Wings & Wheels, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1962

139 N.L.R.B. 578 (N.L.R.B. 1962)

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Twenty-second Region, shall, after being signed by a representative of Respond-
ent, be posted by it immediately upon receipt thereof and be maintained for a period
of 60 consecutive days thereafter in conspicuous places including all places where
notices to employees are customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered defaced or covered by any
other material.
(c) Notify the Regional Director for the Twenty -second Region in writing within
20 days from the date of receipt of this Intermediate Report and Recommended
Order what steps it has taken to comply herewith.12
12 In the event that this Recommended Order be adopted by the Board this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL bargain collectively , upon request with Local 478 , International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive bargaining representative of all employees in the bargain-
ing unit described below concerning grievances, labor disputes , wages, rates of
pay, hours of employment , and other conditions of work , and, if an under-
standing is reached , embody it in a signed agreement . The bargaining unit is:
All production , maintenance , shipping, receiving, and warehousing em-
ployees employed at the Employer 's place of business in Newark, New
Jersey, exclusive of all office clerical employees , watchmen , guards, profes-
sional employees , and supervisors as defined in the Act.
WE WILL NOT refuse to bargain collectively as aforesaid, nor will we, in
any like or related manner , interfere with , restrain , or coerce our employees
in the exercise of their right to bargain collectively through said Union.
THE DIVERSEY CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
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.
Employees may communicate directly with the Board 's Regional Office, 614 Na-
tional Newark Building , 744 Broad Street, Newark, New Jersey , Telephone Num-
ber, Market 4-6151 , if they have any question concerning this notice or compliance
with its provisions.
Wings & Wheels, Inc. and Highway Truck Drivers and Helpers,
Local 107, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case No. 4-CA-92420.
October 29,1962
DECISION AND ORDER
On April 19, 1962, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent and the General Coun-
139 NLRB No. 34.
WINGS & WHEELS, INC. 579
sel filed exceptions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has considered the Intermediate Report,2 the exceptions
and briefs, and the entire record in the case, and adopts the findings,
conclusions, and recommendations 3 of the Trial Examiner to the
extent consistent with the decision herein.
A. Respondent's business
The Respondent contends that the Trial Examiner erred in assert-
ing jurisdiction over its airfreight forwarder business because its
operations are subject to the Railway Labor Act 4 as a common car-
rier by air and therefore it cannot be subject to the jurisdiction of
the Act 5
The record shows that the Respondent forwards freight by truck
to and from various airlines, pursuant to a freight forwarder's oper-
ating authorization issued by the Civil Aeronautics Board.' Ship-
pers using its services call Respondent directly and Respondent picks
up the freight and usually an arrangement is entered into between
the Respondent and the shipper whereby the entire transportation
will be handled, including air carriage, pursuant to Respondent's
i The Respondent filed a request for oral argument. We hereby deny the Respondent's
request as , in our opinion, the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Intermediate Report incorrectly states that in the complaint the Respondent is
alleged to have refused to bargain since about January 13, 1961, whereas the correct date
is June 13, 1961. We hereby correct this inadvertent error
3 The General Counsel excepts to the Trial Examiner 's failure to include in his recom-
mended order provisions directing that the Respondent cease and desist from individual
bargaining, threatening its employees with discharge if they joined the Union, and interro-
gating them about their union activities. Further, the General Counsel contends that the
Trial Examiner erred in failing to provide in his proposed notice language requiring
reinstatement of the discriminatees Russell Bailey, Robert Bailey, and James Szymanski.
We agree with the General Counsel that the Order and notice should include these pro-
visions and we shall accordingly include them in the Order and notice In adopting the
Trial Examiner's conclusion that the alleged threats cannot now be urged as grounds for
denying reinstatement, we note that Respondent did not raise such alleged conduct as a
bar to reinstatement at the February 6, 1962, meeting with the union representatives.
The General Counsel also asserts that the Trial Examiner should have provided for the
payment of interest in connection with backpay. We agree, and in accordance with our
usual practice, for the reason set forth in Isis Plumbing & Heating Co., 138 NLRB 716,
and in the same manner, we shall require that the Respondent's backpay obligation herein
include the payment of 6 percent interest per annum on backpay due Russell Bailey,
Robert Bailey, and James Szymanski. Member Leedom, however, for the reasons stated
in his dissent in the Isis case, would not grant such interest.
4 The Railway Labor Act, as amended, 49 Stat. 1189, 45 U S C.A. Section 181 , provides :
All of the provisions of Sections 151, 152, and 154-163 of this title are extended
to and shall cover every common carrier by air engaged in interstate or foreign
commerce. . . .
5 The Act provides under Section 2 that employers and persons subject to the Railway
Labor Act are not covered by the Act.
Operating Authorization No. 32 issued by the Civil Aeronautics Board.
6'12010-63--vol . 139-38
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tariffs. As the Respondent operates no airplanes and has no exclusive
contractual relationship with any airline, the Respondent takes the
shipment singly or pooled with those of other shippers to the various
airlines at their terminals for further transportation. At this point
the Respondent will make its own contract with the airline pursuant
to the airline's tariffs. On the shipment reaching its destination by
air, Respondent handles the delivery by truck.
Specifically, the Respondent argues that by the enactment of the
Civil Aeronautics Act which covers airfreight forwarders, Congress
intended to enlarge the coverage of the Railway Labor Act to in-
clude airfreight forwarders. We disagree. The Civil Aeronautics
Act, enacted after the air carrier amendment to the Railway Labor
Act, shows no language indicating that the scope of the Railway
Labor Act was thereby enlarged to cover airfreight forwarder oper-
ations.' The reference in the Civil Aeronautics Act to the Railway
Labor Act merely requires that air carriers having a certificate of
public convenience and necessity abide by certain provisions of the
Railway Labor Act.8 This provision, in our opinion, cannot be con-
strued to mean that Respondent, which does not operate airplanes
and which does not have such a certificate, requiring as a prerequisite
a hearing on public need and ability to render the service, is covered
by the Railway Labor Act.
In view of the nature of the jurisdictional question presented here
pertaining to the Railway Labor Act and because the National Medi-
ation Board has primary authority to determine jurisdiction under
the Railway Labor Act, we have in this case, as in similar ones,°
submitted Respondent's brief and the entire record in this matter
to the National Mediation Board for their determination on whether
Respondent's operations fall within the Railway Labor Act. Ac-
cordingly, on June 29, 1962, the National Mediation Board admin-
istratively advised the National Labor Relations Board that it was
unable to find Respondent to be a "common carrier by air," as that
term is used in Title II of the Railway Labor Act.
Respondent being operated independently of any airline and itself
not being an operator of airplanes; the National Mediation Board
having determined the Respondent is not subject to the Railway
Labor Act; and Respondent conceding that it otherwise meets the
Board's jurisdictional standards, we conclude that Respondent is
7 See Airline Stewards Etc., As8'n v Transworld Airlines, 178 F. Supp. 369 , 378 (U.S
District Court S D.N Y.).
8 The Civil Aeronautics Act, as amended, 72 Stat. 754, Section 401 (k) (4), 49 U.S C A.
1371(k) (4) (Supp. 1961) provides :
It shall be a condition upon the holding of a certificate [ of public convenience and
necessity] by any air carrier that such carrier shall comply with Sections 181-188 of
Title 45 [the air carrier amendment to the Railway Labor Act)
Bradley Flying Service, Inc, 131 NLRB 437.
WINGS & WHEELS, INC. 58 1
engaged in commerce within the meaning of the Act and that it is
subject to this Act.
B. The unfair labor practices
The Trial Examiner found that Respondent violated Section
8 (a) (3) of the Act by discriminatorily discharging on June 26, 1961,
the entire bargaining unit, and violated Section 8(a) (5) of the Act
because such discharges were in avoidance of the duty to bargain.
Also, the Trial Examiner found that Respondent continued to refuse
to bargain on February 6, 1962, when it made reinstatement of the
drivers contingent upon the terms which the Respondent proposed
to each driver through individual bargaining prior to their discharge.
Further, the Trial Examiner found an independent violation of
Section 8 (a) (1) of the Act when Respondent, after discharging the
drivers on June 26, 1961, during the period they were picketing, made
reemployment offers to the drivers contingent upon their leaving the
Union. We agree with the Trial Examiner that the Respondent com-
mitted the above violations of the Act; however, the Intermediate
Report is not entirely clear whether the Trial Examiner found addi-
tional violations which we find are also supported by the record.
Thus, the Intermediate Report and the record show that during
the second week in February 1961 when Robert Bailey questioned
Lindsay Nye, the manager of Respondent's Philadelphia office,
whether the employees of the Respondent could join the Union, Bailey
was told by Nye that if he did not keep his mouth shut he might
be discharged. Similarly in March, Russell Bailey told Nye that he
would like to join the Union and Nye replied that if he did so he
would be out of a job. Also, on June 16, after the Respondent received
a demand for recognition and a contract from the Union, Isler showed
the drivers a teletyped message from the New York office stating that
if the drivers joined the Union the Respondent would subcontract
out the drivers work, and stating that if they did not sign individual
contracts they would be out of a job. On June 19, the drivers were
instructed to read and sign another teletyped message which stated
that if they did not sign the contracts the truck service would be dis-
continued June 30. On the same day or the following day Isler offered
Robert and Russel Bailey individual contracts and stated that he
wanted an answer whether they would accept them by June 22.
Further on June 23, when Robert Bailey reported for work, Finley
Isler, then the Respondent's manager, asked Bailey if he had joined
the Union and when Bailey said he had, Isler asked him how much
he had paid to join. When Bailey answered that he had paid $50
plus $5 dues, Isler said, "You just paid $55.00 to lose your job." We
find that each of these statements by Nye and Isler and their require-
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment that the drivers read the teletyped messages and sign the message
on June 19 coerced, restrained, and interfered with employees in their
organizational rights and were in violation of Section 8(a) (1) of the
Act. Also, we find that the offering of the individual contracts to
the drivers on June 16 and on or about June 19, after the Union had
made a demand for recognition and a contract, was in derogation of
the Union's status as statutory bargaining representative, and there-
fore such conduct is also in violation of Section 8 (a) (5) of the Act.io
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, the Board orders that the Respondent, Wings & Wheels, Inc.,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively in good faith with Highway
Truck Drivers and Helpers, Local 107, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of the appropriate unit of
its truckdrivers, helpers, and platform employees at its Philadelphia,
Pennsylvania, operation, excluding office clerical employees, guards,
watchmen, salesmen, and supervisors as defined in the Act, with respect
to rates of pay, wages, hours of employment, and other terms and
conditions of employment.
(b) Bargaining directly with its employees with respect to rates
of pay, wages, hours, or other terms or conditions of employment in
disregard of the representative status of the above-named Union.
(c) Threatening its employees to discontinue any operations or
department or to discharge any of them or to take other reprisals
because of their membership in, or activities on behalf of, the above-
named Union, or any other labor organization.
(d) Interrogating their employees about their membership in the
above-named Union, or any other labor organization, in a manner
constituting interference, restraint, and coercion in violation of Sec-
tion 8 (a) (1) of the Act.
(e) Discouraging membership in the Union, or in any other labor
organization of its employees, by discharging, laying off, or in any
other manner discriminating against any of its employees in regard
to hire, tenure of employment, or any term or condition of employment.
(f) In any other manner interfering with, restraining, or coercing
its employees in their right to self-organization, to form labor organi-
zations, to join or assist the Union or any other labor organization, to
bargain collectively through representatives of their own choosing,
10 Crater Lake Machinery Co., 131 NLRB 1106.
WINGS & WHEELS, INC. 583
or to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8(a) (3) of the Act,
as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Upon request, bargain collectively in good faith with Highway
Truck Drivers and Helpers, Local 107, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, as
the exclusive bargaining representative of Respondent's employees in
the appropriate unit, with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, and, if
an understanding is reached, embody such understanding in a signed
agreement.
(b) Offer to Russell Bailey, Robert Bailey, and James Szymanski
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to seniority or other rights and
privileges, and make them whole for any loss of earnings including
interest thereon suffered by reason of the discrimination against them
in the manner set forth in the section of the Intermediate Report en-
titled "The Remedy."
(c) Preserve and, upon request, make available to the Board or
its agents, for examining and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its office in Philadelphia, Pennsylvania, copies of the
attached notice marked "Appendix." 11 Copies of said notice, to be
furnished by the Regional Director for the Fourth Region, shall, after
having been duly signed by an authorized representative of Respond-
ent, be posted by Respondent immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that
such notices are not altered, defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to com-
ply herewith.
11 In the event that the Board 's Order be enforced by a decree of a United States Court
of Appeals , the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and
Order "
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Highway Truck
Drivers and Helpers, Local 107, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization of our employees, by discharging
any of our employees or otherwise discriminating against any of
our employees in regard to hire or tenure of employment or any
term or condition of employment, because of union membership or
activity of such employees.
WE WILL NOT refuse to bargain collectively in good faith with
Highway Truck Drivers and Helpers, Local 107, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, as the exclusive bargaining representative of our
employees in the appropriate unit described below.
WE WILL NOT bargain directly with our employees in disregard
of the representative status of Highway Truck Drivers and Help-
ers, Local 107, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
WE WILL NOT threaten our employees that we will discontinue
any of our operations or that we will discharge or take other
reprisals against them because of their membership in or activities
on behalf of the above-named or any other labor organization.
WE WILL NOT interrogate our employees concerning their union
membership or activities in a manner constituting interference,
restraint, or coercion.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist High-
way Truck Drivers and Helpers, Local 107, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all
such activities, 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 in Section 8(a) (3)
of the Act, as amended.
WINGS & WHEELS, INC. 585
WE WILL, upon request, bargain collectively with Highway
Truck Drivers and Helpers, Local 107, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of all employees in the ap-
propriate unit described below, with respect to wages, rates of pay,
hours of employment, or other terms or conditions of employment,
and, if an understanding is reached, we will embody such under-
standing in a signed agreement. The bargaining unit is :
All truckdrivers, helpers, and platform employees of Re-
spondent at its Philadelphia, Pennsylvania, operation, ex-
cluding office clerical employees, guards, watchmen, salesmen,
and supervisors as defined in the Act.
WE WILL offer to Russell Bailey, Robert Bailey, and James
Szymanski immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to any rights
and privileges previously enjoyed by them, and we will make
them whole for any loss of pay they may have suffered as a result
of the discrimination against them.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the above-named Union, or any other
labor organization, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a) (3) of the
Act.
WINGS & WHEELS, INC.,
Employer.
Dated---------------- By------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the Selec-
tive Service Act after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional
Office, 1700 Bankers Securities Building, Walnut & Juniper Streets,
Philadelphia 7, Pennsylvania, Telephone Number, Pennypacker
5-2612, if they have any question concerning this notice or compliance
with its provision.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on August 7, 1961 , by Highway Truck Drivers and Helpers,
Local 107 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helpers of America, herein called the Union, the Regional Director for the Fourth
Region of the National Labor Relations Board, herein called the Board, on Janu-
ary 18, 1962, issued a complaint against Wings & Wheels, Inc., herein called
Respondent.
The complaint, in substance, alleges that Respondent (1) since about January 13,
1961, though requested, has failed and refused to bargain collectively with the Union
as the representative of Respondent's employees in an appropriate unit; (2) on
various dates threatened its employees with discharge or layoff if they choose a union
as their bargaining representative, interrogated them concerning their union activi-
ties, conditioned reemployment of employees upon their withdrawal from the Union,
and attempted to force its employees to bargain individually with Respondent con-
cerning their employment and working conditions; and (3) discharged and ter-
minated the employment of Russell Bailey, Robert Bailey, and James Szymanski, and
subsequently refused to reinstate them, because of their union membership and ac-
tivity. By reason of the above Respondent is alleged to have engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5)
and Section 2(6) and (7) of the National Labor Relations Act, as amended (29
U.S.C. Sec. 151, et seq.), herein called the Act.
Respondent has filed an answer denying the commission of any unfair labor
practices.
Pursuant to due notice Trial Examiner Horace A. Ruckel conducted a hearing at
Philadelphia, Pennsylvania, on March 5, 6, and 7, 1962, at which all parties were
represented by counsel.
The parties have filed briefs which I have considered. Upon the entire record in
the case, and from my observation of the witnesses , I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is an Illinois corporation engaged in the business of forwarding freight
to and from airline terminals throughout the various States of the United States,
with administrative offices in New York, New York. During the period relevant to
this proceeding Respondent has operated in over 30 States, with a dollar volume of
services to customers to points outside the State of Pennsylvania valued at more than
$50,000 annually; and has had gross sales of services to customers throughout the
various States valued at more than $500,000 annually.
Respondent urges, however, that in spite of the volume and extent of its commerce,
the Board does not have jurisdiction of it on the ground that it is subject to the Na-
tional Railway Labor Act.' It submitted in evidence (1) a certificate issued it by the
Civil Aeronautics Board authorizing it to engage in business as an air-freight for-
warder, (2) rules, regulations, and charges applicable to airfreight between points in
the United States, (3) air rate freight tariff issued by the Civil Aeronautics Board,
and (4) pickup and delivery tariffs applicable to pickup and delivery zones through-
out the United States.
Respondent had no contract, agreement, record, or document establishing rela-
tionship between it and any airline company which carried or transported merchan-
dise from July 1, 1960, to June 30, 1961, the period relevant to this case. Customers
wishing to ship by airfreight call Respondent directly. Respondent is an entirely
independent entity. Respondent's employees do not take merchandise to or from any
airplanes; this is done by airline employees.
The General Counsel cites Bradley Flying Service, 131 NLRB 437 and Interior
Enterprises, Inc., 122 NLRB 1538, as authority for assertion of jurisdiction in this
case. He states that he has been advised administratively by the National Mediation
Board that it has never asserted jurisdiction over freight forwarded by this Respond-
ent. As was done in the Interior Enterprises and other cases, the Board can request
the National Mediation Board to study the record in this case, determine the ap-
plicability of the Railway Labor Act to Respondent, and determine whether it will
assert its own jurisdiction. Accordingly, I hereinafter find, for the purposes of this
proceeding, that Respondent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
'The National Labor Relations Act, as amended , Section 2 ( 2), provides : "The term
employer . shall not include . any persons subject to the Railway Labor Act "
WINGS & WHEELS, INC. 587
II. THE LABOR ORGANIZATION INVOLVED
Highway Truck Drivers and Helpers, Local 107, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America , is a labor organiza-
tion admitting employees of Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain; other interference , restraint, and coercion
Background
During the early part of 1961 two of Respondent's three truckdrivers, Russell
Bailey and Robert Bailey, became interested in affiliating with a union and so
expressed themselves to Lindsay Nye, then manager of Respondent's Philadelphia
office. In March, Russell Bailey told Nye that he would like to join the Union and
Nye replied that if he did so he would be out of a job. Similarly, in February 1961
Robert Bailey asked Nye if the employees could join the Union and was told that
if he did not keep his mouth shut he might be discharged . Nye was not called as a
witness and the testimony of the two Baileys is uncontradicted.
On March 26 Finley Isler replaced Nye as manager. In April, Robert Bailey
asked Isler if employees in Respondent's New York office were organized and Isler
replied that they were. When Bailey asked him if he thought that the employees
in the Philadelphia branch could ever be organized, Isler said they could not.
During the latter part of May, Russell Bailey, on behalf of Robert Bailey and
James Szymanski, approached Isler and asked him for a wage increase for the three
truckdrivers. Isler told Bailey that he would get in touch with the New York office
and would give him an answer later. A few days later, during the first week in
June, Isler handed each of the three men a form of agreement entitled "Contract
of Employment," which contained provisions for a 10-cent raise in hourly wages,
plus a 5-cent raise to become effective later. The contract was to continue in effect
for 1 year after its execution. A place was provided for signature by "Employer"
and "Employee." The three drivers shortly afterward returned the forms to Isler,
unsigned, and told him that they did not consider the proposed contract fair.
On June 9, Russell Bailey, Robert Bailey, and James Szymanski signed cards
applying for membership in the Union.
1. The appropriate unit
The complaint alleges, Respondent admits,2 and I find that all truckdrivers, helpers,
and platform employees of Respondent at its Philadelphia operation, excluding office
clerical employees, guards, watchmen, salesmen, and supervisors as defined by the
Act, constitute an appropriate unit for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
2. The majority within the appropriate unit
At all times material herein the appropriate unit consisted of three truckdrivers,
Russell Bailey, Robert Bailey, and James Szymanski, all of whom designated the
Union on June 9, 1961,
3. The refusal to bargain
On June 13, 1961, Raymond Cohan, secretary-treasurer and business manager of the
Union, wrote Respondent demanding immediate recognition of the Union as the bar-
gaining representative of the employees in the appropriate unit and requesting Re-
spondent to sign a form of agreement which was enclosed . Respondent received the
Union's letter on the same or following day and Isler mailed it to Respondent's New
York office . Respondent made no reply to the letter . Instead , on June 16 , when the
drivers reported to work, Isler called them over to Respondents' teletype where a mes-
sage had just come through from New York office, and told them to read the tape
recording. The following are pertinent parts of this recording, a two-way
conversation:
Have you explained to the drivers that in all probability we will go ACI in
Phil. if nee . to join union and that means no job?
Have told drivers that U have contacted two CR carriers in Phl. to do job.
What was reaction?
NOE on outside think they think I'm kidding .. .
2 In admitting the appropriateness of the unit Respondent conditions It upon the
applicability of the Act to Its business
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... The fact is we are not. . . . (We) had not included Phi along with
several others but if those don't want a job it will be just as easy to include
Phl.... Did you force these contracts on them or just ask them to sign ... ?
No, did not force them at all ... then got letter fr. union ....
I mean that if they want to take the contract back to the union and tell them
they don't want it, they can sign ours . . . if not ... the drivers will be out of
job.
On June 19 the drivers were directed to read a second communication, in part
as follows:
On June 2, 1961 WNW 3 negotiated and signed a contract with A.C.I 4 to
handle, pick up and delivery in some 30 cities.... In the case of Phila where
we had our own drivers we have told A.C.I. that we have submitted to our
drivers a contract similar to the ones which we have in other cities. We are
hereby informing our drivers that if they do not choose to have their economic
security protected that effective July 1 A.C.I. will perform our pick up and
delivery serv in area A at Phila .. .
If our drivers do desire to protect their economic security it will be necessary
that the signed (c)ontracts be in the hands of our Phila Mgr. by 4 P.M.
Friday, June 23
At 4 P.M. EST Mr. Isler is rqst to inform NY of the status of the wishes of
our Phila. personnel and it is management's decision if the drivers do not
wish to sign the contracts as presented to discontinue its own trucking service
at Phila on June 30 at midnight ....
When the drivers had finished reading the tape Isler directed them to sign it in
acknowledgment, and they did so.
On the same or following day Isler reoffered the two Baileys the individual con-
tracts of employment which they had previously rejected and told them that he
wanted an answer by June 22. Isler admitted while testifying that he did not
offer to incorporate these terms in a contract to be signed by the Union. If the
employees signed these contracts they were to go into effect on the following
Monday, June 26.
On June 23, when Robert Bailey reported for work, Isler, according to Bailey's
testimony, asked him if he had joined the Union. Bailey said he had. Isler then
asked him how much he had paid to join. When Bailey answered that he had paid
$50 plus $5 dues, Isler said, "You just paid $55 to lose your job." Isler admitted
that he said this in substance.
The three drivers again refused to sign the contracts. On the morning of June 26
Respondent called them at their homes, told them that Respondent had decided to
suspend its pickup and delivery service, and not to report for work. The drivers
then went to the union hall, improvised picket signs, and began picketing Respond-
ent's office.
Conclusions
The evidence, much of it undisputed, makes quite clear that from the time Re-
spondent's employees first indicated dissatisfaction with their working conditions
and evidenced their interest in a union, Respondent determined to thwart their
efforts to organize and bargain collectively. To forestall these efforts it offered
its drivers written, individual contracts of employment. When, on June 14, it
received the Union's letter of the previous day claiming to represent the drivers
and demanding recognition as their bargaining agent, it failed to answer the letter
and made no other attempt to communicate with the Union, although it at no time
expressed any doubt as to the Union's majority status. Instead, Respondent reoffered
the employees the individual contracts. It is fundamental that an individual con-
tract of employment is the negation of a collective-bargaining contract, and an
employer's insistence upon it after a collective-bargaining agent has been designated
by its employees, is the negation of collective bargaining.
Respondent contends in its brief that the offer of its form of proposed contract to
the three individual drivers was an offer to "the unit," and that it had the right to
assume that the employees in the unit would show it to the Union's business
manager (which they did), and that this constituted an offer to the Union and a
sufficient reply to the Union's letter of June 13. There is no merit in this contention.
8 Wings & Wheels.
4 Air Cargo International.
WINGS & WHEELS, INC. 589
The Union was the duly designated bargaining agent of the employees, not the unit.
What Respondent did was simply to propose again an individual "Contract of
Employment" to be signed by the "Employer" and "Employee," which the indi-
vidual employees had refused to sign before they selected a bargaining agent. In
so doing, Respondent overtly attempted to circumvent the bargaining representative
and to substitute individual action for collective bargaining.
That Respondent was determined to impose these contracts upon its drivers rather
than bargain collectively with the Union, and to discharge them if they refused to
sign , is set forth with unusual clarity in the two teletype messages of June 16 and 19.
The first, transmitted 2 days after receipt of the Union's letter, stated bluntly that if
Respondent 's employees "go union" Respondent would "in all probability" do
away with its pickup and delivery service and the truckdrivers would lose their
jobs. They were to "take the contract (the one submitted by the Union) back to
the Union and tell them they don't want it," and that "they can sign ours." If
they did not, Respondent would abandon its pickup and delivery service and the
drivers "(would) be out of a job."
In the message of June 19 Respondent again informed the drivers that if they
"(did) not choose to have their economic security protected," by signing individual
contracts, Respondent would do away with pickups and deliveries as of midnight,
June 30, and let the drivers go. The contracts had to be signed by 4 p.m. Friday,
June 23. If they were not, pickups and deliveries would stop as of midnight,
June 30.
Respondent was as good as its word, or better. When it did not receive the signed
individual contracts, Respondent on June 26 discharged its drivers, although this was
4 days prior to the date when pickups and deliveries were to be abandoned.
In spite of these facts, for the most part undisputed, Respondent insists that it
was not Respondent which failed to bargain in good faith, but the Union, and char-
acterizes the events of June 26 as a strike and not a discharge. On the other hand,
it seems to say that it was justified in discharging them because their "insistence"
on the terms of the Union's proposed contract made it, or would make it, impossible
to continue in business. The contention that Respondent both did and did not
terminate its truckdrivers is put as follows in its brief : "Because the employees were
called and told not to report to work on June 26, the Union has charged the Com-
pany with discriminatory discharge of the employees, when the reason for the call
was that the Company could not afford the rate demanded."
There is nothing in the record to support the idea that the Union went on strike
on June 26. There was no strike. There was no threat to strike. As the only evi-
dence of the latter, Respondent relies upon the fact that the printed, standard form
union contract which the Union sent Respondent was dated in longhand to become
effective on June 22 as to this employer. Respondent must have known that this
proposed effective date was subject to negotiation in the same way as the substantive
proposals concerning wages and hours. Nor did the Union's covering letter, though
requesting that Respondent "immediately" recognize the Union, set any date after
which the employees would be on strike.
Respondent sums up its position with the statement in its brief: "Thus it clearly
appears that whether or not the Company had called its employees on the morning
of June 26, they would have been unwilling to work at the rates of pay under which
they had been previously employed." Perhaps so, but being unwilling to work at
these rates is not equivalent to striking, and in point of fact the date of June 22
had already passed without a strike or a threat to strike. The record is too clear
to permit of doubt that Respondent, unwilling that its employees should belong to
the Union, determined not to bargain collectively, on June 26 discharged the entire
bargaining unit. In so doing , Respondent violated Section 8(a)(3), (5 ), and (1) of
the Act.
B. Continued refusal to bargain ; other acts of interference , restraint, and coercion
Russell Bailey testified that in July 1961 , while he was picketing, Isler called him
into the office, showed him his own withdrawal card from the Union, told him that
the Union had never done anything for him, and offered to give Bailey back his job
if he too would obtain a withdrawal card. Bailey refused. According to Bailey,
Isler repeated his offer of employment in subsequent conversations during July,
August, and September, each time making it contingent upon his leaving the Union.
Robert Bailey also testified to similar offers made by Isler shortly after June 26,
and subsequently. Isler testified that although he talked with the three discharged
drivers about coming back to work, he did not "remember" asking them "to tear
up their union cards." This is not equivalent to denying that he asked them to
obtain withdrawal cards, as they testified. I credit the testimony of the two Baileys
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this respect. By conditioning reemployment of the drivers on their abandoning
the Union, Respondent interfered with, restrained, and coerced them in the exercise
of their rights under the Act, and thereby violated Section 8(a)(1) of the Act.5
Beginning in October 1961, Respondent and the Union entered upon a chain
of correspondence which resulted in a meeting between their representatives on
February 6, 1962. At this meeting they discussed reinstatement of the three drivers
and the execution of a contract. Isler admitted that the two were tied together,
and that reinstatement was made contingent upon the signing of a contract. If a
contract was signed that day, one of them would be reinstated the same day.6 Re-
spondent proposed that the wage increases provided for in a contract with the Union
should be the 10-cent an hour increase, and another 5-cent increase after 60 days
contained in its proposed individual contracts. Respondent did not budge from
this position. Making the reinstatement of the drivers discharged for their union
activities contingent upon agreement to these terms, constituted a continuing refusal
to bargain.
Respondent, in its brief, asserts that the drivers are not entitled to reinstatement
because of alleged threats of violence made by them while picketing. I do not con-
sider it necessary to resolve the conflicting evidence on this point. Assuming that
the threats in question were made, Respondent at no time made a point of them
prior to the hearing. On the other hand, Respondent during the months of July,
August, and September offered to reemploy the Baileys provided only that they
withdrew from the Union. Respondent at no time refused them reinstatement be-
cause of any improper picket line activity or, for that matter, mentioned the alleged
occurrences to them although Respondent and the pickets were in almost daily
contact. Such threats, if in fact they were made, cannot be considered now as
grounds for refusal to reinstate the discharged men.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Since I have found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Accordingly, I shall recommend that
the Respondent, upon request, bargain collectively with the Union, and, if an under-
standing is reached, embody that understanding in a signed agreement.
It has been found that Respondent has discriminated with respect to the hire and
tenure of employment of Russell Bailey, Robert Bailey, and James Szymanski. I
shall therefore recommend that Respondent offer them immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to senior-
ity or other rights and privileges. See The Chase Nationdl Bank of the City of New
York, San Juan, Puerto Rico, Branch, 65 NLRB 827. I shall further recommend that
Respondent make them whole for any loss of pay suffered by reason of the discrim-
ination against them. Said loss of pay, based upon earnings which each normally
would have earned from June 26, 1961, the date of the discrimination, to the date
of the offer of reinstatement, less net earnings, shall be computed in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289. See
N.L.R.B. v Seven-Up Bottling Company of Miami, Inc., 344 U S. 344.
Because Respondent, by failing and refusing to bargain in good faith with the
Union and by its discrimination against its three drivers, thereby discouraging mem-
bership in a labor organization and interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed in the Act, has demonstrated a dis-
position to circumvent the Act and to subvert the purposes thereof, the remedy should
be coextensive with the threat of future violations. I shall, therefore, recommend a
broad cease-and-desist order.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
F See : It. E Edwards, d/b/a Edwards Trucking Company, 129 NLRB 385; Barney's
Supercenter, Inc , 128 NLRB 1325, and cases cited therein
6It does not appear clearly in the record whether Respondent ever entirely suspended
Its pickup and delivery service, or whether it first suspended it and resumed it. Isler
testified that Respondent hired a full-time driver on September 25 and another about
October 30, who picked up and delivered.
UNITED BROTHERHOOD OF CARPENTERS , ETC., LOCAL 1622 591
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All truckdrivers, helpers, and platform employees of Respondent at its Phila-
delphia, Pennsylvania, operation , but excluding office clerical employees , guards,
watchmen , salesmen, and supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
4. On, and at all times since June 9 , 1961 , the Union was and has been the ex-
clusive representative of Respondent's employees in the appropriate unit for the pur-
poses of bargaining with respect to rates of pay , wages, hours of employment, and
other terms and conditions of employment within the meaning of Section 9(a) of
the Act.
5. By failing and refusing to bargain collectively with the Union as the exclusive
representative of the employees in the unit described in paragraph 3, above, from
and after June 14 , 1961 , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) of the Act.
6. By discriminating in regard to the hire and tenure of employment of Russell
Bailey, Robert Bailey, and James Szymanski , thereby discouraging membership in
the Union , Respondent has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
7. By engaging in the unfair labor practices set forth in paragraphs 5 and 6, next
above, by threatening its employees with discharge if they chose a union as their
bargaining representative , and conditioning their reemployment on withdrawal from
the Union , Respondent has interfered with, restrained , and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of
Section 8 (a)( 1 ) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, Local 1622 and Local 88, Wood , Wire and Metal Lathers
Union, AFL-CIO and O . R. Karst. Case No. 9O-CD-78. October
29,1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10 (k) of the Act, following a
charge filed by O. R. Karst, herein called the Employer or Karst, al-
leging that United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, Local 1622, herein called the Carpenters Union or Re-
spondent , had induced and encouraged employees to strike for the
purpose of forcing or requiring the Employer to assign particular
work to members of the Respondent rather than to members of Lo-
cal 88, Wood, Wire and Metal Lathers Union, AFL-CIO, herein called
the Lathers Union. A hearing was held before William F. Roche,
hearing officer, between November 20 and 22, 1961. All parties who
appeared at the hearing were afforded full opportunity to be heard,
to examine and cross -examine witnesses , and to adduce evidence bear-
ing on the issues . The rulings of the hearing officer made at the hear-
139 NLRB No. 43.