Pacific Intermountain Express Co.

National Labor Relations Board - Board Decisions

Jan 14, 1954

107 N.L.R.B. 837 (N.L.R.B. 1954)

PACIFIC INTERMOUNTAIN EXPRESS COMPANY 837
this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended
Act We will not discriminate in regard to the hire or tenure of employment or any term
or condition of employment against any employee because of membership in or activity
on behalf of any such labor organization
BAUSCH & LOMB OPTICAL COMPANY,
Employer
Dated ... . By . ....
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered.
defaced , or covered by any other material
PACIFIC INTERMOUNTAIN EXPRESS COMPANY and CARLOS
BEALL
PACIFIC INTERMOUNTAIN EXPRESS COMPANY and PAUL
DUNBAR
PACIFIC INTERMOUNTAIN EXPRESS COMPANY and ALVIN
CHATBURN
PACIFIC INTERMOUNTAIN EXPRESS COMPANY and J. M.
NIEHAUS
PACIFIC INTERMOUNTAIN EXPRESS COMPANY and WILLIS
BRADSHAW
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS , WAREHOUSEMEN & HELPERS OF AMERICA,
Over -the-Road and City Transfer Drivers , Helpers, Dock-
men & Warehousemen , Local No. 41, AFL and CARLOS
BEALL
INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
Over-the-Road and City Transfer Drivers, Helpers, Dock-
men & Warehousemen , Local No. 41, AFL and PAUL DUNBAR
INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
Over -the-Road and City Transfer Drivers, Helpers, Dock-
men & Warehousemen , Local No. 41, AFL and ALVIN
CHATBURN '
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
Over - the-Road and City Transfer Drivers , Helpers, Dock-
men & Warehousemen , Local No. 41, AFL and J.M. NIEHAUS
107 NLRB No. 158.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
Over-the-Road and City Transfer Drivers, Helpers, Dock-
men & Warehousemen, Local No. 41, AFL and WILLIS
BRADSHAW. Cases Nos. 17-CA-535,17-CA-536,17-CA-537,
17-CA-541, 17-CA-583, 17-CB-64, 17-CB-65, 17-CB-66,
17-CB-68, and 17-CB-79. January 14, 1954.
DECISION AND ORDER
On April 29, 1953, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled consolidated pro-
ceedings, finding that the Respondents, Pacific Intermountain
Express Company, herein called the Respondent Company or
the Company, and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Over-the-
Road and City Transfer Drivers, Helpers, Dockmen & Ware-
housemen, Local No. 41, AFL, herein called the Respondent
Union or the Union, had engaged in and were engaging in
certain unfair labor practices, and recommending that they
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent
Company had not engaged in certain other alleged unfair labor
practices, and recommended dismissal of those allegations of
the complaint. Thereafter, the Respondent Company, the
Respondent Union, and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs. The Re-
spondent Company and the Respondent Union also requested
oral argument. This request is hereby denied because, in our
opinion, the record,' the exceptions, and the briefs adequately
present the issues and the positions of the parties.
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 briefs,
and the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the Trial
Examiner to the extent indicated below and with the following
additions and modifications:
1. We find, in agreement with the Trial Examiner, that the
Respondent Company discriminated against Carlos Beall, Paul
Dunbar, Alvin Chatburn, J. M. Niehaus, and Willis Bradshaw
in violation of Section 8 (a) (3) and 8 (a) (1) of the Act.
For the past 9 years, the Company, which is engaged in the
transportation of commodities by motor carrier, has recog-
nized the Union and the Central States Drivers Council as the
exclusive representative of the over-the-road drivers em-
1 The Board has corrected the record in accordance with the "Stipulation to correct
Transcript" filed by the parties.
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 839
ployed at its Kansas City, Missouri, terminal , pursuant to the
"Central States Area Over- the-Road Motor Freight Agree-
ments," which cover several thousand employers and various
Teamsters locals in a 12 State area .2 The contract executed
by the Respondents on November 12, 1949, to be effective
from November 16, 1949, until January 31, 1952, contained,
in addition to a deferred union- security provision , the following
provisions:
Article V. Seniority rights for employees shallprevail
Seniority . . . . . A list of employees arranged in the
Section 1. order of their seniority shall be posted in a
conspicuous place at their place of employ-
ment. Any controversy over the seniority
standing of any employee on this list shall
be referred to the Union for settlement.
Section 3 .(a) All runs and new positions are subject to
seniority and shall be posted for bids . . .
When it becomes necessary to reduce the
working force , the last man hired shall be
laid off first, and when the force is again
increased , the men are to be returned to
work in the reverse order in which they are
laid off . ( Emphasis supplied.)
On January 31, 1952 , the Respondents executed another con-
tract, effective from February 1, 1952, until January 31, 1955.
This contract contains seniority provisions similar to those in
the preceding contract . Article V, however, was amended in
the respect underscored below:
Article V. . . . . Any controversy over the seniority
Seniority . standing of any employees on this list shall
Section 1 . be referred to the Union for settlement.
Such determination shall be made without
regard to whether the employees involved
are members or not members of a Union.
The Company operates a set number of regularly scheduled
runs on four main routes from its Kansas City terminal. Pur-
suant to the contracts set forth above, these runs , commonly
referred to as "bid runs ," are posted for bidding at least
once a year and are awarded solely on the basis of the seniority
of the employees bidding . In addition to these regularly
scheduled runs, the Company also operates runs to take care
of any overflow business , and maintains an "extra board"
2 The Respondent Company has been represented in the negotiations and execution of
these contracts by the Central States Area Employers Association , of which it is a member.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
listing the names of the drivers operating these extra runs.
Unlike the regular runs, extra runs are not subject to bidding.
Employees who do not obtain regular runs, either because
they do not possess enough seniority or, for some reason, fail
to submit bids, are automatically placed on the extra board.
From 1946 until November 1951, extra runs were assigned
among the employees on the extra board on a rotation basis.
In November 1951, however, pursuant to an agreement between
the Respondents, the Company began to operate the extra
board on a seniority basis . In April or May 1952, at the
request of the Respondent Union, the Company reverted to a
rotation system in the assignment of extra runs and, in July
1952, also upon the request of the Union, changed back to a
seniority system. At the time of the hearing, extra runs were
being assigned by the Respondent Company on the basis of
seniority.
Although both the 1949 and 1952 contracts between the Re-
spondents provide merely that "controversies" with respect
to seniority shall be referred to the Union for settlement, it
is clear, as the Trial Examiner found, that the Respondent
Union actually determined the seniority standing of all em-
ployees covered by these agreements. Thus, the seniority lists
which were posted by the Company at its terminal and which,
pursuant to the Respondents' contracts, were utilized by the
Company in effecting reductions in force and in the assignment
of regular runs and of extra runs during the periods when the
extra board was operated on a seniority basis, were those
prepared by the Union and not those originally prepared by the
Company on the basis of the dates of employment of the em-
ployees listed. Further, the record reveals, as the Trial Ex-
aminer found, that the Respondent Union, in preparing its
seniority lists, established the seniority dates of employees
who were not members of the Union when hired as of the date
upon which they became members of the Union rather than as
of the date of their employment;3 with respect to those em-
ployees who were members of the Union when hired, however,
their seniority was established as of the date of their employ-
ment by the Company.
3 The Union admits that, pursuant to a rule of 15 years' standing, it had, until April 21,
1952, fixed the seniority of employees transferring from another Teamsters local as of
the date they effected their transfer to the Respondent Union, rather than as of the date
of their employment This policy was changed by the Union on April 21, 1952, and, since
that date, the Union has established the seniority of employees transferring from another
Teamsters local as of the date of their employment by the Company. The Union also ad-
mits that, pursuant to the international constitution, the seniority of employees on with-
drawal cards from the Respondent Union dated--and still dates- -from the time that they
deposited their withdrawal cards with the Union and not from the date of their employ-
ment. The seniority lists in evidence further reveal, as the. Trial Examiner found in dis-
crediting the contrary testimony of the president of the Respondent Union, that the Union
fixed the seniority of those employees who were not members of the Union when hired
and who were not on transfer or withdrawal cards, as of the date of their initiation into
membership rather than as of the date of their employment by the Company.
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 841
As a result of the Union's methods of determining seniority
and the Company's utilization of the Union's seniority lists in
assigning runs and in making layoffs , each of the charging
parties herein was adversely affected in his employment.
Chatburn, Dunbar, 4 Niehaus, and Beall, all members of other
Teamsters locals, transferred to the Respondent Union after
being employed by the Respondent Company, and each was
assigned a seniority date later than the date of his employment.
Bradshaw was on a withdrawal card from the Respondent Union
and was assigned a seniority date as of the date he deposited
his withdrawal card, 3 days after he was hired. Thus, em-
ployees who were hired after the charging parties were em-
ployed by the Company, but who became members of the Re-
spondent Union earlier, were accorded a higher rank on the
seniority lists posted at the Company's terminal and, pursuant
to the Respondents' contracts, were given preference in re-
ductions in force, in the assignment of regular runs, and in
the assignment of extra runs during the periods when the extra
board was operated on a seniority basis.
On the basis of these facts, we conclude, in accord with the
conclusion of the Trial Examiner, that the Respondent Company
discriminatorily enforced the seniority provisions of its 1949
and 1952 contracts with the Respondent Union and thereby
discriminated against each of the charging parties in violation
of Section 8 (a) (3) and 8 (a) (1) of the Act. As set forth above,
these contracts provided that "all runs and new positions"
would be subject to seniority and that reductions in the work
force would be made according to seniority.s In addition, be-
ginning in mid-November 1951, the assignment of extra runs
was also made subject to seniority, pursuant to an agreement
between the Respondents, and these runs continued to be as-
signed on the basis of seniority until April or May 1952. In
determining seniority, however, the Company gave effect to the
Union's decisions, which were, in turn, based, not on the dates
of employment of the employees involved, but on the dates upon
which they became members of, or renewed their membership
in, the Respondent Union. Thus, the assignment of runs and the
determination as to which employees would be laid off were, in
effect, made on the basis of membership in the Union. The
effect of the Respondent Company's conduct, in making seniority
the determinative factor in the assignment of jobs and, in
making seniority dependent upon union membership, was to
4Although Dunbar had been a member of another Teamsters local in Des Moines, Iowa,
he was delinquent in his dues at the time of his employment by the Company. In order to
become a member of the Respondent Union sooner, he paid a reinstatement fee to the Re-
spondent Union instead of paying up his back dues in the Des Moines local and then trans-
ferring to to Respondent Union.
5 Although article V, section 3 (a), of both contracts provides that the last man hired
shall be the first to be laid off, the evidence clearly shows that the determination as to
which employees were hired last was based upon the seniority lists posted at the Com-
pany's terminal.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
encourage and actually require employees to become members
of the Respondent Union as soon as they were hired.6 There-
fore, even during the period when there were valid union-
security provisions in effect,? these provisions did not protect
the Company's conduct, which required employees to become
members of the Union immediately after they were hired,
rather than according them the 30-day grace period provided
for in the proviso to Section 8 (a) (3) of the Act.
Although we agree with the Trial Examiner's conclusionthat
the Respondent Company unlawfully discriminated against all
the charging parties with respect to work assignments, we
cannot adopt his conclusion that the Company further discrim-
inated against Carlos Beall and Willis Bradshaw by con-
structively discharging them on August 1, 1952, and August 21,
1952, respectively. The complaint herein does not allege any
constructive discharge and this issue was not litigated at the
hearing. Indeed, the General Counsel made no contention that
the Company had constructively discharged Beall and Bradshaw
until he submitted his brief to the Trial Examiner.' In view of
these facts, we deem it unnecessary to determine whether, if
6 The record reveals that unless an employee became a member of the Union, his name
did not appear on the seniority list posted at the terminal. Therefore, he could not be eli-
gible for a scheduled run or, during the periods when the extra board was operated on a
seniority basis, for any job at all. The record also reveals that the Company informed
employees when they were hired, or shortly thereafter, that their seniority would be de-
termined by the Union and 'would date from the time that they became members in good
standing of the Union.
The decision of the court of appeals in N L. R B. v. Teamsters, 196 F. 2d 1 (C A. 8),
cert granted 344 U. S. 853, relied upon by the Respondent Company in support of its con-
tention that the Respondents' conduct could not have encouraged or discouraged member-
ship in any labor organization, is clearly inapposite. There, the court, in denying enforce-
ment of the Board's order in International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Over-the-Road and City Transfer Drivers, Helpers,
Dockmen and Warehousemen, Local Union No. 41, A. F L. (Byers Transportation Com-
pany, Inc.), 94 NLRB 1494, held that the reduction in seniority of an employee resulting
from the application of a seniority clause in a contract and his consequent loss of work
assignments did not encourage or discourage membershipinthe union where the employee in-
volved was already a member of the union and, in the absence of a valid union-security agree-
ment , was not required to become or remain a member of the union. The instant cases,
however, unlike the Byers case, do not involve a union's application of a seniority clause solely
to its own members. As the Respondent Union was applying the seniority provisions of the
contracts involved herein to both members and nonmembers and was, indeed, granting
preference in seniority determinations to employees who were already members in good
standing of the Union, it is clear that the Company's action, in assigning jobs on the basis of
such seniority determinations, did encourage membership in the Respondent Union.
7 The Respondents' current contract effective February 1, 1952, contains valid union-
security provisions, while the 1949 contract had a deferred union-security clause, which
was to become effective only after an election and certification pursuant to former Section
9 (e) (1) of the Act.
However, in view of our finding above, it is unnecessary to pass upon the Trial Exami-
ner's finding that the union-security clause in the 1949 contract "became lawful when the
Act was amended on October 22, 1951."
8 The Trial Examiner stated that the General Counsel had contended that Beall and Brad-
shaw were constructively discharged on August 1 and August 21, 1952, respectively. Al-
though the General Counsel did make such a contention in his brief to the Trial Examiner,
no such allegation was made in the complaint nor was this contention made at the hearing.
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 843
this issue had been alleged and litigated, the facts would sup-
port the Trial Examiner's conclusion that Beall and Bradshaw
were constructively discharged.9 Under the circumstances, we
conclude that, although they were discriminated against with
respect to work assignments , Beall and Bradshaw voluntarily
quit work on August 1, 1952, andAugust2l, 1952, respectively.
2. We also find, in accord with the conclusion of the Trial
Examiner, that the Respondent Union caused the Respondent
Company to discriminate against Beall, Dunbar, Chatburn,
Niehaus, and -Bradshaw, and that the Union thereby violated
Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
As set forth above, the Company and the Union were parties
to contracts which provided that controversies with respect to
the seniority standings of employees would be referred to the
Union for settlement and that jobs would be awarded on the
basis of seniority. Furthermore, these contracts were enforced
by the Respondents in such a manner that the Union actually
determined the seniority standings of the Company's employees
and made such determinations on the basis of the employees'
membership in the Respondent Union. Indeed, indiscriminating
against the charging parties with respect to work assignments,
the Company was giving effect to these contracts and to the
seniority determinations of the Respondent Union. Accordingly,
we conclude that the Respondent Union, by being a party to the
1949 and 1952 contracts and to the discriminatory enforcement
of the seniority provisions thereof, became jointly responsible
with the Respondent Company for the acts of discrimination
resulting from the enforcement of these provisions."
We find no merit in the Respondent Union's contention that,
even though, pursuant to the contracts set forth above, sen-
iority was the basis for the assignment of jobs, the Union's
determinations with respect to the seniority of employees on
transfer or withdrawal cards were protected by the proviso to
Section 8 (b) (1) (A) of the Actbecause the contracts were made
pursuant to the rules and bylaws of the International and the
Union. The Board has consistently held that this proviso does
not protect conduct which would otherwise be violative of the
Act merely because such conduct was taken pursuant to union
regulations." Moreover, the record reveals, and we have
found, that the Union also discriminatorily determined the
seniority of employees who were not members of the Union
and were not on transfer or withdrawal cards and who were
therefore not subject to the Union's or the International's rules
and bylaws. Accordingly, we reject the Union's contention that
its seniority determinations were protected by the proviso to
Section 8 (b) (1) (A) of the Act.
9 Hunter Engineering Company, 104 NLRB 1016,
10 Utah Construction Co., et al , 95 NLRB 196.
11 Utah Construction Co., et al., footnote 10, supra; Sub Grade Engineering Company, 93
NLRB 406; Byers Transportation Company, Inc., footnote 6, supr.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Trial Examiner failed to find, as alleged in the com-
plaint, that the Respondent Company violated Section 8 (a) (2)
of the Act by discriminatorily enforcing the seniority pro-
visions described above of the 1949 and 1952 contracts with the
Respondent Union. The General Counsel has excepted to the
Trial Examiner's failure to make such a finding.
As set forth above, in discussing the Company's discrimina-
tion against the charging parties, the Company enforced the
seniority provisions of the 1949 and 1952 contracts in such a
manner as to require employees to become members of the
Union as soon as they were hired. We have found that the
Company, in so doing, violated Section 8 (a) (3) and 8 (a)(1) of
the Act. As the Respondent Company thereby lent its support
to the Respondent Union in recruiting the latter's membership
at a time when, under the Act, the employees were free to
refrain from joining the Union, we conclude that the Company
also violated Section 8 (a) (2) by its discriminatory enforce-
ment of these seniority provisions.'
4. We also find, unlike the Trial Examiner, that the Re-
spondent Company further violated Section 8 ( a) (1), 8 (a) (2),
and 8 (a) (3) of the Act and that the Respondent Union further
violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act by main-
taining and enforcing their 1949 contract and by entering into,
maintaining, and enforcing their 1952 contract.
As mentioned above, both the 1949 contract and the current
contract between the Respondents contain almost identical
seniority provisions, delegating to the Union the authority to
settle controversies relating to seniority, except that the 1952
contract provides that, in determining such controversies, the
Union shall do so "without regard to whether the employees
involved are members or not members of the Union." By both
contracts, therefore, the Respondent Company delegated to the
Respondent Union complete control over the determination of
seniority; and seniority, in turn, was made the determinative
factor in the assignment of jobs and making layoffs. Thus the
Company in effect delegated to the Union complete authority
in both instances to determine work assignments and reduc-
tions in force.
In Firestone Tire and Rubber Company, 13 which also involved
the Respondent Union, the Board was called upon to determine
the legality of a seniority provision identical to that in the
Respondents' 1949 contract. The Board there held that such a
provision did not violate the Act because "the seniority pro-
vision, although permitting the Union to control seniority to
some extent, [did] not on its face provide that the Union should
do so because of union affiliation." Seemingly because of the
Board's decision in the Firestone case , the General Counsel
has not alleged in the instant proceedings that the seniority
12 Mundet Cork Corporation, et al , 96 NLRB 1142; Sterling Furniture Company, 94 NLRB
32
1393 NLRB 981 (Member Reynolds concurring).
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 845
provisions of the Respondents' contracts are violative of the
Act. The complaint does allege, however, that the Respondents
discriminatorily enforced these provisions in. violation of
Section 8 (a) (1), 8 (a) (2),8(a) (3), 8 (b) (2), and 8 (b) (1) (A) of
the Act. Moreover, the Respondents have relied upon these
seniority provisions and upon the Board's decision thereon in
the Firestone case as a defense to the discriminations alleged
herein. Accordingly, we find that the legality of the seniority
provisions of both the 1949 and 1952 contracts has been put in
issue.'4
Upon consideration of the legal effect of the seniority pro-
vision in the Firestone case, and upon analysis of the Re-
spondents' 1949 contract which includes an identical seniority
provision, we believe that such a provision is itself violative
of the Act, even though it does not on its face provide that the
union shall make its seniority determination on the basis of
union affiliation. Accordingly, insofar as the Firestone case
holds to the contrary, it is hereby overruled. We also find that
the seniority provision of the Respondents' 1952 contract is
similarly violative of the Act, even though it specifically pro-
vides that the Union shall make its seniority determinations
"without regard to whether the employees involved are mem-
bers or not members of a Union."
The objective standards relevant to a determination of sen-
iority generally derive from the employment history of the
employees involved, and that information is, as a rule, pe-
culiarly within the knowledge of the employer. Indeed, the area
in which the union is likely to be more informed than the em-
ployer with respect to the employer's employees is that per-
taining to employees' union membership or to the employees'
compliance with the union's constitution, bylaws, or other
regulations --subjects, however, which obviously are not rele-
vant considerations in the implementation of a seniority
provision. We can therefore see no basis for presuming that
when an employer delegates to a union the authority to de-
termine the seniority of its employees, or even to settle con-
troversies with respect to seniority, such control will be
exercised by the union in a nondiscriminatory manner. Rather,
it is to be presumed, we believe, that such delegation is in-
tended to, and in fact will, be used by the union to encourage
membership in the union. Accordingly, the inclusion of a bare
provision, like that in the 1949 contract, that delegates com-
plete control over seniority to a union is violative of the Act
because it tends to encourage membership in the union. And
because we believe that it will similarly tend to encourage
membership in the union, we also conclude that, the inclusion
of a statement, like that in the 1952 contract, that seniority
will be determined without regard to union membership is not
by itself enough to cure the vice of giving to the union complete
14Cf Green Bay Drop Forge Co., 95 NLRB 399 at 400.
337593 0 - 55 - 55
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
control over the settlement of a "controversy " with respect
to seniority.
5. The General Counsel has excepted to the Trial Examiner's
failure to find, as alleged in the complaint , that since April 15,
1952, both the Company and-the Union have denied the charging
parties their seniority rights because they filed charges or
gave testimony to the Board, and that the Respondent Company
has thereby violated Section 8 (a) (4) of the Act. Although we
agree with the Trial Examiner ' s conclusion that the Company
has not violated Section 8 ( a) (4), we cannot adopt his reasons
for this conclusion.
The record reveals, and the Trial Examiner found, that one
of the charging parties, Chatburn, was informed by a union
steward that the Union would not process his grievance with
respect to his rank on the seniority list because Chatburn had
filed a charge with the Board. The record further reveals that,
after the filing of charges herein, " the Respondent Union, on
April 21, 1952, changed its policy with respect to determining
the seniority of employees transferring to the Union and, since
that time, has established the seniority of newly hired em-
ployees as of the date of their employment rather than as of
the date of their transfer, as it had previously done. At the time
of the hearing, however, the seniority dates of the charging
parties who had previously transferred to the Unionhad not yet
been corrected.
The Board has often held that when an employer delegates to
a union the authority to control conditions of employment, it
becomes responsible for the discriminatory manner in which
the union exercises such authority.' However , the Union's
statement to Chatburn with respect to processing his grievance
clearly did not fall within the scope of its authority to settle
controversies over, or to determine initially, the seniority
standings of the Company's employees. Accordingly, we can
perceive no basis for holding that the Company was responsible
for the Union's statement to Chatburn and that it thereby
violated Section 8 ( a) (4) of the Act.
The General Counsel asserts that its statement to Chatburn
is evidence of the fact that the Union's failure to change the
seniority dates of the charging parties in conformity with the
Union's new seniority policy applicable to transferees, was a
retaliation for their having filed charges with the Board, and
that the Company is responsible for the Union's failure to
correct the seniority dates of these employees . It appears that
the Union was acting within the scope of its authority under the
contracts, as interpreted by the Respondents, when it failed
to change the seniority dates of the charging parties, and it
would appear further that were the Union to be found to have
is The first charge herein was filed on April 14, 1952.
"Sub Grade Engineering Company, footnote 11, supra; Air Products, Incorporated, 91
NLRB 1381
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 847
acted discriminatorily in failing to change these dates, the
Company would be responsible therefor . However, except for
the Union ' s statement to Chatburn , there is no evidence to
show that the Union , in failing or refusing to correct these
seniority dates, was motivated , as the General Counsel asserts,
by the fact that the employees involved hereinhad filed charges.
On the contrary , the evidence shows that , although the Union
did adopt a new method of determining the seniority of
transferees on April 21, 1952 , it did not revise any of the
seniority determinations it had previously made on the basis
of its old policy , 17 but continued in effect the discriminatorily
established seniority dates of all employees who had trans-
ferred to the Respondent Union before April 21, 1952. As the
Union did not limit its conduct in this respect to the charging
parties, we find, despite the Union ' s statement to Chatburn,
that the Union ' s failure to correct the seniority dates of the
charging parties was not caused by the fact that they had filed
charges under the Act . 18 Accordingly , we conclude that, by
continuing to give effect to these seniority dates , the Company
did not violate Section 8 (a) (4) of the Act.
6. We also conclude , in accord with the Trial Examiner,
that the Respondent Company did not violate Section 8 (a) (2)
of the Act by deducting from the wages of its employees, at
the request of the Union , a $2 "over-the - road assessment"
in February 1952.19
The record reveals that in February 1952 , the Company
deducted from the wages of those employees who had signed
written authorizations for dues deductions , $ 2 in addition to
the regular dues deducted. Apparently , this $ 2 is levied annually
by the Central States Drivers Council as an "over - the-road
assessment ," in return for which each employee paying this
"assessment" receives a road driver's card entitling him to
benefits in the Central States Drivers Council . The Trial
Examiner found that the Company viewed the amount levied by
the Council , which the Company deducted from the wages of
its employees and remitted to the Respondent Union, not as an
assessment , but as annual dues to the Council. He therefore
concluded that, as the Company merely deducted "uniform
dues" from the wages of its employees , it had not thereby
violated Section 8 ( a) (2) of the Act.
17 The only changes reflected in the seniority lists issued after April 21, 1952 , relate
to the seniority of two employees , Alan Babb and Daniel Oldfield. The change in Babb's
seniority, from July 7, X950, to July 18, 1950 , could not have been based on the Union's
revised policy as his seniority was lessened by the Union's change. Oldfield's seniority
date was changed from February 10, 1947, to February 20, 1946, on both the list prepared
by the Company and that prepared by the Union in November 1952, apparently as a re-
sult of a hearing held by the Union in October 1952.
i$See Dolores , Inc., 98 NLRB 550.
19 Board Member Rodgers would find that the Respondent violated the Act by deducting
the "over- the-road assessment ." In his opinion, the deduction constituted "dues" within
the meaning of Section 302 and, as no authorizations had been made therefor , the employees
were necessarily coerced thereby and the Union unlawfully supported.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unlike the Trial Examiner , we deem it unnecessary to de-
termine whether the amount deducted by the Company repre-
sented dues or assessments . The Board has previously held
that in determining whether checkoff violates Section 8 of the
Act, the limitations on checkoff imposed by Section 302 of the
Act should not be considered . " Therefore , unless the Company
coerced its employees into paying the "over-the - road assess-
ments," there is no basis for holding that the Company
violated Section 8 ( a) (2) by making these deductions , whether
the deductions represented dues or assessments . 21 The General
Counsel has not alleged that the employees were coerced into
making these payments, and the only evidence of coercion is
the fact that the employees had not signed any written authori-
zations for this extra $ 2 deduction . " However , as the em-
ployees apparently voiced no objection to the Company's
deducting the $2 "over -the-road assessment" from their
wages , we believe that the mere fact that they had not signed
any written authorizations therefor is insufficient to show that
they were coerced into agreeing to such deductions . Accord-
ingly, we conclude that the Company did not violate Section 8
(a) (2) by making these deductions from the wages of its em-
ployees.
THE REMEDY
Having found that the Respondent Company and the Respondent
Union have engaged in certain unfair labor practices, we shall
order them to cease and desist therefrom and to take affirma-
tive action necessary to effectuate the policies of the Act.
We have found , in agreement with the Trial Examiner, that
the Respondent Company discriminated against Carlos Beall,
Paul Dunbar , Alvin Chatburn , J. M. Niehaus , and Willis Brad-
shaw in violation of Section 8 (a) (3) and 8 ( a) (1) of the Act,
and that the Respondent Union caused the Company to do so in
violation of Section 8 (b) (2) and 8 ( b) (1) (A) of the Act. The
Trial Examiner , however, did not recommend that the Re-
spondents make whole all the charging parties for the loss of
pay suffered by them as a result of such discrimination. With
respect to Beall and Bradshaw, who had left their work on
August 1, 1952 , and August 21, 1952, respectively , the Trial
Examiner found that the Company had "constructively dis-
charged" them and recommended their reinstatement and back
pay from the dates of their discharges . The Trial Examiner
also found that the Company's utilization of the Union's sen-
iority determinations in assigning runs had adversely affected
the work assignments of the other charging parties , but con-
20Salant & Salant, Inc., 88 NLRB 816 at 817.
21Salant & Salant, Inc ., footnote 20, supra.
22 As the employees had specifically authorized the Company to deduct $4 a month for
dues to the Union, the Company's deduction of the additional $2 exceeded the amount speci-
fied in the employees ' written authorizations.
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 849
cluded that "the evidence in this connection [ was] speculative,
and-not sufficiently definite " to afford a basis for a`recom-
mendation that they be made whole . The General Counsel has
excepted to his failure to recommend that the Respondents
make whole Chatburn , Dunbar , and Niehaus , and to his failure
to include in his recommendation that Beall and Bradshaw be
made whole , the period from November 21, 1951 , until the
dates of their "constructive " discharges.
As set forth above , we do not agree with the Trial Examiner's
conclusion that the Company constructively discharged Beall
and Bradshaw . Indeed, we have found, on the record before us,
that Beall and Bradshaw voluntarily quit work on August 1,
1952, and August 21, 1952, respectively . Accordingly , we shall
not order their reinstatement and shall order that the Re-
spondents ' liability for back pay due Beall and Bradshaw be
terminated as of the dates upon which they voluntarily left the
Company's employ.
We also find merit in the General Counsel ' s exception to the
failure of the Trial Examiner to recommend that the Re-
spondents make whole Chatburn , Dunbar , and Niehaus from
mid-November 1951 until compliance with the Board ' s order,
and to his failure to recommend that Beall and Bradshaw be
made whole from mid-November 1951 until August 1, 1952, and
August 21 , 1952, respectively . As stated above , all the charging
parties were similarly discriminated against in the assignment
of runs . Contrary to the Trial Examiner ' s finding , the evidence
in this regard is far from speculative. Moreover, the mere fact
that it may be difficult to determine , on the record herein, the
precise amounts of back pay due is no basis for a denial of our
usual remedy!' Accordingly , we shall exercise our full re-
medial powers , but shall leave to the compliance stages of these
proceedings the determination of the precise amounts of back
pay due under our Order.
We shall therefore order the Respondent Company and the
Respondent Union, jointly and severally , to make whole all the
charging parties for any loss of pay suffered as a result of
the discrimination against them. The Regional Director is
hereby directed , however, to make every reasonable effort to
assure that the back-pay liability is borne equally by the
Respondents.
In accordance with the formula promulgated in F. W. Wool-
worth Company; and for the reasons stated therein, we shall
order that the loss of pay suffered by Chatburn , Dunbar, and
Niehaus be computed on the basis of each separate calendar
quarter or portion thereof during the period from the date of
23 Austin Company, 101 NLRB 1257; Stanislaus Implement and Hardware Company, Ltd.,
101 NLRB 394; New York Herald Tribune, Inc., 93 NLRB 419; The Hearst Consolidated
Publications, Inc., 93 NLRB 237.
24 90 NLRB 289.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discrimination against each, in mid-November 1951,25 until
the date of compliance with the Board's Order. As the Trial
Examiner did not recommend that the Respondents make whole
Chatburn, Dunbar, and Niehaus, the period from the date of
the Intermediate Report to the date of the Order herein shall,
in accordance with our usual practice, be excluded in com-
puting the amount of back pay awarded to them. 26 We shall also
order that the loss of pay suffered by Beall and Bradshaw be
computed in the manner set forth in the Woolworth case during
the period from the date of the discrimination against each,
in mid-November 1951, 21 until the date on which each of them
voluntarily quit work, in August 1952.
We have found that the Respondents' 1949 and 1952 contracts
contained seniority provisions violative of Section 8 (a) (1),
8 (a) (2), 8 (a) (3), 8 (b) (1) (A), and 8 (b) (2) of the Act and that
the Respondents discriminatorily enforced these provisions.
Accordingly, we shall order the Respondents to cease giving
effect to the unlawful seniority provisions of their collective-
bargaining agreements and to refrain from executing agree-
ments in the future containing such unlawful seniority provisions.
In view of all the circumstances,, including the fact that the
unlawful seniority provisions of the contracts herein are not
inseparable from or basic to the remaining provisions of the
contracts and the further fact that the contracts involved herein
apply not only to the Respondents, but to several thousand em-
ployers and various Teamsters locals in a 12-State area, 28 we
shall not order the Respondents to cease giving effect to their
entire contracts, nor shall we order the Company to withdraw
or withhold recognition from the Union.29
ORDER
Upon the basis of the entire record in these cases , and pur-
suant to Section 10 (c) of the National Labor Relations Act, as
25 None of the charging parties suffered any discrimination in work assignments until
mid-November 1951, when the extra board was put on a seniority basis, as, until that time,
none had been employed long enough to be eligible for a regular scheduled run. At least
one of the charging parties, Chatburn, was deprived of a regular run in the November 1951
and February 1952 biddmgs because of the Union's method of determining seniority Brad-
shaw was temporarily laid off in mid-November 1951 as a result of the Union's establish-
ing his seniority as of October 11, 1951, instead of as of the date of his employment, on
October 8, 1951, and he worked only sporadically after his layoff until his resignation on
August 21, 1952. In addition, all the charging parties were adversely affected by the change
from a rotating extra board to a seniority extra board in mid-November 1951.
26See Utah Construction Co., et al , footnote 10, supra.
27See footnote 25, supra
28 Cf. Sterling Furniture Company, 105 NLRB 653. As in the Sterling case, the Respondent
Company is a member of an employers' association, which represented the Company in
the negotiation and execution of the contracts involved herein.
29 The adoption of the usual order requiring the Company to cease giving effect to its
agreement with the Respondent Union and to withhold recognition from the Union as the rep-
resentative of its employees, unless and until that organization shall have been certified
by the Board (see Julius Resnick Inc., 86 NLRB 38), is discretionary with the Board. Such
remedy need not be applied where it would not effectuate the policies of the Act Construction
Specialities Company, 102 NLRB 1542.
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 851
amended, the National Labor Relations Board hereby orders
that:
1. The Respondent, Pacific Intermountain Express Company,
its officers, agents, successors, and assigns, shall:
(a) Cease and desist from:
(1) Performing or giving effect to the clauses in the contracts
of November 12, 1949, and of January 31, 1952, known as the
"Central States Area Over-the-Road Motor Freight Agree-
ments" to which the Respondents are parties and which cover
the employees at the Company's Kansas City, Missouri,
terminal, which clauses delegate to the Respondent Union
authority to settle controversies relating to seniority.
(2) Entering into or renewing any agreement with any
labor organization which contains provisions delegating to
such labor organization authority to determine the seniority
of employees or to settle controversies relating to seniority,
and enforcing such provisions.
(3) Encouraging membership in the Respondent Union, or
in any other labor organization of its employees, by failing and
refusing to assign work to its employees to which they would
have been entitled and assigned had their seniority been de-
termined as of the date of their employment by the Respondent
Company rather than as of the date of acquisition of union
membership, or by discriminating against them in any other
manner in regard to their hire or tenure of employment or
any term or condition of their employment, except to the
extent permitted by Section 8 (a) (3) of the Act.
(4) 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 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) Upon request, make available to the National Labor
Relations Board, or its agents, for examination and copying,
all payroll records, social-security payment records, time-
cards, personnel records and reports, and all other records
necessary to an analysis of the amounts of back pay due in
accordance with this Order.
(2) Post at its terminal in Kansas City, Missouri, copies
of the notice attached as Appendix A.30 Copies of the notice,
to be furnished by the Regional Director for the Seventeenth
Region as the agent of the Board, shall be posted by the
Respondent Company immediately upon their receipt, after
being duly signed by an official representative of the Company.
When posted, they shall remain posted for sixty (60) consecu-
3D In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "Pursuant to a Decision and Order," the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent Company
to insure that these notices are not altered, defaced, or
covered by any other material.
(3) Notify the Regional Director for the Seventeenth Region,
in writing, within ten (10) days from the date of this Order
what steps it has taken to comply herewith.
2. The Respondent , International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Over-the-
Road and City Transfer Drivers, Helpers, Dockmen & Ware-
housemen, Local No. 41, AFL, its officers, representatives,
agents , successors , and assigns , shall:
(a) Cease and desist from:
(1) Performing or giving effect to the clauses in the con-
tracts of November 12, 1949, and of January 31, 1952, known
as the "Central States Area Over-the-Road Motor Freight
Agreements" to which it is a party and which covers the em-
ployees at the Company's Kansas City, Missouri, terminal,
which clauses delegate to it authority to settle controversies
relating to seniority.
(2) Entering into or renewing any agreement with any em-
ployer which contains provisions delegating to it authority
to determine the seniority of employees or to settle contro-
versies relating to seniority, and enforcing such provisions.
(3) Causing or attempting to cause the Respondent Company,
its officers , agents, successors , or assigns , to discriminate
against employees in violation of Section 8 (a) (3) of the Act.
(4) In any other manner restraining or.coercing employees
of the Respondent Company in the exercise of the rights guaran-
teed 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 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) Post at its business offices and meeting halls in
Kansas City, Missouri, copies of the notice attached as
Appendix B.31 Copies of the notice, to be furnished by the
Regional Director for the Seventeenth Region as the agent of
the Board, shall be posted by the Respondent Union immediately
upon their receipt, after being duly signed by an official repre-
sentative of the Union. When posted, they shall be maintained
by it for a period of sixty (60) consecutive days thereafter.
Reasonable steps shall be taken by the Union to insure that
these notices are not altered, defaced, or coveredby any other
material.
(2) Mail signed copies of the notice attached to this report
as Appendix B to the Regional Director for the Seventeenth
Region, for posting, the Respondent Company willing, at the
31 See footnote 30, supra.
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 853
office and places of business of the Respondent Company, in
the places where notices to employees are customarily posted.
Copies of the notice to be furnished by the Regional Director
for the Seventeenth Region as the agent of the Board, shall be
returned forthwith to the Regional Director after they have
been signed by an official representative of the Union, for
such posting.
(3) Notify the Regional Director for the Seventeenth Region,
in writing, within ten (10) days from the date of this Order,
what steps it has taken to comply herewith.
3. The Respondents, Pacific Intermountain Express Com-
pany, its officers, agents, successors, and assigns, and Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Over-the-Road and City Transfer
Drivers, Helpers, Dockmen & Warehousemen, Local No. 41,
AFL, its officers, agents, successors, and assigns,, shall
jointly and severally, and in the manner set forth in the section
of this Decision and Order entitled "The Remedy," make whole
Carlos Beall, Paul Dunbar, Alvin Chatburn, J. M. Niehaus,
and Willis Bradshaw for any loss of pay each may have suffered
because of the discrimination against him.
IT IS FURTHER ORDERED that the complaint insofar as it
alleges a violation of Section 8 (a) (2) of the Act in the deduction
by the Respondent Company from the wages of its employees
of over-the-road assessments and insofar as it alleges a
violation of Section 8 (a) (4) of the Act be, and it hereby is,
dismissed.
Member Murdock took no part in the consideration of the
above Decision and Order.
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
our employees that:
WE WILL NOT perform or give effect to the clauses
in the contracts of November 12, 1949, and January 31,
1952, known as the "Central States Area Over-The-Road
Motor Freight Agreements" to which this company is
a party and which cover the employees at this company's
Kansas City, Missouri, terminal, which clauses delegate
to International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Over-The-Road
and City Transfer Drivers, Helpers, Dockmen & Ware-
housemen, Local No. 41, AFL, authority to settle contro-
versies relating to seniority.
8 54 DECISIONS OF NATII "AL LABOR RELATIONS BOARD
WE WILL NOT enter into or renew any agreement with
any labor organization which contains provisions dele-
gating to such labor organization authority to determine
the seniority of employees or to settle controversies re-
lating to seniority , and we shall not enforce such provisions.
WE WILL NOT encourage membership in International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Over-the-Road and City Transfer
Drivers, Helpers, Dockmen & Warehousemen , LocalNo. 41,
AFL, or in any other labor organization of our employees, by
failing and refusing to assign work to our employees to which
they would have been entitled and assigned had their senior-
ity been determined as of the date of their employment rather
than as of the date of acquisition of union membership, or by
discriminating against them in any other manner in regard to
their hire or tenure of employment or any term or con-
dition of their employment, except to the extent permitted
by Section 8 (a) (3) of the Act.
WE WILL'NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed in Section 7 of the Act, except to the ex-
tent that such right may be affected by an agreement re-
quiring membership in a labor organization as a cbndition
of employment as authorized by Section 8 (a) (3) of the Act.
WE WILL make Carlos Beal, Paul Dunbar, Alvin
Chatburn, J. M. Niehaus, and Willis Bradshaw whole for
any loss of pay they may have suffered by reason of the
discrimination practiced against them.
All of our employees are free to become, remain, or to re-
frain 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 authorized by
Section 8 (a) (3) of the Act.
PACIFIC INTERMOUNTAIN EXPRESS COMPANY,
Employer.
Dated ................ By....................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date
of posting , and must not be altered , defaced , or covered by any
other material.
APPENDIX B
NOTICE
TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELP-
ERS OF AMERICA, OVER-THE-ROAD and CITY TRANSFER
DRIVERS, HELPERS, DOCKMEN & WAREHOUSEMEN, LO-
CAL NO. 41, AFL
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 855
National Labor Relation Act, as amended, we hereby notify
you that:
WE- WILL NOT perform or give effect to the clauses
in the contracts of November 12, 1949, and of January 31,
1952, known as the "Central States Area Over-The-Road
Motor Freight Agreements" to which this union is a party
and which cover the employees at the Kansas City,
Missouri, terminal of Pacific Intermountain Express
Company, which clauses delegate to this union authority
to settle controversies relating to seniority.
WE WILL NOT enter into or renew any agreements
with any employer which contain provisions delegating
to this union authority to determine the seniority of em-
ployees or to settle controversies relating to seniority,
and we will not enforce such provisions.
WE WILL NOT cause or attempt to cause Pacific
Intermountain Express Company, its officers, agents,
successors , or assigns , to discriminate against its em-
ployees within the meaning of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce
employees of the above company, its successors or as-
signs , 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 condition of employment, as
authorized by Section 8 (a) (3) of the Act, as amended.
WE WILL make whole Carlos Beall, Paul Dunbar,
Alvin Chatburn, J. M. Niehaus, and Willis Bradshaw for
any loss of pay suffered because of the discrimination
practiced against them.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, OVER-THE-ROAD and CITY TRANSFER
DRIVERS, HELPERS, DOCKMEN & WAREHOUSE-
MEN, LOCAL NO. 41, AFL,
Labor Organization.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
of posting, and must not be altered, defaced, or covered by any
other material.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Carlos Beall, Paul Dunbar, Alvin Chatburn, J. M. Niehaus,
and Willis Bradshaw, individuals, against Pacific Intermountain Express Company, herein
called the Respondent Company or the Company, and against International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Over-the-Road and City
Transfer Drivers, Helpers, Dockmen & Warehousemen, Local No. 41, AFL, herein called
the Respondent Union or the Union, the General Counsel of the National Labor Relations Board,
respectively called herein the General Counsel and the Board, by the Regional Director for
the Seventeenth Region, consolidated the cases and issued a complaint, dated November 24,
1952, alleging that the Respondent Company had engaged in unfair labor practices within
the meaning of Section 8 (a) (1), (2), (3), and (4) of the National Labor Relations Act, as
amended, herein called the Act, and that the Respondent Union had engaged in unfair labor
practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act, all affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
The Company and the Union filed answers, in which they admitted jurisdictional and
other allegations in the complaint but denied commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Kansas City, Missouri, starting on December
15, 1952, and ending on January 12, 1953, before the undersigned Trial Examiner. At the
hearing, both the Union and the Company made motions to dismiss the complaint, as amended.
Ruling on the motions was reserved . The motions to dismiss are disposed of as herein-
after indicated. After the hearing, all parties filed briefs with the Trial Examiner.
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT COMPANY
The Company is a Nevada corporation which maintains its general offices in Oakland,
California, and has terminals in California, Utah, Nevada, Idaho, Missouri, Colorado, and
Illinois . Operating as a motor freight carrier in the above -named and other States under
the authority granted by the regulatory commissions of the various States and by the Inter-
state Commerce Commission, the Respondent Company is engaged principally in the trans-
portation of commodities in interstate and foreign commerce. It does an annual business in
excess of $12,000,000. Its Kansas City, Missouri, terminal is the only one involved in the
instant proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Central State Drivers Council, hereinafter called the Council, and the Respondent
Union are labor organizations within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The first charges in this proceeding were filed by Carlos Beall on April 14, 1952. The
charges alleged, in substance, that the Respondent Company had induced him and other
employees to become and remain members of the Union by discriminating in regard to
hire and tenure of employment through giving effect to seniority provision and union rules
which denied employees their rights guaranteed in the Act ; and that the Respondent Union
had caused the Company to discriminate against him and other employees for reasons
other than failure to tender dues or initiation fees uniformly required as a condition of
employment as provided in the Act, and thereby had denied him the full 30 days provided
for in the Act, during which employees are free to refrain from joining a labor orga 1iza-
tion. Similar charges were filed by Paul Dunbar on April 15, 1952; by Alvin Chatburn on
April 16, 1952; by J. M. Niehaus on April 21, 1952; and by Willis Bradshaw on September
18, 1952.
The complaint alleges, in substance, that Respondent Union and the Council have been
recognized jointly as the collective -bargaining representative of the Company's employees;
that the Company and the Union entered into , and gave effect to, a collective -bargaining
contract which was effective for the period from November 16, 1949, to January 31, 1952,
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 857
and which contained union-shop and seniority clauses; i that prior to the execution of said
contract , no union-shop election had been held; that the Company and the Union on about
January 31, 1952, entered into a contract, effective from February 1, 1952, to January
31, 1955 ;= that on or about November 21 , 1951, the Union posted a seniority roster at the
Company 's terminal , and thereafter posted revisions thereof , pursuant to the provision
of the said contracts ; that the Union in preparing said seniority roster and revisions es-
tablished the seniority of some employees as of the date they acquired membership in the
Union, rather than as of the date of their employment by the Company; that the Union as-
signed each of the charging parties herein seniority dates on said roster which were later
than the dates of their employment , and a lower rank on said roster than was assigned to
other employees who were employeed subsequent to them; that pursuant to an agreement
between the Company and the Union, after November 19, 1951, the Company assigned work
to, employees on its "extra board"3 on the basis of their seniority, as determined by the
Union, rather than on the basis of rotation or "first in, first out" on which the work pre-
viously had been assigned; that since on or about November 19, 1951, the Company awarded
runs and assigned work in accordance with said seniority roster and revisions thereof;
that the Company and the Union, since on or about April 15, 1952, have denied to the charg-
ing parties their seniority rights because they filed charges under the Act, and have given
testimony to the Board; and that in January 1952, the Company at the Union's request de-
ducted from the wages due each of its employees , without their written authorization, a
"2 over -the-road assessment " levied by the Council.
The contracts referred to in the complaint are the "Central States Area Over-the-Road
Motor Freight Agreements," governing trucking operations throughout a 12-State area.
Negotiations leading to the execution of the contracts were conducted in Chicago by repre-
sentatives of all the local unions affiliated with the International and of all the employers
in the area . The negotiating committee representing the unions in said area, including
the Respondent Union, is called the Central States Drivers Council. The employers, in-
cluding the Respondent Company , were represented by various employer associations.
There are few, if any, material issues of fact in the case. In their answers, the Company
and the Union admit that no union -shop election had been held in the bargaining unit in
which the charging parties were included before the execution of the 1949 contract. The
seniority clauses of both contracts contain the provision, "Any controversy over the sen-
iority standing of any employee on this list shall be referred to the Union for settlement."
The undisputed evidence shows that it was the practice for the Company to submit its
seniority roster to the Union for the purposes of checking seniority dates. The Company's
roster eliminated names of employees who had been terminated and added the names of
new employees with the dates of their employment. The Union often made changes on the
roster, assigning employees seniority dates different from those on the Company's roster.
The roster, as revised by the Union, was posted at the terminal. A. D. Schaefer, the Com-
pany's director of employee relations, testified to the effect that all questions on seniority
were determined by the Union, and that under the terms of the contract seniority was "a
matter over which we had no control."
Before April 21, 1952, the Union fixed the seniority date of employees as of the date
they effected their transfer of membership from another local or deposited their withdrawal
cards 4 with the Union. After April 21, the Union changed its policy with respect to em-
ployees who transferred their membership . The seniority date for such employees was
determined as of the date of employment by the Company, rather than the date when the
transfer was effected.
Floyd R. Hayes, president of the Union, testified to the effect that employees who were
not members of the Union when hired (not including members of other locals or those who
had taken out withdrawal cards ) were assigned seniority dates as of the date of their em-
ployment by the Company, rather than the date of their initiation into union membership.
i The contract provisions involved herein are set forth in Appendix A, attached hereto,
2 The provisions of this contract, as alleged in the complaint, are set forth in Appendix B,
attached hereto.
3 Employees on the extra board were those who were not successful in bidding on regular
established runs, or who did not choose to accept such runs.
41t appears that by taking out a withdrawal card a member of the Union became an in-
active member When he deposited the withdrawal card with the Union, he again became an
active member without paying the initiation fee.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
His testimony in this connection shows otherwise . The Union 's seniority roster, dated
November 21, shows that employees Harold Davidson ,. Claude Williams , and Robert Ken-
shaw were assigned seniority dates as of the date of their union initiation , which dates were
later than the dates of their employment by the Company
The Company maintains an "extra board" of drivers who are not assigned to the regu-
larly scheduled runs . It was operated ona rotation basis for a number of years until November
1951, when it was changed to a seniority basis . In April or May 1952 , it was changed back to
a rotation basis . In July 1952 , it again reverted to the seniority basis , on which it remained
until the time of the hearing herein.
The undisputed evidence discloses that all of the charging parties herein were adversely
affected in their hire and tenure of employment by the seniority practices followed by the
Union and the Company . Chatburn was hired by the Company on June 14, 1950. His transfer
to the Union was effected on June 21 , 1950 , and he was assigned seniority as of that date on
the Union 's seniority roster of November 1951. Three employees who were hired by the
Company after Chatburn had higher positions on the roster. His working assignments were
not adversely affected until the Union issued the seniority roster on about November 21,
1951 , and the assignment of work by seniority was instituted on the extra board.
Beall was hired by the Company on September 26, 1951 . His transfer to the Union was not
effected until October 8 , 1951, which date was assigned to him by the Union as his seniority
date on its November roster. Seven employees who were hired after Beall had higher po-
sitions on said roster . Beall 's employment was terminated on August 1, 1952 , for the reason
that he did not get enough work on the extra board, which in turn was due to his low position
on the seniority roster.
Dunbar was hired on August 27, 1951, but was assigned a seniority date of September
10, 1951; on which date he was reinstated as a member of the Union . He ranked lower on
the Union 's November 1951 seniority roster than another employee who was hired on August
28, 1951.
Niehaus was employed by the Company on September 6, 1951, but was assigned a seniority
date of September 25, 19§1, at which time his transfer to the Union was effected . Nine other
employees who were hired after him had higher positions on the November seniority roster.
Willis Bradshaw was employed by the Company on October 8, 1951. He deposited his with-
drawal card with the Union on October 11, 1951. The Union assigned him a seniority date of
October 11, 1951, on its November 1951 roster . He had a lbwer position on the roster than
four employees who were hired after him. Due to the change from rotation to seniority as the
basis for assignment of work on the extra board as related above, Bradshaw was included in a
layoff of drivers which occurred onorabout November 21, 1951. The four employees who were
hired after Bradshaw were not affected by the layoff After his layoff, Bradshaw was recalled
for a few days of work intermittently The Company' s records show that he quit on August 21,
1952, because the " seniority extra board did not allow him to work "
The General Counsel contends that Beall and Bradshaw were constructively discharged
on August 1 and August 21, 1952, respectively , and that such discharges were violations
of the Act . The General Counsel does not contend that any of the employees were discri-
minated against in their working assignments before November 21, 1951 This date is within
the 6-month period specified in Section 10 (b) of the Act, since the first charge in the pro-
ceeding was filed by Beall on April 14, 1952.
The General Counsel contends
By the enforcement of the illegal union-security provision of the 1949 contract and
by the discriminatory application of the seniority provision of the 1949 contract, both
later , in point of time , than 6 months prior to the filing of the charges on April 14,
1952, and also by the discriminatory application of the seniority provisions of its
1952 contract , the Respondent Company has engaged in conduct violative of Section
8 (a) (1) (2) and (3) of the Act
The Respondent Union is jointly responsible with Respondent Company for the en-
forcement of the illegal union security provisions and the discriminatory application
of the seniority provisions of the 1949 and the 1952 contract within a period of 6 months
prior to the filing of the charge on April 14, 1952, as well as thereafter , and thereby
has engaged in unfair labor practices violative of Section 8 (b) (1) (A) and (2) of the
Act. Where no lawful contractual obligation exists, neither the membership of Respondent
Company's employees in Respondent Union, nor the Respondent Union 's desire to en-
force an alleged obligation of such membership removes the case from application
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 859
of the principle that an employer may not lend its assistance to a union in compelling
adherence to the latter 's rules and the Respondent Union violated Section 8 (b) (2) and
8 (b) (1) (A) by causing Respondent Company to discriminate against its employees.
It is undisputed that the union-security clause of the 1949 contract was illegal. However,
it is my opinion , in agreement with the Company 's contention , that the clause became lawful
when the Act was amended on October 22, 1951. Therefore, since there is no contention
that the employees involved herein were discriminated against in their working assign-
ments before on or about November 21, 1951, the issue is whether or not the discrimina-
tions were protected by the provisos to Section 8 (a) (3) and Section 8 (b) (1) (A) and by
Section 8 (b) (2) of the Act.
It is clear from Section 7 and Section 8 (a) (3) of the Act that an employee has a right
to refrain from joining a labor organization for 30 days following the date of his employment
when membership therein is required as a condition of employment. Nothing in Section 8
(b) (1) (A) or (2) detracts from that right. Section 8 (b) (2), in effect, sanctions a discrimi-
nation only when an employee fails "to tender the periodic dues and the initiation fees uni-
formly required as a condition of acquiring and retaining membership." In the instant
case, the Union caused the Company to discriminate against the employees named above
on another ground, namely, their failure to acquire union membership at the time of their
employment. It follows that, in order to protect their seniority rights, employees were
encouraged to join the Union before they were required to do so.
In its brief, the Company cites the decision of the Board in Firestone Tire and Rubber
Company, 93 NLRB 981. The Respondent Union herein also was a respondent in that case,
and an almost identical seniority clause was involved. With respect to the seniority clause
the Board held:
The General Counsel has excepted to the Trial Examiner's failure to find that the
seniority provision of the contract between the Employer and the Union in itself violated
the Act. We find no merit in this exception. The seniority provision, although per-
mitting the Union to control seniority to some extent, does not on its face provide
that the Union should do so because of union affiliation.
In the instant case the General Counsel makes no claim that the seniority provision is
per se violative of the Act. Further, in the above decision, the Board held, in effect, that
the discrimination (reduction in seniority) was protected because the employee involved
had failed to maintain his union membership in good standing. Clearly, the Firestone de-
cision is not applicable to the instant case, since the discriminations herein were based
on grounds other than failure to maintain membership in good standing.
The Respondents' contention with respect to the proviso to Section 8 (b) (1) (A) of the Act
is rejected . This proviso does not enlarge the limits of protected discrimination afforded
by Section 8 (a) (3) and 8 (b) (2). Further, the union-security clause in the 1949 contract
did not become valid until on and after October 22, 1951; and the employees involved all
were members in good standing of the Union before that date.
Accordingly, it is found that by reducing the seniority of the employees named above
the Company violated Section 8 (a) (1) and (3) of the Act. It also is found that Beall and
Bradshaw were discharged constructively on August 1 and August 21, 1952 , respectively;
and that such discharges were violative of the Act since they resulted from the Company's
discriminatory reduction of seniority . It is found that the Union violated Section 8 (b) (1)
(A) and 8 (b) (2) of the Act , in that it restrained and coerced the employees in the exercise
of the rights guaranteed in Section 7 of the Act, and in that it caused the Company to dis-
criminate against the employees in violation of Section 8 (a) (3) of the Act.
The complaint alleges that the Company violated Section 8 (a) (4) of the Act. In this con-
nection, Chatburn testified without contradiction that he filed a grievance with the Union
for the purpose of having his seniority date corrected; and that Cy Wilburn, the Union's
steward, told him, in substance, that the Union could not consider his grievance since he
had filed a charge with the Board. The evidence shows that on April 21, 1952, the Union's
policy with reference to the establishment of seniority for employees who transferred
their membership was changed so that the seniority date started from the date of employ-
ment; and that during November 1952, the Union corrected the seniority date of one em-
ployee so as to show his seniority date as February 10, 1946, rather than February 10,
1947. As of the date of the hearing herein, the seniority dates of the five employees in-
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volved had not been corrected. The General Counsel contends that insofar as the seniority
standings of the employees were concerned the Union was acting as the Company's agent.
The evidence shows that the Company conferred upon the Union complete authority to
determine seniority standings of employees and to settle all controversies over such sen-
iority. It is apparent that this policy was in accordance with the Company's interpretation
of the seniority provisions of the contracts. However, these provisions were the result
of collective bargaining between the Company and the Union, with the latter acting as the
bargaining agent of the employees. Accordingly, the General Counsel's contention is re-
jected; and it is found that the Company did not violate Section 8 (a) (4) of the Act.
The complaint also alleges that the Respondent violated Section 8 (a) (2) of the Act. The
1952 contract provides for a checkoff of "dues, initiation fees and/or uniform assessments
of the Local Union." During February 1952,theCompany deducted $2 from the wages of those
of its employees who had executed written authorizations for deduction of dues. This de-
duction was for yearly assessment or dues of the Central States Drivers Council. The
license card or receipt issued by the Council to the employees identifies the deduction as
an "over-the-road assessment." Schaefer, the Company's director of employee relations,
testified without contradiction in this connection as follows:
By previous arrangement with Local 41, dues are deducted on a quarterly, rather
than on a monthly basis. Local 41 states our company at those periods, listing all
of the employees subject to check-off, and agreement and indicate the amount that
is due them. We then prepare the deduction from the next pay roll and make a remit-
tance to the union.
Each February for a good many years that I can recall, even before I had anything
to do with it in this particular job, there has been a dues collection and it has been
included on the statement of the collecting union for a road card in the Central States
Drivers, the area contract set-up.
I don't think it is an assessment. It isn't billed as an assessment. It is billed as
dues for that particular purpose and it is our understanding that that comes once a
year.
It is clear from Schaefer's testimony that the Respondent considered the deductions in
question as uniform dues. I do not find that by making such deductions the Company rendered
aid and support to the Union in violation of Section 8 (a) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company and the Union, set forth in section III, above, which oc-
curred in connection with the operations of the Company 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
Since it has been found that the Company and the Union have engaged in unfair labor
practices, it will be recommended that each of them cease and desist therefrom and take
certain affirmative action, including the posting and distribution of appropriate notices,
designed to effectuate the policies of the Act.
It has been found that the Company, when on about November 21, 1951, it accepted and
put into effect the Union's determination of the seniority dates of the charging parties
herein, interfered with, restrained, and coerced employees in the exercise of the rights
guaranteed by the Act, and discriminated in regard to their hire and tenure of employment
and their terms or conditions of employment. It has been found that as a result of the dis-
criminatory reduction in seniority, the Company constructively discharged Carlos Beall
and Willis Bradshaw on August 1 and August 21, 1952, respectively. It also has been found
that the Union caused the Company to discriminate against its employees in violation of
Section (a) (3) of the Act.
It will be recommended that the Respondent Company offer Beall and Bradshaw immediate
and full reinstatement to their former or substantially equivalent positions without prejudice
to their seniority or other rights or privileges. It further will be recommended that the
Respondent Company and the Respondent Union, jointly and severally, make whole Beall
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 861
and Bradshaw for any loss of pay they may have suffered by reason of discrimination by
payment of a sum of money equal to that which they would have earned as wages from the
dates of discharge to the date of an offer of reinstatement , less their net earnings during
such period.
The pay lost by Beall and Bradshaw should be computed on a quarterly basis, in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
Other than the above, it will not be recommended that the five charging parties be made
whole. The record conclusively discloses that the discriminatory reduction of their seniority
adversely affected their assignment of bid runs and of work on the extra board. However,
the evidence in this connection is speculative, and is not sufficiently definite so that any
such recommendation can be based thereon.
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. The unfair labor practices found herein are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Respondent Union and the Council are labor organizations within the meaning of
Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment and other terms
and conditions of employment of the charging parties herein, the Respondent Company has
engaged in unfair labor practices witm the meaning of Section 8 (a) (1) and (3) of the Act.
5. The Respondent Company has not engaged in unfair labor practices within the meaning
of Section 8 (a) (2) and (4) of the Act.
6. By attempting to cause and causing the Respondent Company to discriminate against
its employees, and thus to commit an unfair labor practice within the meaning of Section 8
(a) (3) of the Act, the Respondent Union has engaged in unfair labor practices within the
meaning of Section 8 (b) (2) of the Act.
7. By restraining and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent Union has engaged in unfair labor practices within
the meaning of Section 8 (b) (1) (A) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
ARTICLE U
Union Shop (a) The Union shall be the sole representative of those classifications of
and Dues employees covered by this Agreement in collective bargaining with the
Employer.
Section 1 The Employer agrees that any and all employees within the classification
of work as herein provided shall be members of the Union in good stand-
ing as a condition of continued employment. When the Employer needs
additional men, he shall give the Union equal opportunity with all other
sources to provide suitable applicants, but the Employer shall not be
required to hire those referred by the Union. If a non-member is hired,
he shall work under the provisions of this Agreement, shall make appli-
cation for membership in the Union, and become a member no later than
the thirty-first (31st) day of his employment, and shall thereafter main-
tam membership in good standing in the Union as a condition of continued
employment.
The above paragraph shall not apply to any Union, party to this Agreement,
until such time as it is properly certified by the National Labor Relations
Board as being authorized to enter into such Agreement nor shall it apply
in any state where prohibited by state law.
337593 0 - 55 - 56
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If the first paragraph hereof is invalid under the law of any state wherein
this contract is executed, it shall be modified to comply with the require-
ments of state law or shall be renegotiated for the purposes of adequate
replacement.
0
(b) A new employee shall be employed only on a thirty-day trial basis, during
which period he may be discharged without further recourse, provided,
however, that the Employer may not discharge or discipline for the pur-
pose of evading this Agreement or discriminating against Union members.
After thirty days the employer shall be placed on the regular seniority
list.
Section 2 The Employer agrees to deduct from the pay of all employees covered
by this Agreement dues , initiation fees and/or assessments of the Local
Union having jurisdiction over such employees and agrees to remit to
said Local Union all such deductions. Where laws require written authori-
zation by the employee, the same is to be furnished in the form required.
ARTICLE V.
Seniority. Seniority rights for employees shall prevail. Seniority shall be broken
only by discharge, voluntary quit, or more than a two-year lay-off. In
Section 1 the event of a lay-off, an employee so laid off shall be given two weeks'
notice of recall mailed to his last known address. In the event the em-
ployee fails to make himself available for work at the end of said two
weeks, he shall lose all seniority rights under this Agreement. A list of
employees arranged in the order of their seniority shall be posted in
a conspicuous place at their place of employment. Any controversy over
the seniority standing of any employee on this list shall be referred to
the Union for settlement. -
Section 3 (a) All runs and new positions are subject to seniority and shall be posted
for bids. Posting shall be at a conspicuous place so that all eligible em-
ployees shall receive notice of the vacancy, run or position open for
bid, and such posting of bids shall be made out more than once each
calendar year, unless mutually agreed upon. Peddle runs shall not be
subject to bidding. Past practices shall prevail in bidding on peddle runs.
(b) When it becomes necessary to reduce the working force, the last man
hired shall be laid off first, and when the force is again increased, the
men are to be returned to work in the reverse order in which they are
laid off.
APPENDIX B
ARTICLE U
Union Shop (a) The Employer recognizes and acknowledges that the Central States Drivers
and Dues Council and the Local Union a re the exclusive representative of all employees
in the classifications of work covered by this Agreement for the purposes of
Section 1 collective bargaining as provided by the National Labor Relations Act.
(b) All present employees who are members of the Local Union on the effect-
ive date of this subsection shall remain members of the Local Union in
good standing as a condition of employment. All present employees who
are not members of the Local Union and all employees who are hired
hereafter shall become and remain members in good standing of the Local
PACIFIC INTERMOUNTAIN EXPRESS COMPANY 863
Union as a con .,,n of employment on and after the 31st day following
the beginning of their employment or on and after the 31st day following
the effective date of this subsection, whichever is the later. This pro-
vision shall be made and become effective as of such time as it may be
made and become effective under the provisions of the National Labor
Relations Act, but not retroactively
(c) When the Employer needs additional men he shall give the Local Union
equal opportunity with all other sources to provide suitable applicants,
but the Employer shall not be required to hire those referred by the
Local Union
(d) No provision of this Article shall apply in any state to the extent that it
may be prohibited by state law if under applicable state law additional
requirements must be met before any such provision may become ef-
fective, such additional requirements shall first be met.
(e) If any provision of this Article is invalid under the law of any state wherein
this contract is executed, such provision shall be modified to comply with
the requirements of State Law or shall be re-negotiated for the purpose of
adequate replacement If such negotiations shall not result in mutually
satisfactory agreement, either party shall be permitted all legal or economic
recourse.
(f) In those instances where subsection (b) hereof may not be validly applied,
the Employer agrees to recommend to all employees that they become
members of the Local Union and maintain such membership during the
life of this Agreement, to refer new employees to the Local Umon repre-
sentative, and to recommend to delinquent members that they pay their
dues since they are receiving the benefits of this contract
(g) To the extent such amendments may become permissible under applicable
Federal and State Law during the life of this Agreement as a result of
legislative, administrative or judicial determination, all of the provisions
of this Article shall be automatically amended to embody the greater
Union security provisions contained in the 1947-1949 Central States Area
Over-the-Road Freight Agreement, or to apply or become effective in
situations not now permitted by law
(h) Nothing contained in this section shall be construed so as to require the
Employer to violate any applicable law.
Section 2 A new employee shall work under the provisions of this Agreement but
shall be employed wily on a thirty-day t.idi basis, during which period
he may be discharged without further recourse provided, however, that
the Employer may not discharge or discipline for the purpose of evading
this Agreement or discriminating against Union members. After thirty
days the employee shall be placed on the regular seniority list
In case of discipline within the thirty-day period, the Employer shall
notify the Local Union in writing.
Section 3 The Employer agrees to deduct from the pay of all employees covered
by this Agreement dues, initiation fees and/or uniform assessments of
the Local Umon having jurisdiction over such employees and agrees to
remit to said Local Union all such deductions Where laws require written
authorization by the employee, the same is to be furnished in the form
required. No deduction shall be made which is prohibited by applicable
law
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARTICLE V
Seniority Seniority rights for employees shall prevail . Seniority shall be broken
only by discharge , voluntary quit, or more than a two - year lay-off. In
Section 1 the event of a lay-off , an employee so laid off shall be given two-weeks'
notice of recall mailed to his last known address . In the event the employee
fails to make himself available for work at the end of said two weeks, he
shall lose all seniority rights under this Agreement . A list of employees
arranged in the order of their seniority shall be posted in a conspicuous
place at their place of employment . Stewards shall be granted super-
seniority for purposes of lay-off and rehire only , if requested by the
Local Union within thirty (30) days after the effective date of this agree-
ment ; but only one steward shall have super - seniority for purposes of
lay-off. Any controversy over the seniority standing of any employee
on this list shall be referred to the Union for settlement . Such determina-
tion shall be made without regard to whether the employees involved are
members or not members of a Union.
Section 2 The Employer shall not require , as a condition of continued employment,
that an employee purchase truck, tractor and/or tractor and trailer or
other vehicular equipment.
Section 3 (a) All runs and new positions are subject to seniority and shall be posted for
bids. Posting shall be at a conspicuous place so that all eligible employees
will receive notice of the vacancy , run or position open for bid, and such
posting of bids shall be made not more than once each calendar year,
unless mutually agreed upon. Peddle runs shall not be subject to bidding.
Past practice shall prevail in bidding on peddle runs.
(b) When it becomes necessary to reduce the working force, the last man
hired shall be laid off first , and when the force is again increased, the
men are to be returned to work in the reverse order in which they are
laid off.
Section 4 ( a) In the event that the Employer absorbs the business of another private,
contract or common carrier, or is a party to a merger of lines, the
seniority of the employees absorbed or affected thereby shall be determined
by the Union or Unions having jurisdiction over said employees. Such
determination shall be made without regard to whether the employees
involved are members or not members of a Union.
(b) If the minimum wage, hour and working conditions in the company ab-
sorbed differ from those minimums set forth in this Agreement, the
higher of the two shall remain in effect f'r the men so absorbed.
Section 5 The Union reserves the right to cut the seniority board when the average
weekly earnings fall to $ 75 or less. This is not to be construed as im-
posing a limitation on earnings.
GEORGE BIANCHI AND LOUIS BIANCHI, d/b/a L. BIANCHI
& SON and UNITED FRESH FRUIT & VEGETABLE WORKERS
LOCAL INDUSTRIAL UNION NO . 78, CIO, Petitioner. Case
No. 20-RC- 2340. January 14, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before David E.
107 NLRB No. 161.