "tower" and
wrote his name and telephone number on the piece of white paper bearing the
signatures and telephone numbers of at least two other employees. This paper was
posted on the company bulletin board located over the time clock just outside
the dispatcher's room, where employees daily punched in and out. Wolny had
signed a similar paper the year before. Wolny's best recollection was that the paper
was headed, "Drivers sign here." He had a short conversation with one Jack Donlon,
an employee, who told him, according to Wolny, that he (Donlon) "had also signed
the list that the shop steward had." Wolny's testimony continued:
So, as I turned to go down, Johnson came up the stairs. (The driver's room
was just below the dispatcher's room, and connected with it by a stairway.)
We exchanged a hello, and Vic got into a conversation with someone, and I
waited a few seconds or a half-minute or so, but he kept talking, and I walked
down the stairs.
Wolny continued,
I went downstairs, out of the building, and across the yard, still on Meenan's
premises. . . . I waited around a little while to see Mr . Slater. I had several
conversations with several different people.
He didn 't see Slater at all that morning before he left the premises between 8:30 and
8:45 a. in. without having signed Johnson's list, which Johnson testified lay on a
table in the drivers' room. Slater testified that he arrived on the premises at about
8:45 that morning.
The testimony of Victor Johnson confirmed Wolny's testimony to the effect that
these two met that morning in the dispatcher's room prior to 8 a. m. and exchanged
no more than a greeting. Johnson allowed that he might have said "hello" to
Wolny. He added, "I am usually polite to people regardless of my opinion of
them." Asked, "You didn't have a very good opinion of Mr. Wolny at that time?",
Johnson replied , "I am a union man, Mister."
At different points in his testimony at the hearing Victor Johnson testified, in-
consistently, that he did not print Wolny's name on his yellow list because Wolny
MEENAN OIL CO., INC. 591
"didn't sign," and ".because he didn't come down to report." He said that the
latter reason was the "only" reason. In his signed affidavit previously executed
for a Board field examiner , Johnson had stated, inconsistently, that "I did not have
Wolny's name on the list because I understood his action of not taking day
work the past season 'as amounting to his quitting at that time." In his affidavit
Johnson had said also,
I consider that Wolny did not report to me on Oct. 15, 1956, because he did
not ask me where he should sign or where the seniority roster was. I did not
know why Wolny appeared at the Company on Oct. 15, 1956. If Wolny would
have demanded to sign the seniority list, I would not have permitted him to
sign until I had called the Union at about 9 a. m. to get advice, in view of
my understanding that he quit the past season. [Emphasis supplied.]
The last paragraph of the affidavit read as follows:
This statement consists of 7 pages and is true to the best of my knowledge
and belief and was read out loud to me by Mr. Lehman of the National Labor
Relations Board.
Just below the last paragraph Johnson wrote his signature, and following the sig-
nature appears the following:
Subscribed and sworn to before me this 15th day of April, 1957. A. J. Lehman,
Field Examiner, N. L. R. B.
This was a seven-page affidavit in the handwriting of the field examiner. Opposite
12 different lines on which deletions or corrections were made, Johnson signed his
initials. His initials appeared on every page except the last, which bore his sig-
nature.
At the hearing Johnson testified that he told the field examiner that,
as far as I know, he (Wolny) had no longer seniority because he quit
his job. But if he had insisted on signing , I would let him sign . That is,
subject to the approval of Local Union.
In substance he denied that he told the field examiner the language italicized above,
and stated that he requested the field examiner to remove that language from the
affidavit. The italicized language appeared on the last page of the affidavit which
bore Johnson's signature and on which no changes had been made. At the hearing
Johnson admitted that Lehman read the affidavit to him, and admitted that Lehman
read the clause at the end concerning Lehman's having read the affidavit to John-
son and that Johnson made no objection at that time. In substance Johnson testified
that he told Lehman to strike out the italicized language above.
Because of his inconsistent answers concerning his reasons for not printing
Wolny's name on his yellow list, because while testifying concerning his yellow
list and his affidavit he did not appear to me as a man telling the truth, because
when his affidavit was read out loud to him he did not object to anything in it,
because the italicized language appeared on the last page in the second paragraph
above Johnson's signature with no corrections at all in that paragraph-I do not
credit Johnson's statement that he told Lehman to strike the italicized language-
and I find that the italicized language amounts to an admission by Respondent
Union, through its agent the shop steward, that even if Wolny had demanded to
sign Johnson's yellow list, Johnson would not have permitted him to do so until
Johnson called the Union later in the morning. The reason why Johnson would
have called the Union, rather than Slater, is considered below under conclusions.
At unstated time or times after he was fined by the Union, Wolny made dues
payments to the Local, which were accepted. On December 3, 1956, the Local
wrote Wolny as follows:
Your check dated November 16, 1956 in the amount of Twelve Dollars
($12.00) has been received, but without any statement from you concerning
the purpose of this payment
On April 19th, 1956 the Executive Board imposed a fine of $500.00
upon you. Please advise promptly whether you are prepared to pay your fine
Until we hear from you further we cannot accept your check and it is
returned to you together with a check from the Local Union for a payment
that you made on August 10th, 1956.
During about the first week in November 1956, Wolny telephoned Slater at
Meenan's. According to Wolny's testimony,
I asked him why I hadn't been recalled, as I noticed that several other drivers
whom I knew who had less seniority than I were already driving, and Mr. Slater
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that I did not report properly that morning, or I did not report , and there-
fore he could not recall me. So I said , "Oh, but I did report." So he said,
"Yes, but you didn't sign the paper that Vic Johnson had," and so forth, and I
related to him that I really didn 't know that it was imperative for me to actually
sign the paper that Vic Johnson had until it was almost too late, or until it was
too late, and he said , "Well, I am sorry , but I have to recall the men in accord-
ance with the seniority lists submitted to me from Vic Johnson , and your name
is not on the list." Then he went on to say that several others were fouled up
accordingly , and there is not much he could do about it, that his hands were
tied , or something to that effect . And I also at that time said , "Well, I am
sorry that it turned out that way . but if that be the case , I will have to take
some other course ." . . . I told him that I was going to the National Labor
Relations Board , and he said he didn 't blame me.
Concerning this conversation Slater testified that,
Mr. Wolny asked me when I was going to put him back to work . I told him
that he wasn't on the seniority list as of right now. Plus, there wasn 't any work
at the moment . We hadn 't had everybody back to work . But the fact that
he wasn 't on the seniority list that I got from Mr. Johnson , that the boys had
signed on the morning of the 15th. . . I know what I told him is that he
didn 't sign the list on the morning of the 15th , and that 's why he wasn 't on it.
Refreshed by a previously executed statement for a Board agent , Slater admitted
that he probably told Wolny that the matter of seniority was between him and
Johnson.
4. Conclusions: In view of all the considerations above , I do not credit any of
the reasons assigned by Slater or Johnson for the omission of Wolny 's name from the
"seniority roster" of October 15, 1956 , or for the failure of the Company to recall
Wolny to work during the fall of 1956.
The entire record establishes that in the administration of,the contract , Johnson
used the reporting and signing aspects of section 10 as a device or pretext to get rid
of Wolny; and Slater acquiesced in and accepted this ruse rather than dispute John-
son's "seniority roster" and assume the risk of trouble with the Union.
Concerning the events leading up to the fining of Wolny, Shop Steward Johnson
testified,
A group of men came and told me that he was an employee of Republic
Aviation , belonging to Machinists ' Union , and they had a legitimate strike, and
he continued to cross the picket line on that job in spite of the fact that he
worked in our place every night . So, we considered it quite unnecessary for a
man to hold two jobs, especially if he had-to use their own word-to scab on
his own job . So, they wanted to know what I was going to do about it. I told
them that I can't do anything about it unless I have proof , definite proof. Just
me going up there saying so is not sufficient . They said, "We will bring you
the proof." So, they did . [ Emphasis supplied.]
This testimony , and particularly the italicized language , shows that Johnson and
the group of men-presumably Meenan drivers-considered it within their power to
separate Wolny from one of his jobs, namely , his job with Meenan.
The process of eliminating Wolny began by fining him; and at the April 19 meet-
ing, when the fine was levied , Johnson echoed the remark of another, "Yes, tell him
what will happen when he don't pay"-and later vowed that Wolny "is not going to
work in my barn."
Wolny was given 30 days from April 19 to pay the fine, but before the elapse of
this 30 days the night shift was abolished and Wolny stopped driving for Meenan.
As has been seen above, when Wolny worked for the Company in the spring of
1956, he was number 7 or 8 on the drivers' seniority list out of about 14 or 15.
Victor Johnson , who was in a position to know , testified that only the first 5 or 6
men on the list worked throughout the summer-which meant that Wolny, if he had
stayed on after May 1 , would not have had continuous steady employment through-
out the summer.
As has been seen above, under the contract any employee who, during the summer,
"according to seniority would not have steady employment shall be entitled to a
leave of absence and maintain full seniority rights during that period." Slater's
testimony establishes that Superintendent Slater, who had final authority on behalf
of the Company in the employment of drivers, did not consider Wolny as having
quit his employment with Meenan when he ceased driving on May 1 rather than
drive on the day shift, and that Slater did not question Wolny's maintenance of his
seniority rights under the contract-except in reference to the events of October 15.
Thus, on October 15, Slater asked Shop Steward Johnson why Wolny's name was not
MEENAN OIL CO., INC. 593
on Johnson's list-which he would not have done had he - not considered Wolny
qualified to have his name on the list. Surely if Slater had considered Wolny to have
quit his employment as of May 1 and to be , therefore , no longer an employee under
this clause of the contract , Slater would not have asked Johnson why Wolny's name
was not on Johnson's list . In addition to this, Slater testified that in the spring of
1956 another driver, Rivoire,, quit his employment, but he testified nothing about
Wolny having quit his employment. Further, during their chance meeting at Roose-
velt Raceway in August or September, Slater told Wolny that he would recall him
and said nothing about Wolny's having quit his employment with Meenan . Finally,
over the telephone with Wolny in November, Slater referred to Wolny's not having
reported to Johnson and not having signed Johnson 's list on October 15-but said
nothing about Wolny's having been unqualified to sign the list because he was no
longer an employee because he had quit in the spring . Additional proof that Wolny
was not thought to have quit in the spring is the fact that his name was not stricken
from the seniority list at that time and still appeared upon it when Johnson was
printing up his yellow list from the old list, on October 15. On the above evidence,
and on the entire record considered as a whole , I hold , despite Johnson 's alleged
understanding to the contrary, that Wolny did not quit his employment with Meenan
as of May 1 , 1956 , and that under the contract he was in a leave -of-absence status
during the summer and was therefore entitled to maintain full seniority rights during
that period.
On October 15, 1956, Shop Steward Johnson discriminately omitted Wolny's name
from his yellow list while including the names of others who did not report or did
not sign-which fact indicated that Johnson did not intend to let Wolny sign. Fur-
ther, Johnson admitted he would have refused to permit Wolny to sign the list even
if Wolny had demanded to sign, without first calling the Union. In his affidavit
Johnson gave as the reason he would have called the Union-because "of my under-
standing that he quit the past season ." But for confirmation or denial that Wolny
had quit Johnson would naturally have called Slater, the company superintendent,
who would be informed, and not the Union. The only likely reason he would have
called the Union would have been to get moral backing for his impulse not to let
Wolny sign, in order to carry out his previously expressed determination not to let
Wolny work "in my barn," since Wolny had not paid his fine.
The record establishes that had Wolny been recalled to work 3 in the fall or
winter of 1956 in accordance with his seniority-which was number 7 or 8 posi-
tion-he would have been recalled prior to James and Seyford, who were the second
and third recalled after October 15 who were not working before or on October 15.
As of December 1, 1956, Respondent Meenan was regularly working 16 drivers, in-
cluding James and Seyford, and George Conklin-but it has never recalled Wolny.
As of December 1, Jankowski was carried as number 7 on the seniority roster, James
as number 8, Seyford as number 9, and George Conklin as number 10. In their
telephone conversation early in November, Slater gave as the reason why he had
not recalled Wolny the fact that Wolny's name was not on the seniority list submitted
by Johnson; but in November, after this telephone conversation, Meenan employed
as a driver, for the first time , one Werner, who theretofore had no seniority as a
driver and was not on the seniority list; and employed also as a driver, one Clemente,
whose crossed -out name had appeared on Johnson 's seniority list of helpers on
October 15, but who was not on the drivers' seniority list. Hiring these two men
who were not on.the listso soon, after telling Wolny he had not hired him because
he was not on the list, shows that Slater was not acting in good faith towards Wolny.
There can be no doubt on this record that Slater would have recalled Wolny
to employment during the fall of 1956 but for Wolny's unresolved difficulties with
the Union, which Slater knew about, and but for Slater's acquiescence in Johnson's
decision concerning Wolny. The record reveals no marks against Wolny's record
as a driver for Meenan . Wolny's uncontradicted testimony was that he got along
well with Slater and had a pleasant relationship with him. Nothing in Slater's
testimony suggests the contrary. Slater admitted that he knew in the spring that
Wolny was having difficulties with the Union, and that he knew in the fall that these
difficulties had not been resolved. Concerning his understanding in November, when
Wolny telephoned him, Slater testified, after some delay, .
3It was Wolny's uncontradicted and credited testimony that at all times from
September 1956, on,,he was, available, for employment at Meenan's. Further, his presence
on the Meenan premises on the early morning of October 15 , indicated that he desired to
return to work for Meenan . Further , at their chance meeting in August or September,
Wolny told Slater he would be available for work.
487926-59-vol. 121-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As far as I knew-and it was strictly on a rumor basis-he still hadn't straight-
ened out whatever his differences, which-the one that I knew of-which was
you don't keep anything hidden amongst a bunch of drivers. That was a noted
rumor all over the place Wolny had been brought up on charges by the union.
That's as far as I knew about it.
On the entire record I conclude that Johnson omitted Wolny's name from his
yellow list, and thus from the "seniority roster" which he handed to Slater, because
Wolny had not paid his fine and was not in the good graces of the Union, and in
order to prevent Wolny from being recalled by the Company. Although Johnson
testified that he did not know at this time whether Wolny's fine had been paid, this
was entirely improbable and on the'entire record I do not credit it.
In the Wolny case the clear purpose of the Union in causing his discrimination
was to encourage members to perform obligations or supposed obligations of member-
ship-among them, not to cross picket lines and to pay fines levied by the Union-the
Local thereby being strengthened in its control over its members and in its dealings
with Meenan and other employers. As the Supreme Court said in an earlier
Teamsters case,4
Obviously the [Union] would not have invoked such a sanction had [it] not
considered it an effective method of coercing compliance with union obligations
or practices... .
On the 'entire record considered as a whole, I hold, consistent with Board and
Court precedent, that the discriminatory exclusion of Wolny from the seniority list
on October 15, 1956, unilaterally determined by the Local and acquiesced in by
the Company, in implementation of the unlawful seniority clause of the contract,
caused the Company's discriminatory failure to recall Wolny to driving during the
fall of 1956-Respondent Meenan thereby violating Section 8 (a) (1) (2) and (3)
of the Act, and Respondent Local thereby violating Section 8 (b) (1) (A) and (2).
Interstate Motor Freight System, supra; Pacific Intermountain Express Co., supra;
Dallas General Drivers, supra; Kenosha Auto Transport Corporation, supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondents' activities, set forth in section III, above, occurring in connection with
Respondents' operations described in section I, above, have a close, intimate, and
substantial relation to trade , traffic , and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, I
shall recommend that each of them cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
The respective Respondents having discriminated against and caused the discrimi-
nation against Walter J. Wolny at all times since October 15, 1956, I recommend
that they immediately restore him to a position on the drivers' seniority roster just
ahead of the number given Fred James on that roster on October 15, 1956, with
all rights attached thereto; and make him whole for any loss of pay he may have
suffered by reason of the discrimination against him by payment to him of a sum
of money equal to that which he normally would have earned as wages had he been
occupying said position on the list, from October 15, 1956, to the date when, pursuant
to the recommendations herein contained Respondents shall restore him to said po-
sition on the list, less his net earnings during said period (Crossett Lumber Company,
8 NLRB 440, 497-8), said back pay to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
As provided in the Woolworth case, I recommend further that Respondent Meenan
make available to the Board upon request payroll and other records, in order to
facilitate the checking of the amount of back pay due.
As for a number of years the Respondents have performed or given effect to
agreements containing unlawful seniority provisions, I recommend that in the
future they refrain from doing so.
6 N. L. R. B. v. International Brotherhood of Teamsters, etc., 347 U. S. 17.'
CHICAGO BRIDGE & IRON COMPANY 595
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Meenan Oil Co., Inc., is engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within the meaning of the Act.
3. By performing or giving effect to agreements containing clauses delegating
final control over the seniority status of Meenan 's employees to Respondent Local,
the Respondent Meenan and Respondent Local have, at all times since June 20,
1956, engaged in unfair labor practices within the meaning of Section 8 (a) (1),
(2), and ( 3), and Section 8 (b) (1) (A) and (2) of the Act.
4. At all times since October 15, 1956, by Respondent Meenan 's acquiescence in
Respondent Local's unilateral determination of the seniority status of a particular
employee, Walter J. Wolny, thereby implementing the unlawful seniority agree-
ment , Respondent Meenan has discriminated and is discriminating against said
Walter J. Wolny in violation of Section 8 (a) (1), (2 ), and (3 ) of the Act, and
Respondent Local has caused and is causing said discrimination , in violation of
Section 8 (b) (1) (A) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Chicago Bridge & Iron Company and Roger Fields. Case No.
7-CA-1444. August 19, 1958
DECISION AND ORDER
On January 4, 1957, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the, Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report, a copy of which is attached hereto. Thereafter, the Respond-
ent filed exceptions to the Intermediate Report and a supporting
brief. The Respondent's request for oral argument before the Board
is hereby denied as the record, exceptions, and brief adequately
present the issues and positions of the parties.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its power in connection with this case to a three-mem-
ber panel [Members Rodgers, Bean, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
121 NLRB No. 74.