Paper Products and Miscellaneous Local 27

National Labor Relations Board - Board Decisions

Mar 28, 1974

209 N.L.R.B. 883 (N.L.R.B. 1974)

PAPER PRODUCTS AND MISCELLANEOUS LOCAL 27
Paper Products and Miscellaneous Chauffeurs, Ware-
housemen and Helpers, Local 27, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America and
Jerome Amos and S . L. Wyandanch Corp., Quire
Corp., Comet Industries , Inc., and Haja Container
Corp., Joint Venturers, d/b/a Combined Container
Industries, Party to the Contract. Case
29-CB-1371
March 28, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND PENELLO
On May 31., 1973, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, Party to the Contract, Joint
Venturers, d/b/a Combined Container Industries
(herein called CCI), filed exceptions and a support-
ing brief and the General Counsel filed limited cross-
exceptions and a supporting brief.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only t(- the extent consistent herewith.
The instant unfair labor practice charge, alleging
violations of Section 8(b)(2) and 1(A) of the Act, was
filed on or about November 24, 1972,1 and was
served on Respondent Union on or about November
27. The 6-month cutoff date under the proviso to
Section 10(b) of the Act is, therefore, is May 27.
The complaint alleges that CCI orally recognized
the Union as exclusive bargaining representative on
or about March 24, and, that CCI and the Respon-
dent executed a contract containing a union-shop
provision on June 1.
Contending that before March 24 CCI's superviso-
ry personnel solicited and obtained the union
authorization cards of a majority of its employees by
the time of oral recognition and contract execution,
counsel for the General Counsel argues that Respon-
dent Union violated Section 8(b)(1)(A) and (2) of the
Act by executing the union-shop agreement at a time
it did not represent an uncoerced majority of CCI's
employees. In response, CCI urges that the solicita-
tion and recognition activity occurred outside the
10(b) period, and therefore cannot be the basis for
invalidating the contract which was executed within
the 10(b) period. The Administrative Law Judge
found that Section 10(b) did not bar either considera-
1 Unless otherwise indicated , all dates are in 1972.
2 Local Lodge No 1424, International Association of Machinists, AFL-CIO
[Bryan Manufacturing Co J v N.L R B, 362 U.S. 411 (1960).
209 NLRB No. 140
883
Lion of or findings on evidence respecting CCI's
conduct in soliciting and obtaining Respondent
Union's majority. He accordingly concluded that, as
Respondent Union did not represent an uncoerced
majority of CCI's employees when the contract was
executed on June 1, Respondent violated Section
8(b)(1)(A) and (2). We agree with CCI's contention
and shall, therefore, dismiss the complaint in its
entirety.
The Administrative Law Judge, in finding the
violation as alleged, reasoned that under the teach-
ings of Bryan Manufacturing Co., 2 while Section 10(b)
bars an unfair labor practice finding based on events
which occurred more than 6 months before the
charge is filed, it does not preclude a review of such
events to explain the alleged unlawful conduct
occurring during the 10(b) period. Accordingly, he
deemed it appropriate under the 10(b) proviso to
consider the circumstances under which the employ-
ees signed their authorization cards in order to "shed
light" on the character of the cards in determining
whether the cards on June 1 truly reflected the
employees' authorizations for union representation.
However, the Administrative Law Judge's reasoning
disregards the fact that the Supreme Court in Bryan
approved the use of such evidence in situations,
unlike the present one, where occurrences within the
6-month limitation period in and of themselves may
constitute, as a substantive matter, unfair labor
practices.3 But, the sole occurrence in this case
within the 10(b) period is the execution of the
contract which is innocent on its face and can be
found to be an unfair labor practice only through
reliance upon an earlier time-barred unfair labor
practice. This is precisely what Bryan forbids the
Board to do; i.e., find that an unfair labor practice
was committed outside the 10(b) period to establish
that another unfair labor practice was committed
within the 10(b) period.4 If this is the only way a
violation of the Act within Section 10(b) can be
established, the complaint must fail.
In the instant case the alleged coercion of the
employees by supervisors to sign authorization cards
would be an unfair labor practice if committed
within the 10(b) period. And, unless this unfair labor
practice is established, which it cannot be, the unfair
labor practice of executing the contract cannot be
established. Nor does it help to say, as the Adminis-
trative Law Judge does, that he is merely considering
the circumstances under which the cards were signed
to "shed light" on the validity of the cards in order to
establish the unfair labor practice of executing the
contract. This is not a case of "shedding light." This
3 Bryan Manufacturing Co, supra at 416.
4 Bryan Manufacturing Co., supra at 416, 417.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is clearly a case of finding a precedent unfair labor
practice as the predicate for an unfair labor practice
within the 10(b) period.
The Administrative Law Judge concluded that the
evidence tending to establish the manner in which
Respondent secured its card majority is akin to
evidence establishing an employer's motive at the
time of an alleged discriminatory discharge. And,
since in the latter situation the Board may look to an
employer's pre-10(b) conduct to establish motive, the
Administrative Law Judge reasoned that so, too, may
the Board examine the manner in which a union
acquired majority status outside the 10(b) period to
determine whether it represented an uncoerced
majority when it executed a union-security agree-
ment within the 10(b) period. In our opinion, there is
no comparison between the instant situation and the
situation of an employee discharged within the 10(b)
period allegedly for union activity where the Board
reaches outside the 10(b) period not for the circum-
stances of another overt act by the employer in and of
itself an unfair labor practice, but merely for
evidence in the nature of a statement to show the
true motive for the overt act committed within the
10(b) period. Even with respect to the use of pre-
10(b) evidence to establish motive for an 8(a)(3), the
Board insists that there be some evidence of an
8(a)(3) within the 10(b) period before it will use
evidence of motive to explain the conduct of the
employer in discharging an employee.-9
The Administrative Law Judge sought to distin-
guish Bryan, supra, from the facts here on the ground
that there the union-security agreement itself was
signed outside the 10(b) period, while here it was
executed within the limitations period. This distinc-
tion is, in our opinion, without substance. For in
both cases, the unions were accorded initial recogni-
tion outside the 10(b) period and in both cases an
attempt was made to show that the unions did not
then represent uncoerced majorities of the employ-
ees. In both cases, it would have been necessary to
rely on unlawful conduct occurring outside the
limitations period as the sole basis for finding that
unfair labor practices were committed within the
critical period.
Our dissenting colleague erroneously intimates that
we are here departing from the Board's established
principle, cited with approval in the Bryan case, "that
it is an unfair labor practice for an employer and a
labor organization to enter into a collective bargain-
ing agreement which contains a union security
clause, if at the time of original execution the union
does not represent a majority of the employees in the
unit." We firmly adhere to that principle and would
have found the violations alleged in this case if a
timely charge had been filed. But the propriety of the
recognition is not and cannot be in issue here,
precisely because no timely charge was filed relating
thereto. By relying on the foregoing quoted portion
of the Court's opinion as dispositive here, our
colleague assumes the answer to the very question
which was then before the Court and which is once
more posed here; namely, whether a labor organiza-
tion's apparently valid majority status can be
attacked solely by reliance upon pre-10(b) conduct.
In Bryan, the Court held that we may not rely on pre-
10(b) conduct to find a violation within the critical
period where, but for such reliance, no violation can
be found. While we are as reluctant to don "10(b)
blinders" as our colleague appears to be, we think
that this is exactly what Congress intended us to do
when it enacted that section of the Act.
On the basis of the foregoing, we find that the
General Counsel has failed to establish by competent
evidence that Respondent violated Section 8(b)(2)
and 1(a) of the Act. Accordingly, we shall dismiss
the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
CHAIRMAN MILLER, dissenting:
I believe my colleagues err in dismissing this
complaint on 10(b) grounds.
They are correct in saying that the issue is whether
Respondent entered into the union-security agree-
ment in issue at a time when Respondent represented
a majority of employees in an appropriate unit. But
they err when they say that "It is undisputed that
Respondent did, in fact, represent a majority of these
employees when it was accorded recognition .. .
and when it executed the union-security agreement."
There is no such proof in the record, and, indeed,
the proof is quite to the contrary. It is true that both
at the time of recognition (pre-10(b)) and at the time
of contract execution (post-10(b)) a majority had
signed cards. But that is not the issue. The issue is
whether the majority was a free and uncoerced
majority-not simply whether a magic number of
signatures, no matter how obtained, appeared on
some pieces of paper or cardboard.
There is no proof of genuine majority support at
the time the contract was executed. Instead, all this
record shows is that there were these signatures on
the cards. To evaluate that evidence, it is essential to
5 See Southern Electronics Company, Inc, 131 NLRB 1411, enfd 302
F.2d 145 (C A. 6, 1962)
PAPER PRODUCTS AND MISCELLANEOUS LOCAL 27 885
learn under what circumstances the cards were
signed. I see no need for us to put on 10(b) blinders
and thus to forsake that crucial inquiry. And if we
look behind the 10(b) curtain, it is plain, as the
Administrative Law Judge here found, that the
"majority" is phony and not real-coerced and not
free.
To enter into and enforce a union-security agree-
ment under those circumstances is to engage in a
classic violation of our Act.
Bryan is plainly distinguishable. The Court in
Bryan4 said that "the entire foundation of the unfair
labor practice charged was the Union's timebarred
lack of majority status when the original collective
bargaining agreement was signed." [Emphasis sup-
plied.]
And earlier in the decision the Court said at p.
413-414:
. . . the Board has evolved the principle, not
drawn in question here, that it is an unfair labor
practice for an employer and a labor organization
to enter into a collective bargaining agreement
which contains a union security clause, if at the
time of original execution the union does not
represent a majority of the employees in the unit.
[Emphasis supplied.]
Since in this case, the Union clearly did not
represent a free and uncoerced majority at the time
of execution, which time is properly within the
limitations period, the violation is established and the
Administrative Law Judge's Decision should be
affirmed.
i Local Lodge No 1424, International Association of Machinists, AFL-CIO
v N L R B [Bryan Mfg Co.], supra at 417
DECISION
period, Respondent makes interstate purchases exceeding a
value of $50 ,000. I find that CCI is an Employer engaged
in commerce within Section 2(6) and (7) of the Act.
II. RESPONDENT LABOR ORGANIZATION
Paper Products and Miscellaneous Chauffeurs, Ware-
housemen and Helpers, Local 27, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America (herein called Local 27 or
Union), is a labor organization within Section 2 (5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that CCI orally recognized Local
27 as exclusive bargaining representative on or about
March 24, 1972; that CCI and Local 27 executed a
collective-bargaining agreement on or about June 1, 1972,
the contract containing union-shop and checkoff provi-
sions ; and that the contracting parties thereafter main-
tained and implemented this contract . Contending that
CCI had solicited and obtained the union authorization of
a majority of CCI's employees by the time of oral
recognition and contract execution, the General Counsel
alleges that Local 27 violated Section 8(b)(1)(A) and (2) of
the Act by executing the union-shop agreement at a time it
did not represent an uncoerced majority of CCI's employ-
ees.
Respondent and CCI admit that CCI solicited a majority
of Respondent's authorization cards before March 24,
1972, and thus before the execution of their June 1972
contract. They claim, however, that CCI's employees were
an accretion to a unit covered by a preexisting contract
between Respondent and another employer (Skyway
Container) and, therefore , that CCI and Respondent were
entitled to apply the union-shop provisions of that other
contract to CCI's employees. They further claim that, even
if there be no accretion , the proviso to Section 10(b)
precludes a determination that Respondent did not, enjoy
an uncoerced majority at material times respecting the
execution of the June 1 contract.
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: Upon a
charge filed by the above-named individual, a complaint
issued by the General Counsel, and an answer filed by
Respondent Local 27, a hearing was held on March 12, 13,
and 29, 1973. All parties were represented at the hearing,
including Combined Container Industries (herein called
CCI), which was named in and served a copy of the
complaint as Party to the Contract.
Upon the entire record in this case, including my
observation of the demeanor of witnesses and upon
consideration of briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF CCI
CCI is ajomt venture located in Wyandanch, New York,
where it is engaged in the manufacture of corrugated paper
sheets and related products. In a representative yearly
Formation of CCI
Insofar as is relevant here, the corrugated box business
involves two principal operations-combining (corrugat-
ing) and finishing . The combiner (corrugation) operation
produces the corrugated sheets which are processed into
the finished product at so-called sheet plants . As many as
50 concerns in the New York City area are engaged in both
operations , each of these single-employer concerns being
unionized on a comprehensive basis , i.e., having both
corrugating and finishing employees in a single bargaining
unit. So-called sheet concerns perform only finishing
operations and thus must obtain corrugated sheets from
corrugator suppliers, and among these sheet concerns in
1970 were Skyway Container, Arma Container, Comet
Container, and Island Container.
In early 1971, following year-long negotiations, the
principals of the four above -named sheet concerns agreed
to set up a combiner or corrugator operation to manufac-
ture corrugated sheets for their own respective sheet plant
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(finishing) operations. CCI thus came into being as a joint
venture of the four sets of principals who bear the four
corporate names appearing in the caption of this case. For
example, Irwin S. Lizan is a principal of Skyway; he and
his Skyway partners organized another corporation which
is one of the four corporate joint venturers doing business
as CCI.
CCI was thus established to corrugate sheets exclusively
for the four mentioned sheet concerns and for no other
finishing plants.
Skyway owns its plant building and is the largest of the
four sheet concerns involved here, and the joint venturers
accordingly decided to install their combiner operation at
the Skyway premises. The corrugator or combiner is a
fairly large piece of equipment, and the Skyway building
was enlarged to accommodate it. Modification of the
Skyway facilities began in April 1971, and the container is
now housed adjacent to Skyway's finishing operations.
CCI had three or four employees for preproduction
purposes the week ending March 2, 1972 and it then began
filling out its production roster to begin operations. It had
15 employees the week ending March 22, 1972, and 13
employees the week ending June 1, 1972, and it has ranged
between 13 and 16 employees since March 22, 1972.
Skyway at all material times has had a complement of
approximately 40 production employees.
CCI and Skyway each maintain separate records and
office facilities at the Skyway premises; each has its own
manager or superintendent and each hires and handles its
own personnel. The CCI superintendent reports to Sky-
way's principals respecting day-to-day operations and
these principals are subject to overall policy decisions of a
committee representing the four corporate joint venturers
of CCI. Skyway and CCI employees use common sanitary
and refreshment (vending machine) facilities; each has its
own mechanic (neither being in the production contract
unit), these mechanics occasionally assisting each other;
employees of either Skyway or CCI, depending on
availability, push a handtruck bearing corrugated sheets
from the CCI combiner operation to the Skyway finishing
operation; and Skyway production personnel occasionally
fill in for absent CCI personnel, on a reimburseable basis
to Skyway. Both companies maintain different types of
equipment, and the skills vary in operating their respective
machinery.
Labor Relations
Skyway (sheet concern) has two contracts with Local 27,
one covering production employees and another covering
I Although the parties generally conceded, as the General Counsel states
in his brief, the date of oral recognition to be March 24, it is interesting to
note that at the close of the hearing CCI offered a letter dated November
19, 1971, in which one of its officers extended recognition to Respondent
drivers, and this bargaining history has existed since 1957.
Anna (sheet concern) has the same standard-form con-
tracts with Respondent Local. Comet and Island, the other
two sheet concerns involved here, are also unionized; their
respective driving units are represented by Respondent
Union, but another, unidentified, union represents each of
their production units.
Patrick Crapanzano, Jr., is Respondent Local 27's
business representative; his brother, Robert Crapanzano, is
president of the Local; and his father, Patrick Crapanzano,
Sr., is the secretary-treasurer.
Respondent Union admits and Crapanzano, Jr., testified
that CCI recognized Local 27 as bargaining representative
of CCI's production employees on or about March 24,
1972,' and that Respondent Union and CCI executed a
collective-bargaining agreement on or about June 1, 1972,
and that these parties maintained and implemented the
union-security and dues-checkoff provisions of such
agreement. Respondent and CCI did stipulate, in effect,
that as of March 24, CCI-through its manager, Richard
Zimmerman, or through another statutory supervisor-had
secured union authorization cards from a substantial
majonty of CCI's employees and furnished them to
Respondent Union; and that these same supervisors have
continued to solicit the union cards of newly hired
employees.
Frederick Levitt is one of the Comet principals, or
perhaps its only one, and his Comet Industries is one of the
four joint venturers involved here. Levitt and Arma
principal Sid Hausman handled CCI's contract negotia-
tions with Respondent Local. CCI and Local 27 engaged in
contract negotiations in March 1972, according to Levitt,
and he further testified that they had resolved all contract
terms by the end of April 1972 except as to the method by
which the employees would be covered for agreed-upon
insurance welfare benefits . Pending final determination as
to method of coverage, the CCI employees were temporari-
ly added, effective May 1, to Anna's group policy. The
June 1 contract, when executed, contained a provision for
coverage under the Respondent Local's welfare trust fund,
and the parties, in or about September 1972, agreed on
coverage under the Skyway group policy. CCI and Local
27 meanwhile had executed Respondent's standard-form
contract on or about June 1, 1972. The current Skyway
production contract runs from September 1972 until
September 1974, the predecessor contract having expired
in August 1972; CCI's contract runs from June 1, 1972,
until May 31, 1975. The Skyway and CCI contracts differ
respecting vacations, holidays, and cost-of-living incre-
Local for CCI's production employees . CCI had no production employees
at that time This recognition , even if it did occur as early as that date, does
not in any respect affect the subsequent finding as to the invalidity of the
June 1972 contract
PAPER PRODUCTS AND MISCELLANEOUS LOCAL 27
ments, and the respective job and wage classifications of
these current contracts are set forth below.2
At no time during the CCI-Respondent contract negotia-
tions did either party claim that Respondent Local
represented CCI employees as part of the Skyway unit and
that such employees were accordingly covered by the
Skyway contract.
2 The wage classifications are as follows-
Skyway
Classifications 9/l/72 9/l/73
Press oper (2-3-4 colors) $4.22 $4.47
Rotary slotter oper 3.55 3.80
Partition/small box oper 3.55 3.80
Slitter oper (4 bar) 3.55 3.80
Semi auto taper oper 3.29 3.54
Semiauto stitcher oper 3.29 3.54
Cylinder diecutter oper 3.95 4.20
Cylinder die asst oper 3.59 3.84
Auto folder gluer oper 3.78 4.03
Auto folder gluer asst 3.59 3.84
Up-stroke baler oper 3.28 3.63
Bandsaw oper 3.25 3.50
Receiving man 3.46 3.71
Receiving asst 3.18 3.43
Loader 3.20 3.45
Ileadsetter 3.54 3.79
Apprentice 3.06 3.31
Bundler(auto folder-gluey) 3.38 3.63
Bundler(semi auto taper 3.29 3.54
& stitcher)
Diecutter stripper bundler 3.29 3.54
General-helper 3.00 3.25
CCI
Classifications 6/1/72 6/1/73 6/ 1 74
Tripex $5.60 $5.75 $5.90
Double backer 4.95 5.10 5.25
Knife man 3.90 4.05 4.20
Maintenance 3.70 3.85 4.00
Oper 3.70 3.85 4.00
Roll handler 3.70 3.85 4.00
Shipping 2.95 3.10 3.25
Sheet catcher 2.80 2.95 3.10
Corr. stock oper 2.80 2.95 3.10
Bailer 2.70 2.85 3.00
Strapper 2.70 2.85 3. 00
The Accretion Contention
887
The parties agree on applicable criteria in resolving
accretion situations, and CCI and the General Counsel
both refer in this connection to the following statement in
The Great Atlantic and Pacific Tea Company, 140 NLRB
1011, 1021:
In determining that a newly established facility or
operation is an accretion to an existing unit, the Board
has given weight to a variety of factors, such as
integration of the operations; centralization of manage-
nal and administrative control; geographic proximity;
similarity of working conditions; skills and functions;
common control over labor relations; collective bar-
gaining history; and interchangeability of employees
... the normal situation presents a variety of elements,
some militating toward and some against accretion, so
that a balancing of factors is necessary.
In contending that CCI is an accretion to the Skyway
unit within the A&P criteria, CCI accordingly asserts that
the present record establishes "complete integration of
operations ; centralization of managerial and administra-
tive control ; geographic proximity ; similarity of working
conditions , skills and functions; common control over
labor relations ; and interchangeability of employees."
Skyway is but one of four joint venturers comprising
CCI. So far as the four interested sheet concerns are
concerned , they are separately owned and operated, each
having its separate bargaining relationship , and only two of
them-Skyway and Arma-have contracts with Respon-
dent . Each of the four sheet firms is thus wholly
independent , in terms of ownership and operation and
bargaining history and relationships, and Skyway is thus a
wholly separate enterprise from CCI and from each of the
other sheet concerns.
CCI and Respondent, while claiming an accretion
situation , have themselves not treated it as such , as appears
above . Thus, CCI has its own contract with Respondent,
such contract having a different terminal date from the
Skyway contract, and their job and wage classifications are
also substantially different, as are other above-stated
provisions. CCI claims a similarity in functions and skills
between CCI and Skyway employees, but the wage and job
schedules refute this contention without further need to
discuss the record which otherwise does not support CCI's
claim in this connection. Nor does the record, apart from
geographical proximity, establish any substantial integra-
tion of operations between Skyway and CCI or any
meaningful interchangeability of employees between them.
Balancing the factors in this case within the A&P criteria,
I conclude that CCI employees were not and are not an
accretion to the Skyway unit, and I accordingly reject
Respondent's and CCI's contention in this regard .3
1 Needless to say, this does not mean that combiner and finishing
employees in other circumstances may not compose a common bargaining
unit; each case requires consideration of its own entrepreneurial, operation-
Starting rate for general hl prs , $2.50 al. labor relations , and other relevant factors.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 10(b) Contention
The complaint alleges that the charge herein was filed on
November 22, 1972, and served on Respondent Union on
or about November 23, 1972, and Respondent Union's
answer admits these allegations . The record shows,
however , that the charge was actually filed and mailed to
Respondent on November 24. At CCI's request, the
General Counsel made a search for, but was unable to
locate , the registered return receipt signed by Respondent
upon delivery of the charge to Respondent Local . CCI did
not examine Respondent Local respecting its above
admission of service charge . On the basis of the foregoing,
I find that the charge was served on or about November
27, 1972, and that the 6-month cutoff date under the
proviso to Section 10(b)4 of the Act is May 27, 1972.
Without waiving their objection under Section 10(b) to
the admissibility of evidence respecting CCI's conduct in
soliciting and obtaining a majority of Respondent Local's
union designation cards before May 27, 1972, they
concede , as stated above , that CCI did so solicit and obtain
these cards and turn the cards over to Respondent Local.
CCI and Respondent Local thus contend that Section
10(b) precludes the Board from probing into and making
findings based upon the pre - 10(b) circumstances under
which Respondent Local acquired its majority and they
urge that the complaint be dismissed as a matter of law
because, as all parties agree , the June l contract is on its
face a valid union -security agreement . Respondent and
CCI rely on the Bryan Mfg. case (Local Lodge No. 1424,
I.A.M. [Bryan Mfg. Co.] v. N.L.R.B., 362 U.S. 411 (1960)),
in which the Supreme Court stated (at 416-417):
It is doubtless true that § 10(b) does not prevent all use
of evidence relating to events transpiring more than six
months before the filing and service of an unfair labor
practice charge. However, in applying rules of evidence
as to the admissibility of past events, due regard for the
purposes of § 10(b) requires that two different kinds of
situations be distinguished. The first is one where
occurences within the six-month limitations period in
and of themselves may constitute, as a substantive
matter, unfair labor practices. There, earlier events may
be utilized to shed light on the true character of matters
occurring within the limitations period; and for that
purpose § 10(b) ordinarily does not bar such evidenti-
ary use of anterior events. The second situation is that
where conduct occurring within the limitations period
can be charged to be an unfair labor practice only
through reliance on an earlier unfair labor practice.
There the use of the earlier unfair labor practice is not
merely "evidentiary," since it does not simply lay bare
a putative current unfair labor practice. Rather, it
serves to cloak with illegality that which was otherwise
lawful. And where a complaint based upon that earlier
event is time-barred, to permit the event itself to be so
used in effect results in reviving a legally defunct unfair
labor practice.
The effective issue in Bryan Mfg was whether the
continued enforcement of a union-security contract execu-
ted by a minority union was unlawful where the charge in
that case was filed more than 6 months after execution of
an initial contract. The Court held that the situation was of
the latter variety described in the quotation above, "for the
entire foundation of unfair labor practice charged was the
Union's time-barred lack of majority status when the
original collective bargaining agreement was signed. In the
absence of that fact, enforcement of this otherwise valid
union-security clause was wholly benign" (ibid. ). The
Court concluded that the complaint was based in a "real
sense" upon the execution, rather than the enforcement, of
the contract (362 U.S. at 423) and that the "findings of
violation which is inescapably grounded on events predat-
ing the limitations period is directly at odds with the
purposes of the Section 10(b) proviso" (362 U.S. at 422).
The Court discussed the legislative history of Section
10(b) in terms of "the problem of agreements with minority
unions" (362 U.S. at 426), and the Court was satisfied that
Section 10(b) was intended "to bar attacks on collective
agreements with unions lacking majority status unless
brought within six months of their execution" (362 U.S. at
425).
It is hornbook law under the Act that minority unions
may not execute union-security contracts and that a
"coerced" majority does not satisfy the majority status
required of an exclusive bargaining representative at the
time of contract execution. International Ladies' Garment
Workers' Union [Bernhard-Altmann Texas Corp.] v.
N.L.R.B., 366 U.S. 731 (1961). This, then, leads to some
consideration of how an employee designates or authorizes
a labor organization as his bargaining representative.
The conventional methods of authorizing a union to
represent employees under this Act are by elections and
union membership or authorization cards. Presumably, a
written authorization is not necessarily required, but, in
any event, there is always the question of proof in
establishing the employee's authorization in the matter.
The Supreme Court dealt extensively with this subject in
N L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), when it
held that union authorization cards were a sufficient
indicator of employee desires but that even such manner of
proof of employee authorization was subject to attack on
grounds of fraud, certain misrepresentations, or coercion.
In other words, cards tainted in these respects may not and
do not truly establish the employee's authorization to a
union either at the time he signs such card or at any later
material time, and this is so whether or not any unfair
labor practice was involved in the securing of his card.
The proviso reads, in part
Provided , That no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon the
person against whom such charge is made , unless the person aggrieved
thereby was prevented from filing such charge by reason of service in
the armed forces, in which event the six -month period shall be
computed from the day of his discharge.
PAPER PRODUCTS AND MISCELLANEOUS LOCAL 27
The evidentiary matter of establishing the critical fact of
majority union representation at the time a union-security
contract is executed is somewhat akin to establishing the
critical fact of employer motive at the time of an alleged
unlawful discharge. If, before the 10(b) period, an
employer threatens his employees with discharge should
they join a union, evidence of such threat is clearly relevant
and properly admissible should he discharge his employees
when they join a union 7 months later. And in an
appropriate case, one might properly sustain a finding of
unlawful discharge even absent any additional showing of
unlawful motive and even though the threat itself consti-
tutes an unfair labor practice and was made more than 6
months before the discharge.
So, too, do I view the critical factor of union majority
status when a union executes a union-shop contract. In the
present case I accordingly deem it appropriate under the
10(b) proviso to consider the circumstances under which
the employees signed their authorization cards in order to
"shed light" on the character of the cards in determining
whether the cards on June 1 truly reflected the employees'
authorization for union representation. As in Bryan Mfg.,
the gravamen of the complaint is the execution of the
contract; unlike Bryan Mfg., however, the execution in this
case fell within the 10(b) period. The Court in Bryan Mfg.
was impressed with a legislative purpose of Section 10(b)
"to stabilize existing bargaining relationships," albeit
entered into outside the 10(b) period (362 U.S. at 419).
However, no such purpose would be accomplished by
applying Section 10(b) in determining the validity of a
contract entered into within the limitations period therein
stated.
Upon all of the foregoing I find that Section 10(b) does
not bar either consideration of or findings on evidence
respecting COI's conduct in soliciting and obtaining
Respondent Local's majority, and I accordingly conclude
that Respondent Local Union did not represent an
uncoerced majority of CCI's employees when they execut-
ed their contract on June 1, 1972.5
CONCLUSIONS OF LAW
1. Combined Container Industries, Joint Venture, is an
employer engaged in commerce within Section 2(6) and (7)
of the Act.
2. Responden, Local 27 is a labor organization within
Section 2(5) of the Act.
3. Respondent Local 27 has violated Section 8(b)(1)(A)
and (2) of the Act by acting as exclusive bargaining
representative of CCI's employees and by executing,
maintaining, and otherwise implementing its union-securi-
ty contract of June 1972 with CCI.
5 Dayton Motet, Inc, 192 NLRB 674, cited by CCI, involves, in effect, a
Bryan Mfg situation in that Respondent sought to question the affected
union's majority respecting a contract executed before the 10(b) period. The
Court of Appeals for the Sixth Circuit disagreed with the Board on that
point. N.L.R.B v. Dayton Motels. Inc, 474 F 2d 328 (1973).
CCI also cites Barrington Plaza & Tragniew, Inc., 185 NLRB 962. That
case also involved a majority representation question respecting a contract
executed before the 10(b) period. There, too, the reviewing court did not
fully agree with the Board N LR.B. v. Tragniew, Inc., 470 F.2d 669 (C.A. 9,
1972)
CCI also cites N LR B v Frick Co., 423 F.2d 1327 (C.A. 3, 1970), to
support a claim that . in view of its pre- 10(b) oral recognition of Respondent
889
4. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
Ti1E REMEDY
Having found the unfair labor practices above, I shall
recommend remedial action necessary and appropriate to
effectuate the policies of the Act. Such action will include
cease-and-desist provisions from acting as statutory repre-
sentative of CCI's employees until and unless its status as
such is established in a Board-conducted election and from
maintaining and implementing or otherwise giving effect to
its June 1972 contract with CCI. The recommendations
will also include, among other things, provisions for
making whole CCI's employees for monies lost as a
consequence of the union-security provisions of the 1972
contract having been foisted upon them as a condition of
their employment as well as all other monies paid over by
CCI to Respondent Union pursuant to said contract in
behalf of or to the account of such employees.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Respondent Paper Products and Miscellaneous Chauf-
feurs, Warehousemen and Helpers, Local 27, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, New York, New
York, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Acting as the exclusive bargaining representative of
any of the employees of Combined Container Industries,
Joint Venture , unless and until said Union shall have
demonstrated its majority representative status in a Board-
conducted election.
(b) Maintaining, enforcing, or giving any effect to union-
security and any other provisions of its June 1, 1972,
contract with CCI, or to any extension, renewal, or
modification thereof.
(c) In any like or related manner restraining or coercing
CCI's or any other employer's employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action: _
(a) Make whole all CCI employees, present or past since
June 1, 1972, by reimbursing to each of them the amounts
paid by them or withheld from their wages for dues and
initiation fees and any other monies collected or received
by Respondent pursuant to the aforesaid June 1, 1972,
contract in behalf of or to the account of all such
employees.
Local in March 1972, it would have violated Sec 8(a)(5) had it withdrawn
recognition from Respondent Local and not executed the June 1 agreement
That case did not involve 10(b) considerations and is otherwise inapposite
to the present proceeding
6 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and Order, and
all objections thereto shall be deemed waived for all purposes.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its business office and meeting hall copies of
the attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by the Respondent
Union's representative, shall be posted by the Respondent
Union immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by Respondent Union to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Mail copies of said notice to each production
employee of CCI.
(d) Mail to the Regional Director for Region 29 signed
copies of said notices for posting by CCI in places where
notices to CCI employees are customarily posted. Copies
of said notices, to be furnished by the Regional Director
for Region 29, shall, after being duly signed by the
Respondent Union's official representative, be forthwith
returned to the Regional Director.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
7 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
WE WILL NOT perform or give effect to our
agreement with Combined Container Industries dated
June 1, 1972, covering the in-plant employees , or to any
extension , renewal , or modification thereof , or to any
superceding contract with Combined Container Indus-
tries , nor will we otherwise act as exclusive bargaining
representative of these employees, unless or until we
have been duly certified by the National Labor
Relations Boardas the exclusive representative of these
employees.
WE WILL reimburse Combined Container Industries
employees for dues, initiation fees, and all other monies
which were deducted or received by us pursuant to the
agreement between us and Combined Container
Industries dated June 1, 1972.
Dated By
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees of
Combined Container Industries , or any other employ-
er, in the exercise of the rights guaranteed in Section 7
of the National Labor Relations Act, as amended.
WE WILL NOT cause or attempt to cause Combined
Container Industries , or any other employer, to
discriminate against any employees in regard to their
hire or tenure of employment, or any term or condition
of employment, in violation of Section 8(a)(3) of the
Act as amended.
PAPER PRODUCTS AND
MISCELLANEOUS
CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS, LOCAL 27,
AFFILIATED WITH
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 16
Court Street-4th Floor, Brooklyn, New York 11241,
Telephone 212-596-3535.