Murphy's Motor Freight, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1955

113 N.L.R.B. 524 (N.L.R.B. 1955)

524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Murphy's Motor Freight, Inc. and Paul C. Yearwood
Local 107, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL and Paul C.
Yearwood. Cases Nos. 4-CA-1140 and 4-CB-241. August 9, 1955
DECISION AND ORDER
On March 18, 1955, Trial Examiner Louis Plost issued his Interine-
diate Report in the above-entitled proceedings, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent Union
filed exceptions to the Intermediate Report and a supporting brief..
No exceptions were filed by the Respondent Employer or the General`
Counsel.
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 In-
termediate Report, the Respondent Union's exceptions and brief, and
the entire record in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, with the modifi-
cations and additions noted below.'
As fully detailed in the Intermediate Report, Yearwood has been
considered by Local 107 to be a delinquent member in suspended status
ever since 1942 when he left the driving trade temporarily without
taking out a withdrawal card. Subsequently, on three occasions prior
to his hire by the Respondent Employer, Yearwood resumed employ-
ment as a driver and sought to reinstate himself in Local 107 by tender-
ing a, new initiation fee and 1 month's dues. Each time, however,
Local 107 demanded full payment of "back dues" and, upon Year-
wood's refusal to comply, brought about his discharge by the em-
ployers involved. In 1952 he was hired by the Respondent Employer
and, in August 1954, Local 107, which had a union-security contract
with the Employer, again insisted that Yearwood pay all "back dues"
as a condition for regaining membership in good standing. When
Yearwood refused to pay such dues, Local 107 apprised the Employer
of Yearwood's "dues delinquency" and requested his discharge. The
Respondent Employer thereupon discharged Yearwood.
We adopt the Trial Examiner's finding that the inclusion by Local
107 in its dues demand of "back dues" for a period antecedent to Year-
wood's employment with the Employer, was violative of the Act.
'The Respondent Union's request for oral argument is denied as the record and excep-
tions and briefs, in our opinion, adequately present the issues and the positions of the
parties
113 NLRB No. 61.
MURPHY'S MOTOR FREIGHT, INC. 525
We also find , in the circumstances disclosed in the record and above
summarized, that Yearwood was excused, by reason of its futility,
from tendering any amount 2 less than the requested total "back
dues." ' We need not, therefore, and do not, decide whether, as urged
by the Respondent Union in its brief, Yearwood, by virtue of his
status as a suspended member of Local 107, was contractually liable
to pay such "back dues" as may have accrued during his employment
with the Employer.
We conclude, as did the Trial Examiner, that by causing the dis-
charge of Yearwood from Murphy's Motor Freight, Inc., the Respond-
ent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act,
and that by discharging Yearwood at the Union's request, with knowl-
edge of its unlawful motivation, the Respondent Murphy's Motor
Freight, Inc., violated Section 8 (a) (3) and (1) of the Act.
THE REMEDY
As recommended by the Trial Examiner, we shall order the Re-
spondents, jointly and severally, to make whole Paul C. Yearwood
for any loss of pay he may have suffered by reason of the discrimina-
tion against him.
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 :
1. The Respondent, Murphy's Motor Freight, Inc., Philadelphia,
Pennsylvania, its officers, agents, successors, and assigns, shall:
a. Cease and desist from :
(1) Encouraging membership in Local 107, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri-
ca, AFL, or in any other labor organization of its employees, by dis-
charging any of its employees or discriminating in any other man-
ner in regard to their hire or tenure of employment, or condition of
their employment, except to the extent authorized by Section 8 (a)
(3) of the Act.
(2) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a
0 While we find merit in the Respondent Local 107 ' s exception to the Trial Examiner's
finding that Yearwood had tendered Cariola a month's dues , it is clear from the foregoing
that this error is immaterial to the result herein.
a Bloomcngdale 's, 107 NLRB 191; Peerless Tool and Engineering Co, 111 NLRB 853;
The Eclipse Lumber Compawy, Inc, 95 NLRB 464, enfd. 199 F. 2d 684 (C. A. 9) ; West-
inghouse Electric Corporation , 96 NLRB 522 , 525 and cases cited therein , enfd. sub nom,
N L. R. B v. International Association of Machinists , Local 504, 203 F. 2d 173 (C. A. 9).
.526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of employment as authorized by Section 8 (a) (3) of the
Act.
b. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Jointly and severally with Local 107, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri-
ca, AFL, make Paul C. Yearwood whole for any loss of pay he may
have suffered by reason of their discrimination against him, in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(2) Upon request, make available to the Board or its agents, for
examination and copying, all pertinent records necessary to analyze
the amount of back pay due under this Order.
(3) Post at its offices and place of business in Philadelphia, Pennsyl-
vania, copies of the notice attached hereto marked "Appendix A." 4
Copies of said notice, to be furnished by the Regional Director for
the Fourth Region, shall, after being duly signed by the Respond-
ent Employer's authorized representative, be posted by it immediate-
ly upon receipt thereof and maintained by it for sixty (60) consecu-
tive clays thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
he taken by the Respondent Employer to insure that said notices are
.not altered, defaced, or covered by any other material.
(4) Notify the Regional Director for the Fourth Region in writ-
ing, within ten (10) days from the date of this Order, what steps its
has taken to comply herewith.
2. The Respondent, Local 107, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, AFL,
its officers, agents, successors, and assigns, shall:
a. Cease and desist from :
(1) Causing or attempting to cause Murphy's Motor Freight, Inc.,
Philadelphia, Pennsylvania, its officers, agents, successors, and -as-
signs, to discriminate against its employees in violation of Section 8
(a) (3) of the Act.
(2) Restraining or coercing the employees of Murphy's Motor
Freight, Inc., its successors or assigns, in the exercise of the rights
guaranteed in Section 7 of the Act, including the right to refrain
from engaging in any or all of the activities guaranteed thereunder,
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized by Section 8 (a) (3) of the Act.
d In the event that this Order is enforced by decree Qf 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."
MURPHY'S MOTOR FREIGHT, INC. - 527
b. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Notify the Respondent Employer and Paul C. Yearwood, in
writing, that it withdraws all objections to the employment of Paul
C. Yearwood and that it requests said Employer to offer Yearwood
immediate and full reinstatement to his former or substantially equiv-
alent position.
(2) Jointly and severally with Murphy's Motor Freight, Inc., make
Paul C. Yearwood whole for any loss of pay which he may have suf-
fered by reason of their discrimination against him, in the manner set
forth in the section of the Intermediate Report entitled "The
Remedy."
(3) Post at its business office at Philadelphia, Pennsylvania, and
all other places where notices to its members are customarily posted,
copies of the notice attached hereto marked "Appendix B." 5 Copies
of said notice, to be furnished by the Regional Director for the Fourth
Region, shall, after being duly signed by the Respondent Union's rep-
resentative, be posted by it immediately upon receipt thereof and
maintained by it for a period of at least sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken
by the Respondent Union to insure that such notices are not altered,
defaced, or covered by any other material.
(4) Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto marked "Appendix B," for post-
ing, the Respondent Employer willing, at its Philadelphia, Pennsyl-
vania, terminal in places where notices to employees of Respondent
Employer are customarily posted. Copies of said notice, to be fur-
nished by the Regional Director for the Fourth Region, shall, after
being signed as provided in the preceding paragraph of this Order,
be forthwith returned to the Regional Director for posting.
(5) Notify the Regional Director for the Fourth Region in writ-
ing, within ten (10) days from the date of this Order, what steps it
has taken to comply herewith.
6Ibid.
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, as amended, we hereby notify you that :
WE WILL NOT encourage membership in Local 107, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL, or in any other labor organization
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of our employees, by discriminating against our employees in any
manner in regard to their hire or tenure of employment, or any
term or condition thereof, except to the extent permitted under
Section 8 ( a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights guaranteed
them under Section 7 of the National Labor Relations Act, in-
cluding the right to refrain from any or all of the activities
guaranteed thereunder, except to the extent that such right may
be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
WE WILL offer to Paul C. Yearwood immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to any seniority, or other rights and privileges
previously enjoyed, and make him whole for any loss of pay suf-
fered as a result of the discrimination against him.
All our employees are free to become, to remain, or to refrain from
becoming or remaining, members of the above-named Union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
Act.
MURPHY'S MOTOR FREIGHT, 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
To ALL MEMBERS OF LOCAL 107, INTERNATIONAL BROTHERHOOD ' OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL, AND TO ALL EMPLOYEES OF MURPHY'S MOTOR FREIGHT, 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 WILL NOT cause nor attempt to cause Murphy's Motor
Freight, Inc., its officers,' agents, successors, or assigns, to dis-
criminate against employees in regard to their hire or tenure of
employment, or any term or condition of employment, in violation
of Section 8 (a) (3) of the National Labor Relations Act.
WE WILL NOT in any other manner restrain or coerce employees
of Murphy's Motor Freight, Inc., in the exercise of the rights
MURPHY'S MOTOR FREIGHT, INC. 529
guaranteed under Section 7 of the Act, including the right to
refrain from engaging in any or all of the activities guaranteed
thereunder, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3)
,of the Act.
WE, WILL notify Murphy's Motor Freight, Inc., in writing, that
We have no objection to the employment by said Corporation of
Paul C. Yearwood.
LOCAL 107, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CIIAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL,
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 an amended charge duly filed December 9, 1954, by Paul C . Yearwood, an
individual , against Murphy 's Motor Freight, Inc., of Philadelphia , Pennsylvania, here-
in called Respondent Employer,' docketed by the Fourth Regional Office of the
National Labor Relation Board as 4-CA-1140 , and a charge filed the same date
against Local 107, International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, AFL, herein called Local 107, docketed by said
Regional Office as 4-.CB-241,2 which cases were consolidated by the Regional Di-
rector for the Fourth Region of the National Labor Relations Board (Philadelphia,
Pennsylvania ), herein called the Board , the Regional Director issued a complaint,
dated December 10, 1954, against the said Respondent Employer and Local 107
alleging that the Respondent Employer had engaged in and was engaging - in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7 ) of the National Labor Relations Act, as amended, 61 Stat . 136, herein called
the Act , and further alleging that Local 107 had engaged in and was engaging in un-
fair labor practices within the meaning of Section 8 (b) (1) (A) and (b) (2) and
Section 2 ( 6) and ( 7) of the Act.
Copies of the complaint , the charges , the order consolidating the cases, and a notice
of hearing were duly served upon the Respondent Employer and Local 107.
Answers were duly filed by the Respondent Employer and Local 107.
The complaint , with respect to the unfair labor practices , alleged in effect that
Paul C . Yearwood , an employee of the Respondent Employer , did in June 1953 and
July 1954 and on or about August 9, 1954, apply for membership in Local 107 and
,did on those dates tender the dues and initiation fees uniformly required of other em-
ployees of the Respondent Employer ; that Local 107 did on or about August 9, 1954,
deny membership to Paul C . Yearwood for the reason that he did , on that date, re-
fuse to accede to the demand of Local 107 that he pay dues in an amount substantially
in excess of the amount of dues uniformly required of other employees and for a
period of time in which said employee was not employed under the contract existing
between Local 107 and the Respondent Employer and that Local 107 did on or about
August 13 , 1954 , demand that the Respondent Employer discharge Paul C. Year-
wood , and that the Respondent Employer did discharge , did refuse to employ, and
i Joseph J . McGowan answered the call for appearances but it later developed that
although the Respondent Employer filed an answer in 4-CA-1140 , it was not represented
by counsel at the hearing and introduced no evidence
0 In each instance the original charge was filed September 23, 1954.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has at all times after August 13, 1954, failed or refused to reinstate Paul C. Yearwood
for the reason that he has failed to comply with the conditions imposed upon him,by
Local 107 as a condition of obtaining membership therein.
The complaint further alleges that the acts of Local 107 as described above con-
stitute unfair labor practices affecting commerce within the meaning of Section 8 (b)
(1) (A) an (b) (2) and Section 2 (6) and (7) of the Act, and that the acts of the
Respondent Employer as described above constitute unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7)
of the Act.
Pursuant to notice a hearing was held before Louis Plost, the duly designated Trial
Examiner, at Philadelphia, Pennsylvania, on January 17-18, 1955. The office of
the General Counsel 3 and Local 107 were represented by counsel, herein referred
to in the names of their principals. The, Charging Party appeared pro se and the
Respondent Employer appeared by a layman? All parties participated and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing upon the issues, to argue orally, and to file briefs, pro-
posed findings of fact, and conclusions of law, either or all, with the Trial Examiner.
The parties argued orally. A date was set for the filing of briefs, conclusions, and
findings.
The Trial Examiner granted an unopposed motion by the General Counsel to
amend the complaint and denied motions by Local 107 to dismiss the complaint.
A brief has been received from Local 107.
Upon the entire record, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
There is no dispute as to the following:
The Respondent Employer is a corporation duly organized and existing by virtue
of the laws of the Commonwealth of Pennsylvania, having an office and principal
place of business in Philadelphia, Pennsylvania, and is engaged in the business of
transporting products by motor truck. The products transported are principally
products handled and shipped by Atlantic and Pacific Food Stores located in Philadel-
phia, Pennsylvania.
The Respondent Employer annually receives revenue in excess of $100,000 as fees
for transporting products in trucks operated by the Respondent Employer from points
located in the Commonwealth of Pennsylvania to points located in the State of New
Jersey and/or other States of the United States other than the Commonwealth of
Pennsylvania. The Respondent Employer annually receives revenue in excess of
$50,000 for transportation and other services performed in States of the United States
other than the Commonwealth of Pennsylvania.
II. THE ORGANIZATION INVOLVED
Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL, the Respondent Union herein, is a labor organization
which admits employees of the Respondent Employer to membership.
III. THE UNFAIR LABOR PRACTICES
A. The contracts between Local 107 and the Respondent Employer
There is no dispute as to the following facts relating to labor agreements between
Local 107 and the Respondent Employer.
Local 107 and the Respondent Employer have been parties to a labor agreement
since 1939. The first of such contracts admitted in evidence is dated November 10,
1942, and continued in effect until January 1, 1947; 5 at which time a new contract
? The complaint herein was issued while Mr George Bott held the office of General
Counsel At the time the hearing as opened Mr Bott's term of office had expired No
new General Counsel was appointed during the cow se of the he:u mg The attorney repi e-
senting the General Counsel's office is referred to herein as General Counsel as a matter
of form
4 See footnote 1, supra.
5 Contracts prior to 1942 were not available for the record
r
MURPHY'S MOTOR FREIGHT, INC . 531
was signed and continued until October 9, 1950, the date of a succeeding contract
which expired on December 31, 1954.
These contracts, prior to October 9, 1954, were between Local 107 and Motor
Transport Relations, Inc., and thereafter with Pennsylvania Motor Truck Association,
these signatories being the representatives of a great number of truck operators who
also signed the agreements as individuals.
The Respondent Employer was a signing party to all the agreements mentioned.
The Eontract expiring December 31, 1954, contains the following clauses:
IV. All employes shall, within thirty (30) days after the execution of this
agreement or within thirty (30) days of the date of their employment, whichever
is later, become and remain members of the UNION in good standing as a con-
dition of their employment, provided UNION shall have received certification
by the National Labor Relations Board that an appropriate majority have
authorized the making of an agreement containing substantially the terms set
forth in this agreement, or such certification is no longer required by law. DIVI-
SION agrees that for the purpose only of an election conducted by the National
Labor Relations Board for any purpose, whether to effectuate the foregoing pro-
vision of this paragraph or otherwise, an industry-wide unit of all employees
covered by this agreement, rather than an individual operator unit, is appropriate,
and further agrees to furnish to the National Labor Relations Board such infor-
mation as is necessary to conduct the election.
V. Subject to existing law, in response to any OPERATOR'S requests for
men, UNION shall at all times be obligated to supply competent and experienced
help and shall not supply men who have been dismissed by any other OPERA-
TOR for theft or for intoxication while on the job. In the event that men sup-
plied by the UNION are not for good and sufficient reasons satisfactory to an
OPERATOR, he may at his option request UNION for replacements. In re-
questing men from UNION, the OPERATOR shall have the right to request
and UNION shall supply any particular member of UNION in good standing
who is unemployed at the time, provided that such unemployed member is will-
ing to accept the work. Any OPERATOR may hire new employes from any
source but agrees to give preference to satisfactory employes with experience in
the trucking industry in this area who are competent and qualified. The wages,
hours, and other conditions of employment of any employe covered by this
agreement shall be as herein provided whether such employe has become a mem-
ber of UNION or not. In the event of a change in the law during the term of
this agreement, DIVISION agrees that the union security clauses set forth in
the agreement dated January 1, 1947, shall automatically become a part of this
agreement.
The other indicated contracts contain a clause reading:
IV. Except as herein otherwise provided, all classes of employes of OPERA-
TORS to whom this agreement applies shall be members of UNION, and
OPERATORS shall continue in their employment only members of UNION
with paid up dues books.
V. In response to any OPERATOR'S requests for men, UNION shall at all
times supply competent and experienced help, and shall not supply men who
have been dismissed by any other OPERATOR for theft, or for intoxication
while on the job. In requesting men from UNION, the OPERATOR shall have
the right to request, and UNION shall supply, any particular member of UNION
in good standing who is unemployed at the time, provided that such unemployed
member is willing to accept work. In the event that the men supplied by the
UNION are not, for good and sufficient reasons, satisfactory to an OPERATOR,
he may at his option employ another member of UNION in good standing to be
supplied by the UNION.
Albert Michael, the Respondent Employer's auditor, testified without contradiction
that the contracts between Local 107 and the Respondent Employer dated prior to
the one which expired in 1942 also contained closed-shop provisions.
B. Membership of Paul C. Yearwood in Local 107
Paul C. Yearwood joined Local 107 February 21, 1939, and ceased paying dues
in September 1942.
Yearwood testified that in September 1941 he sent Local 107 a check for his dues
to the end of the year and requested a withdrawal card; the card was not sent and
sometime later he was told by the manager of Local 107 at Wilmington, Delaware,
the office at which he had always paid dues, that no record of his alleged payment
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existed . The records of Local 107 show that Yearwood paid dues for the months
of July, August, and September 1942, on September 3, 1942.
Upon the entire record in the case , as well as the Union's records , the Trial Exam-
iner is convinced that Yearwood did not ask for a withdrawal card in September
1941 or September 1942 and finds that after September 3, 1942, Yearwood paid
no dues into Local 107.
Sometime in December 1953 Yearwood, who was at that time employed by a
company under contract with Local 107, applied to Local 107 for the return of
his "dues book," which he had claimed to have sent to the Union together with a
request for a withdrawal card and was again told that no record of his payment
and request was on the Union's books and that he would not be given a "book"
until his arrears from 1942 were paid . Because he had no union membership book,
Yearwood was discharged . He then found employment in a company under con-
tract with a different union , which he joined . Thereafter, until 1945, Yearwood
worked for various employers not under contract with Local 107. Sometime in
1945, Yearwood obtained employment with a company under contract with Local
470, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, and applied for membership in this local but
was refused membership , according to Yearwood, "because I had been a former
member of 107." Because he could not obtain membership in Local 470 Year-
wood was discharged . In 1946 he obtained a job with a firm also under contract
with Local 470. Yearwood again applied for membership in Local 470, this time
he was accepted , nothing being asked him regarding former union membership and
he volunteering no information . Yearwood kept his membership in Local 470 until
April 17, 1950, when having gone to work for a company under contract with
Local 107 he took a transfer card from Local 470 and asked for membership in
Local 107 on his transfer card. According to Yearwood , whose testimony was un-
denied, the union steward at his then employer's plant informed him that Local
107 would not accept him on his transfer card because "I owed dues back from
1941." Not having a Local 107 membership book he was discharged.
In 1951 he worked for various firms not under union contract.
In May or June 1952, Yearwood was hired by the Respondent Employer. He
worked steadily for about 5 months then was out for some time being returned to
work in April 1953. Apparently the steward for Local 107 at the Respondent
Employer's plant did not inquire into Yearwood' s union membership , on the con-
trary the steward, Joseph Cariola, told all the Respondent Employer's nonunion
member drivers that they could not be taken into the Union until a certain election
within the Union was over. The election took place May 1954. On August 9,
1954, Union Steward Cariola presented the names of some 15 of the Respondent
Employer's drivers for membership in Local 107, and at the same time presented
Yearwood's transfer card from Local 470.
Local 107 would not accept Yearwood's transfer card because it considered him
a member already in arrears for dues since September 1942.
Yearwood had given 1 month's dues to Cariola to present with his transfer card.
The complaint alleges that Yearwood also tendered the fees of a new applicant.
There is nothing in the record to sustain this allegation , however, it is clear that
such a tender would have been futile.
It is clear that Yearwood ceased paying dues into Local 107 in September 1942;
that for a period of 10 years thereafter he worked for various employers, some of
whom were not under contract with Local 107 and that during this time he joined
two different unions; that he was employed by the Respondent Employer in mid
1952; and that he was not asked to come under the terms of the union agreement
until August 9, 1954, and that Local 107 refused him such membership as would
assure his continued employment by the Respondent Employer under its contract
because it considered him in arrears for dues for a period antedating his employment
by the Respondent Employer.
Except as herein indicated there is no dispute as to the above-related facts found
in the main on Yearwood's testimony , corroborated in part by Union Steward
Cariola and Union Business Agent Edward Walker.
C. Yearwood 's discharge
Joseph Cariola testified that he took Yearwood to the union hall ; that he talked
to Business Agent Edward Walker regarding Yearwood 's desire to obtain a "book"
on his transfer card from Local 470; and that Walker told him:
. Mr. Yearwood doesn 't need a book. He already has one, and when he
catches up with his book, he'll be a member in good standing again.
MURPHY'S MOTOR FREIGHT, INC.' 533
Cariola testified he later learned that Yearwood's arrears amounted to "something
like $400.00 or $500.00."
Cariola further testified that sometime after the above-related conversation with
Walker he went to the Respondent's office and told Joseph McGowan, who was
always in charge during the absence of John Murphy or Chris Murphy, that Year-
wood was to be "taken off the schedule." He testified:
I told him that he would have to take him off the schedule, because he
didn't have a paid up book, and he would have to straighten it-As a Union
man he would have to straighten out his dues.
Joseph McGowan testified that on August 13, 1954, Cariola informed him that
"Mr. Yearwood was to be taken off the schedule because he was back in his dues."
He testified further:
Q. All right, In substance, what did he say?
A. That Paul was behind in his dues and he wouldn't be allowed to work
until he was paid up. So then I took him off. I rubbed his name off.
Q. And so what did you do?
A. I rubbed Paul's name off the schedule.
Q. And by rubbing his name off the schedule, what effect did this have on
his employment?
A. That finished it, at least for the time being until his dues would be
paid up.
McGowan testified that he then "paid off" Yearwood.
Yearwood testified that after his visit to the union hall with Cariola he continued
working until August 13, 1954, at which time Cariola told him "The Union told me
to knock you off"; that he then turned in his logbook and sheets and was told by
McGowan:
... "Yearwood, I hate to see you go." He said, "You've been a good man on
your run," but he said, "your job is here if you can get straightened out with the
Union. Your job is here as long as we're in business."
On the following Monday, Yearwood called on John Murphy who told him "Your
job is here if you get straightened out with the Union."
Yearwood has not been recalled to work.
D. The Union's contention
The constitution of the International Union which governs Local 107 provides: 6
Any member of the International Union leaving our employment or going to
work at another craft or occupation , must be given an honorable withdrawal
card and cannot remain a member of the International Union; but before a
withdrawal card is issued the individual must comply with all rules and laws of
the local and International Union.
Payment of dues is provided for by the Union's constitution as follows:
All members paying dues to local unions must pay on or before the first
business day of the current month , in advance . Any member failing to pay his
dues at such time shall not be in good standing . Any member who shall be
three months in arrears in the payment of dues, fines, assessments , or other
charges, at the end of the third month , shall automatically stand suspended and
shall not be entitled to any rights or privileges as a member of the local union
or International Union. Local unions may provide suspension or expulsion for
lesser period of arrearages.7
With respect to transfers from one local union to another the constitution in effect
at the time the transfer card was issued provides in article XVII, section 1 , as follows:
It shall be compulsory upon every local union to accept the transfer card of
a member in good standing with any local union of the International Organiza-
tion, without any extra charge or fees, except as provided in the International
Constitution provided , however, the member seeking to transfer shall comply
with all rules and regulations set forth in this Constitution respecting transfer;
and provided further he shall comply with rules and regulations of the local and
its constitution and by-laws . Such union shall accord him opportunity for
6 Union Exhibit No. 4-article XVII, sec 5 (c).
7 Union Exhibit No. 4-article X, sec. 5 (c).
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
employment and all other rights and privileges in accordance with the rules and
regulations of the local union to which he seeks to transfer.
Walter C. Crawford, senior business agent of Local 107, testified that in practice,
members, 3 months' delinquent in dues, are dropped ( suspended ) from all rights in
accordance with the Union 's constitution . He also testified that a member so dropped
is not always notified and further that all delinquent dues to the time of reinstatement
must be paid by the member so dropped in order to again be placed in good standing.
Local 107 contends that after Yearwood was dropped for nonpayment of dues he
still remained a member of the Union , subject to all constitutional provisions gov-
erning reinstatement; that when as a member of Local 107 (some 10 years after being
in the state of suspended animation as far as his union rights were concerned) he
obtained work with the Respondent Employer he was obligated to pay all his "back
dues" in order to hold his job under the Union's contract with the Respondent
Employer.
Apparently the matter of honoring Yearwood's withdrawal card from Local 470
is also covered by the constitutional provision requiring the transferee to "comply
with all rules and laws of the local and International Union."
Local 107 argues that as Yearwood was not a new applicant he was not entitled
to the same treatment, namely, acceptance into Local 107, as were the other applicant
employees of the Respondent Employer.
The brief argues:
Clearly, Union had a right under its contract with Murphy's, to require the
discharge of Yearwood for his failure to pay dues, in which he became delinquent
while he was employed at Murphy's. This is all Union did.
But the General Counsel argues that Union tried to collect from Yearwood
dues which became payable before Yearwood came to Murphy's. But Union
had a right to collect those dues, whether or not Union could make payment of
those dues a condition of employment. As a matter of fact, the contracts with
Murphy's extending all the way back to before 1941 mean Union could have
made payment of all the back dues a condition of employment.
The Respondent's brief closes with this argument:
A ruling adverse to Union in this case would mean that an employee could
with impunity fall behind in his dues in one job and then jump to another
employer and get away with it by offering an initiation fee and dues for one
month when he tried to go to work for the second employer.
E. Conclusion
The Act protects the right of a labor organization to control acquisition and reten-
tion of membership therein and likewise gives a union the right , under certain con-
ditions, to require membership in the union as a condition of employment.
A union may be likened to an army, with or without banners. The ranks of a
union, as those of an army, are filled by dedicated volunteers , consenting inductees,
and unwilling , resentful conscripts.
Section 8 (a) (3) of the Act provides the union with a method of obtaining
inductees and conscripts but at the same time provides for exemption.
Clearly, under the Act, a union has a right to refuse membership but it is also
clear that the congressional intent was to protect a worker in his job should he
be wrongfully denied membership required by a labor contract. The right to
membership lies with the union alone, but the right to a job is surrounded by safe-'
guards which limit a union 's acts.
The record in this case discloses that at best Yearwood was a very lukewarm
union adherent , not interested in organized labor as a philosophy of life but as a
condition to be accepted as a means of insuring more meat and potatoes in re-
turn for dues payment. The Trial Examiner is convinced that Yearwood ceased
paying dues to Local 107 because he felt he would not need the Union again
as he had achieved supervisory status, but once having lost this status and again
being employed where the union contract required membership he sought reinstate-
ment.
According to Yearwood 's uncontradicted testimony he sought reinstatement in
Local 107 in December 1943 and membership in Local 470 in 1945, being frustrated
in his effort by Local 107 which also was instrumental in his losing his jobs be-
cause he could get no "book." In 1943 Yearwood joined the Amalgamated Street
Railway Union and in 1945 , by concealing his connection with Local 107, he
became a member of Local 470 from which Union he took a transfer card in 1950.
MURPHY'S MOTOR FREIGHT, INC. 535'
He again attempted to ' get into Local 107 'by using his transfer card but was
again denied membership and again lost his job because he had no membership in
Local 107.
Regarding Yearwood 's job with the Respondent Employer which he obtained in
1952. The Respondent Employer was under contract with Local 107. Membership
within 30 days after hiring was required by the contract , however, Local 107 did
not seek to enforce the contractual membership condition as to Yearwood until
August 9, 1954 . All the other nonunion member drivers of the Respondent Em-
ployer, men who had been employed by the Respondent Employer since 1950, 1951,
1953 , and 1954, were also not asked to affiliate until August 9, 1954.
Similar to an army organization, Local 107 does not tolerate deserters from its
ranks.
It is the contention of Local 107 that inasmuch as Yearwood had not formally
quit the Union he remained and still is a member, his dues accumulating as a debt
due Local 107 . According to Local 107 , Yearwood is a member, but a member
in suspended status, without the right to participate in union affairs , until the
suspension is lifted by the full payment of his arrears in dues.
The Trial Examiner is persuaded that as long as the Union 's rules only affect
union membership the argument made by Local 107 is valid under the Act, but
the Trial Examiner also believes that if the Union 's membership rules are used to
cut off a worker 's livelihood by being applied unequally as to payments of fees and
dues, the argument is not valid.
First , the Trial Examiner is convinced that Local 107 was not under any obliga-
tion to extend full membership to Yearwood and was likewise under no obliga-
tion to accept his Local 470 transfer card.
Second , Yearwood became subject to the provisions of the contract between the
Respondent Employer and Local 107 only after he was employed by the Respondent
Employer and was thereafter bound to seek membership in Local 107 and if this were
denied him to tender regular dues at dues paying times.
Cariola admitted that he waived union membership for the Respondent Em-
ployer 's nonmember drivers until August 9, 1954 , therefore Local 107 can hardly
be heard to say that Yearwood was at fault in not tendering dues. When asked
to seek membership Yearwood gave Cariola his transfer card from Local 470 to-
gether with a month 's dues; he did not give Cariola an initiation fee. He was
not asked for it . The transfer card was worthless and it is clear that had he
tendered an initiation fee, the tender would have been futile.
Assuming that Yearwood was and is a member of Local 107 in suspended status,
has -the Union the right to cause him the loss of his job with an employer under
contract because he has not paid a valid debt which accrued prior to his employ-
ment and -before he came under the provisions of the contract between Local 107
and the Respondent Employer ? The Trial Examiner is of the opinion that Local
107 does not have such right.
In a very similar case 8 the Board held that a union could not lawfully procure the
discharge of member who failed to pay obligations incurred before his employ-
ment on the theory that dues and fees whose payment was obligatory under its
contract with the employer were not being made . The Board adopted the Trial
Examiner 's report which read:
The Respondent Union 's position is untenable, for by seeking to compel the
payment of an obligation which antedated the "union -security" agreement which
bound Keresty , and by applying payments intended him as his current dues, not
to the account specified but to the old arrears account , thereby not putting
him in good standing , the Respondent Union has violated Section 8 (b) (1) (A)
and (b ) ( 2) of the Act.
The Board affirmed its ruling in the Cottman case in Hargis Truck Line, Inc.,
108 NLRB 229.
Local 107 demanded Yearwood 's discharge by the Respondent Employer for the
reason that he owed "back dues ," telling the Respondent Employer in the words
of Union Steward Cariola, "He wouldn 't be allowed to work until his dues would
be paid off."
The Respondent Employer discharged Yearwood without seeking further ex-
planation from either the Union or Yearwood.
The Trial Examiner finds that by its action , as above set out, Local 107 was in
violation of the provision of the Act against causing or attempting to cause an
employer to discriminate against an employee with respect to whom membership
' Cottman Builders Supply Co ., Inc., 101 NLRB 327.'
379288-56-vol. 113-35
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has been denied on some ground other than failure to pay periodic dues uniformly
required as a contractual condition of employment.
The Trial Examiner finds that by discharging Yearwood at the demand of Local
107 the Respondent Employer violated,the Act which guarantees against discrimina-
tory discharges.
Concluding Findings
The Trial Examiner therefore finds on all the evidence considered as a whole,
and his observation of the witnesses, that the Respondent Employer at the request
of Local 107 discharged Paul C. Yearwood on August 13, 1954, and thereafter
refused him further employment until such time as he should obtain reinstatement
to active membership in the Union. This conduct of the Respondent Employer
constituted discrimination as to his hire and tenure of employment, encouraging
membership in the Local 107, and interfering, restraining, and coercing him in the
exercise of the rights guaranteed in the Act, contrary to the provisions of Section 8
(a) (3) and (1) of the Act. The conduct of Local 107 in causing the Respondent
Employer so to discriminate and thereby to restrain and coerce Yearwood in the
exercise of rights guaranteed by Section 7 of the Act, was violative of Section 8 (b)
(2) and (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents (Murphy's Motor Freight, Inc., and Local 107)
described in section III, above, occurring in connection with the operations of Re-
spondent Employer set forth 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, as above named, and each of them have
engaged in and are engaging in certain unfair labor practices, it will be recommended
that they cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent Employer unlawfully discharged Paul C.
Yearwood and having found that Local 107, the Respondent Union, unlawfully
procured the said discharge, the Trial Examiner will recommend that the Respondent
Employer make Yearwood whole for any loss of pay he may have suffered from
the date of his unlawful discharge to the date of the Respondent Employer's offer
of reinstatement,9 such losses of pay shall be computed in accordance with the
Woolworth formula,1° and further inasmuch as it has been found that both Re-
spondents, Local 107 and the Respondent Employer, are responsible for the dis-
crimination suffered by Yearwood, it will be recommended that they jointly and
severally make him whole for any loss of pay he may have suffered by reason of
the discrimination against him.
It has been found that Respondent Local 107 has engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the Act. It will,
therefore, be recommended that Respondent Local 107 cease and desist therefrom
and take certain affirmative action in order to effectuate the purposes of the Act.
Moreover, the Trial Examiner believes that a broad order is required to prevent
the recurrence -of similar unlawful conduct by the Union in the future. In order,
therefore, to make effective the interdependent guarantees of Section 7, to prevent a
recurrence of unfair labor practices, and thereby minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the Act, the
Trial Examiner recommends that Respondent Local 107 cease and desist from in
any manner infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Murphy's Motor Freight, Inc., Philadelphia, Pennsylvania, is engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
2. Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, is a labor organization within the meaning of
9 CroBsett Lumber Co., 8 NLRB 440.
'OF. W. Woolworth Company, 90 NLRB 41.
SOUTHERN STATES EQUIPMENT CORPORATION 537
Section 2 ( 5) of the Act and admits employees of the Respondent Employer to
membership.
3. By discriminating with respect to the hire and tenure of employment of
Paul C . Yearwood , thereby encouraging membership in Local 107, the Respondent
Employer has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (3) of the Act and also of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
5. By causing the Respondent Employer to discriminate against an employee in
violation of Section 8 (a) (3) of the Act , Local 107 has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of rights guaranteed
by Section 7 of the Act, Local 107 has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A ) of the Act.
7. 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.]
Southern States Equipment Corporation and Patternmakers'
Association of Atlanta and Vicinity , Patternmakers ' League of
North America, AFL, Petitioner . Case No. 10-RC-3098. August
9,1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John C. Carey, Jr., hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks to sever from an existing production and main-
tenance unit at the Employer's Hampton, Georgia, plant, all employees
classified as patternmakers, patternmakers advanced, patternmaker
repairmen, pattern shop helpers, and pattern shop handymen who are
assigned to the pattern shop and spend their time exclusively in the
making and alteration of patterns. The Employer and the Intervenor
contend that this unit is inappropriate, and the Intervenor moves that
the petition be dismissed. The motion to dismiss is denied for the
following reasons-
I International Association of Machinists, Lodge No. 1314, AFL, was allowed to inter-
vene on the basis of its current contractual interest.
113 NLRB No. 57.