International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America

National Labor Relations Board - Board Decisions

Jun 26, 1951

94 N.L.R.B. 1494 (N.L.R.B. 1951)

1494 DECISIONS.OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices , and to minimize strife which burdens and obstructs coln-
merce, and thus to effectuate the policies of. the Act, it will be recommended that
Respondent be required to cease and desist from infringing in any manner upon.
the rights guaranteed to its employees by Section 7 of the Act.
I will recommend that the allegation of the complaint that the Respondent has
violated Section 8 ( a) (5) of the Act by refusing to bargain with the Union be
dismissed.
As it has been found that Respondent 's employees since September 18, 1950,
have been on strike caused in part by Respondent ' s unfair labor practices, it will
be recommended that, upon unconditional application made at any time when
the discharge of Collester is still unremedied or within 5 days after he is offered
reinstatement in conformance with the terms of this recommended order, all
strikers be restored to their former positions discharging , if necessary , as many
of those hired on or since September 18, 1950, as will provide places for returning
strikers.
Upon the 'basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following
-- CocCLUsIoNS OF'L.aw•
r
1. International Association of Machiiiists, District Lodge #49, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Lee
Collester, thereby discouraging membership in the Uiiion, Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a)' (3) of the Act.
3. By such conduct and by threats, interrogation,. suggestions of discharge, by
attempted surveillance, and by the other unfair labor practices found in the
body of this Report, Respondent has engaged in land is engaging in unfair labor
practices within the meaning of Section 8 (a). (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of'Section-2 (6) and (7) of the Act.
,5. Respondent has-not refused to bargain with the Union in violation of Sec-.
tion 8 (a) (5) of the Act."
[Recommended Order omitted from publication in this volume.]
INTERNATIONAL BROTHERHOOD -OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA, OVER-THE-ROAD AND CITY TRANS-
FER DRIVERS , HELPERS, DOCKMEN AND WAREHOUSEMEN, LOCAL
UNION No. 41, A. F. L. and FRANK BOSTON. Case No. 17-CB-36.
- Ji nze 0611951
Decision and Order
On January 18, 1951, Trial Examiner Stephen S. Beari issued his
Intermediate Report in the above-entitled proceeding, finding -that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (b) (1) (A) and 8 (b) (2)
of the National Labor Relations Act, as amended, and recommending
94 NLRB No. 214.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1495
that it cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a supporting brief.
The Respondent's request for oral argument is hereby denied, as the
record, the exceptions, and the Respondent's brief, in our opinion, ade-
quately present the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the= Inter-
mediate Report, the exceptions and brief, and the entire record in the
case and hereby adopts the findings, -conclusions, and recommenda-
tions of the Trial Examiner.
We agree with the Trial Examiner that the Employer, by reducing
Boston's seniority for being delinquent in the payment of his union
dues, discriminated against Boston and that such discrimination would
constitute a violation of Section 8 (a)' (3)' of the Act where, as in this
case, the Respondent had not obtained a union-shop contract or a
certification pursuant to Section 9 (e) of the Act.
We have recently considered'a similar loss of seniority -by an em-
ployee pursuant to a contractual-seniority clause identical=to= the one
here involved 'aiid we held that, unless protected, as it was there, by a
valid -union-security agreement, such loss of seniority constituted
discrimination within the meaning of Section 8 (a) (3).1 Our dis-
senting colleague joined in this decision, but apparently regards it
inapplicable here because the instant contract does not contain an
operative union-security clause. He argues that only members are
subject to the Union's bylaws with respect to the payment of dues,
that. there is no evidence that the Union ever sought to compel non-
members to pay dues, and that consequently Boston could have escaped
reduction in seniority for failure to pay dues by resigning from the
Union.
The vice in such argument is that it overlooks the fact that absent
a valid contractual union-security provision, Boston had the absolute
protected right under the Act to determine how he would handle his
minion affairs without risking any impairment of his employment
rights and that the Union had no right at any time whether Boston'
was a member or not a member to make his employment status to any
degree conditional upon the payment of dues without first obtaining
proper authorization under Section 9 (e) of the Act. Thus, in Sub
Grade Engineering, 93 NLRB 406, the Board held that where there
1 Firestone Tire cG Rubber Company, 93 NLRB 981. The contract in this case con-
tained a valid union -security clause which the Board found to have protected the otherwise
unlawful discrimination.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was no security agreement in effect, a union's insistence upon the ap-
plication of its trade rule requiring certain of its members to be given
preference over other members during a layoff was permitting the
union "to arrogate to itself the company's control of employment and
to use such control to accomplish discharges which were clearly dis-
criminatory." 2 In the American Pipe & Steel Corporation case a the
Board pointed out that an employer may not lend his assistance to a
union in compelling adherence to the latter's rules. For, in so doing
an employer would be strengthening the position of such union con-
trary to the well-established principle that an employer's acceptance
of the determination of a labor organization as to who shall be per-
mitted to work for it is violative of Section 8 (a) (3) where no lawful
contractual obligation for such action exists.
Moreover, to assume that Boston's seniority status would have re-
mained unaffected had he resigned from the Union is to overlook the
plain fact that the seniority clause in the contract applies to members
and nonmembers alike, and is sufficiently broad to permit the Union to
decide his seniority status regardless of his nonmembership in the
Union. We are unwilling to make the naive assumption that it would
not have reduced his seniority if he had resigned 4
We also agree that, in the circumstances of this case, the Respondent
by engaging in the conduct described in the Intermediate Report, vio-
lated Section 8 (b) (1) (A) as well as Section 8 (b) (2) of the Act.5
The fact that the Employer may not actively have opposed Boston's
reduction in seniority does not, in our view, exculpate the Respondent
Union."
The Remedy
Having found that the Respondent has engaged in unfair labor
practices, we shall, substantially in accordance with the Trial Exam-
iner's recommendation, order the Respondent to cease and desist from
its unlawful conduct and to take affirmative action necessary to
effectuate the policies of the Act.
We shall further order the Respondent to make whole Frank Boston
for any loss of pay he may have suffered as a result of the discrimina-
' See also American Pipe and Steel Corporation , 93 NLRB 54 ; Air Products, Inc.,
91 NLRB 1381; Firestone Tire and Rubber Company, supra.
8 See footnote 2, supra.
4 Apparently to offset any contemplated resignations before the closed-shop provision
of the contract could be validly invoked after a 9 (e) election , the Employer contractually
agreed "to recommend to all employees that they become members of the Union and
maintain such membership during the life of this Agreement , to refer new employees to
the union representative , and to recommend to delinquent members that they pay their
dues since they are receiving the benefits of this contract ." ( Art. II, 4th par.)
' Member Reynolds desires to note that he concurs in the Trial Examiner ' s failure to
find, as alleged in the complaint , that the inclusion of the seniority clause in the contract
was per se illegal only because no exceptions were filed to the Trial Examiner ' s failure
to make such a finding . (See footnote 7 of the Firestone case, supra.)
0 See Sub Grade Engineering Company; American Pipe and Steel Corporation, supra.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1497
tion against him, in the manner provided for in the Intermediate
Report..
We shall also order the Respondent to deduct from the amount due
to Frank Boston such sums as would normally have been deducted
from his wages by the Employer for deposit with State and Federal
agencies on account of social security and other similar benefits and
to pay to the appropriate State and Federal agencies, to the credit of
Frank Boston and the Employer, a sum of money equal to the amount
which, absent the discrimination, would have been deposited to his
credit by the Employer, either as a tax upon the Employer or on
account of deductions made from Boston's wages by the Employer,
on account of social security or other similar benefits.?
The Respondent shall not be liable for any back pay accruing sub-
sequent to 5 days after the date on which the Respondent notifies the
Employer and Boston, in accordance with our Order, that it with-
draws its request that Frank Boston's seniority be reduced from the
position in which it stood on or about July 15, 1950, and that it re-
quests said Employer to offer him full and immediate reinstatement
to his former or substantially equivalent position, without prejudice
to seniority or other rights and privileges."
Order
. Upon the entire record in this case, and pursuant to Section 10 (c)
of the. National Labor Relations Act, the National Labor Relations.
Board hereby orders that the Respondent, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Over-the-Road and City Transfer Drivers, Helpers, Dockmen and
Warehousemen, Local Union No. 41, A. F. L., its officers, representa-
tives, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Byers Transportation Company,
Inc., its officers, agents, successors, and assigns to reduce the seniority
of, or otherwise discriminate against, any of its employees because
they are delinquent in their payment of dues to International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
.Over-the-Road and City Transfer Drivers, Helpers, Dockmen and
Warehousemen, Local Union No. 41, A. F. L., except in accordance
with Section 8 (a) (3) of the Act.
(b) In any other manner causing or attempting to cause said Em-
ployer, its officers, agents, successors, and assigns, to discriminate
against any of its employees in violation of Section 8 (a) (3) of the
Act.
a Pen and Pencil Workers Union, Local 19593, AFL (Withelmina Becker), 91 NLRB 883.
Pinkerton's National Detective Agency, Inc., 90 NLRB 205.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Restraining or coercing employees of Byers Transportation
Company, Inc., in the exercise of the rights guaranteed them in
Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Immediately notify, in writing, Frank Boston at his last
known place of residence, and Byers Transportation Company, Inc.,
that it withdraws its request that Frank Boston's seniority be reduced
from the position in which it stood on or about July 15, 1950, and
that it requests said Employer to offer him immediate and full rein-
statement to his former or substantially equivalent position, without
prejudice to seniority or other rights and privileges.
(b) Make whole said Frank Boston for any losses of pay and other
incidents of the employment relationship which he may have suf-
fered because of the discrimination against him in the manner de-
scribed in that section of the Board's decision entitled "The
Remedy."
(c) Post in conspicuous places in its business offices, and wherever
else notices to its members are customarily posted, copies of the notice
attached hereto as Appendix A.9 Copies of said notice, to be fur-
nished by the Regional Director for the Seventeenth Region, shall,
after being duly signed by an official representative of the Respondent,
be posted by it immediately upon receipt thereof, and maintained by
it for at least sixty (60) consecutive days thereafter. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Mail to the Regional Director for the Seventeenth Region
signed copies of the notice attached hereto as Appendix A for posting,
the Employer willing, at the office and place of business of the Em-
ployer in Kansas City, Missouri, in places where notices to employees
are customarily posted. Copies of said notice to be furnished by said
Regional Director, shall, after being signed as provided'in paragraph
2 (c) of this Order, be forthwith returned to the Regional Director
for such posting.
(e) Notify the Regional Director for the Seventeenth Region, in
writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
MEMBER MURDOCK , dissenting :
I cannot agree with my colleagues that the Respondent Union in
this case has violated either Section 8 (b) (1) (A) or Section 8 (b)
(2) of the Act.
9In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice before the words, "A Decision and Order," the words,
"A Decree of the United States Court of Appeals Enforcing."
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1499
In its decision the majority has stated that ". . . the Employer,
by reducing Boston's seniority for being delinquent in the payment
of his union dues, discriminated against Boston and that such dis-
crimination would constitute a violation of Section 8 (a) (3) of
the Act. . . ." In my opinion, this conclusion is not warranted by
the facts of this case. The Employer, following its customary pro-
cedure under the terms of its collective bargaining agreement with
the Respondent, submitted the seniority list to the Respondent Union
for settlement of any controversy over seniority standing. The Re-
spondent Union, finding that one of its members had been delinquent,
applied, in a nondiscriminatory manner, the provision of its bylaws
by which its membership had agreed to forfeit seniority for failure
to pay dues promptly. The Employer, bound by its agreement with
the representative of its employees, the Respondent, acquiesced in this
application of the Respondent's rules to one of its members, and
posted a seniority list reflecting Boston's reduction in seniority. -
On these facts I fail to perceive any restraint, coercion, or discrimi-
nation within the meaning of the sections of the Act which the majority
finds have been violated. In what respect was Boston or any other
employee of the Employer restrained, coerced, or discriminated
against? The theory of the majority perforce must be that the Em-
ployer's action to effectuate the Union's bylaw constitutes discrimina-
tion violative of Section 8 (a) (3) because calculated to "encourage"
membership in and adherence to the rules of the Union. Common
sense, however, tells us that the Employer's action would not encourage
membership in the Union 1o As there is no union-security clause com-
pelling membership in the Union, it would be quite apparent to Boston
that if he resigned from the Union he could suffer no detriment in.his
employment but on the contrary would be better off because he would
no longer be subject to the Union's bylaws and subject to reduction in
seniority if he fell behind in his dues payments. Contrary to the
statement in the majority opinion, I do not overlook the fact that the
seniority clause in the contract applies not only to union members but
to all employees. But the majority's conclusion from that fact that
Boston could not have escaped the reduction in seniority he suffered
because of his delinquency by resigning from the Union is a non
sequitur. Their theory apparently is that the seniority clause is some-
how discriminatory and would permit the Union to apply its bylaw
and ask a reduction in seniority for nonmember employees who did
not pay dues. But it is clear that the Union's bylaw is applicable only
to members and there is not even a suggestion in the case that the Union
has sought to compel nonmembers to pay union dues or to penalize them
for not paying. Moreover, the Board's decision in Firestone Tire and
1° Cf. American Pipe and Steel Corporation, 93 NLRB 54.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rubber Company 11 precludes finding a seniority clause such as this
which is nondiscriminatory on its face, to be illegal even though the
Union is given the authority to settle controversies over seniority. The
Board pointed out that "The seniority provision, although permitting
the Union to control seniority to some extent, does not on its face pro-
vide that the Union should do so because of union affiliation." The
Board there specifically refused to proceed on the assumption that a
union would utilize a seniority clause which did not on its face provide
for discrimination. It was precisely for that reason that the Board
refused to find such a seniority clause illegal in the Firestone case.
Even though the majority now inconsistently argue that it is "naive"
to assume that a union will act lawfully rather than unlawfully in
applying such a seniority clause, I nevertheless continue to stand by
that proposition.
I disagree with the majority's suggestion that another part of the.
Firestone decision, the Sub Grade Engineering decision, or the Ameri-
can Pipe and Steel decision, are dispositive.of the instant case. Apart
from the holding that such a seniority clause is not illegal per se, the
only other holding in the Firestone case was that a similar loss of seni-
ority under such a clause did not constitute discrimination in the con-
text of a valid union-security agreement 12 The Sub Grade Engineer-
ing case is not dispositive because there the element of encouragement
of membership in a union which is lacking here was present. The ter-
mination of two employees in that case because they were not members
of Local 101 was discrimination which clearly encouraged membership
in Local 101. I recognize, of course, that in American Pipe and Steel
Corporation, in which I partially dissented, the majority held that dis-
crimination to encourage membership in a union can take place in the
case of one already a member of the union, and I am bound by that
decision. However, I do not regard that case as controlling on these
facts. There, because the employer was willing to condition hire on
referral from the union (which referred only on a rotation basis),
the employee member who was terminated because he had not been
referred by the union in the regular manner, could be said to have been
encouraged by the employer to maintain membership in and adhere
to the rules of the union as the only means of getting employment.
But in the instant case, as pointed out, Boston could retain his employ-
ment and suffer no detriment even if he severed his membership in
the Union.
Accordingly, because I do not believe it can be found that the reduc-
tion of Boston's seniority encouraged membership in the Union, I
1193 NLRB 981.
12 Although I find that there was dicta in the decision that the reduction in seniority
would have constituted discrimination if there had been no valid union -security clause,.this
was not necessary to the disposition of the case , and I dissociate myself from that dicta.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1501
find no basis for a conclusion that the Respondent Union in violation
of Section 8 (b) (2) caused the Employer to discriminate against
Boston "to encourage" membership in the Union.
I likewise do not believe it can be found that the Respondent Union
restrained or coerced Boston in violation of Section 8 (b) (1) (A) by
applying its rules to reduce his seniority. As has been pointed out,
Boston was entirely free to withdraw from membership in the Union
without suffering any detriment in his employment. He chose, how-
ever, to remain in the Union, subject to the Union's rules. The Re-
spondent required only that, as a member of the Union, Boston or any
other member be subject to the organization's governing bylaws; one
of these was his forfeiture of seniority rights upon failure to pay his
dues within a specified time. To hold that this conduct constituted
a violation of Section 8 (b) (1) (A) is, in my opinion, to overlook
the significance of the fact that Boston freely elected to be a member
of the Union and bound by its rules. It seems to me that to find a
violation of the Act in the circumstances of this case is to engage in
an unwarranted invasion of the internal affairs of a labor organiza-
tion-an invasion which I do not believe is sanctioned, much less
required, by the Act. The bylaws of the Union, adopted by a majority
of the membership, govern the conduct and union relationship of all
the members of the organization. Dissidents have it within their
power to change the operating rules of the organization; but in my
opinion such power should be derived from the dissenters' ability to
persuade a majority of their fellow members to the validity of their
opposing viewpoint and thus to amend the regulations controlling the
functioning of the organization. Such change should not be achieved
in the manner approved by the majority in the present case.
For the foregoing reasons, I would find that the. Respondent has
not violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act and
would accordingly dismiss the complaint in this case.
MEMBER STYLES took no part in the consideration of the above De-
cision and Order.
Appendix A
NOTICE
To ALL MEMBERS OF INTERNATIONAL BROTHERHOOD . OF TEAMSTERS,.
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, OVER-THE-
ROAD AND CITY TRANSFER DRIVERS, HELPERS, DOCKMEN AND WARE-
HOUSEMEN, LOCAL UNION No. 41, A. F. L., AND TO ALL EMPLOYEES.
OF BYERS TRANSPORTATION COMPANY, INC., KANSAS CITY, MISSOURI
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT Cause or attempt to cause BYERS TRANSPORTATION
COMPANY, INC., its officers, agents, successors, or assigns, to reduce
the seniority of, or otherwise discriminate against, any of its
employees, because they are delinquent in the payment of dues
to International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Over-the-Road and City Trans-
fer Drivers, Helpers, Dockman and Warehousemen, Local Union
No. 41, A. F. L., except in accordance with Section 8 (a) (3) of
the Act.
WE WILL NOT restrain or coerce employees of BYERS TRANS-
PORTATION COMPANY, INC., its successors or assigns in the exer-
cise of their right to engage in, or to refrain from engaging in,
any or all concerted activities guaranteed in Section 7 of the Na-
tional Labor Relations Act.
WE WILL immediately notify FRANK BOSTON, and BYERS TRANS-
PORTATION COMPANY, INC., that we have no objection to the im-
mediate reinstatement of FRANK BOSTON to his former or to a sub-
stantially equivalent position and standing on the seniority list
of and as an employee of BYERS TRANSPORTATION COMPANY, INC.
WE WILL make whole FRANK BOSTON for any loss of pay and
other incidents of the employment relationship suffered because
of the discrimination against him.
INTERNATIONAL BROTHERIIOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
OVER-THE-ROAD AND CITY TRANSFER DRIVERS,
HELPERS, DOCKMEN AND WAREHOUSEMEN, LOCAL
UNION No. 41, A. F. L.,
Labor Organization.
By ------------------------------------------------- ----
(Representative ) Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
William J. Scott Esq., for the General Counsel.
John J. Manning Esq., of Kansas City, Mo., for the Respondent.
Frank Boston, pro se, for the Charging Party.
STATEMENT OF THE CASE
Upon a charge filed 4ugust 7, 1950, by l`rank'BOston, hereinafter referred to
as `Boston, or the . Charging party, the General Counsel of the National Labor
Relations Board, hereinafter called the General Counsel and the Board, re-
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1503
spectively, by the Regional Director for the Seventeenth Region (Kansas City,
Missouri), issued a complaint dated September 8, 1950, against International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Over-the-Road and City Transfer Drivers, Helpers, Dockmen and Warehouse-
men, Local Union No. 41, A. F. L., hereinafter referred to as the Union or the
Respondent. The complaint alleged that Respondent had engaged in and was
then engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (b) (1) (A) and Section 8 (b) (2) of the National Labor Relations
Act, 61 Stat. 136, as amended, herein called the Act. Copies of the complaint,
the charge, and notice of hearing were duly served on Respondent.
With respect to the unfair labor practices, the complaint alleged in substance,
that by certain acts, no election, as provided in Section 8 (a) (3) and Section
9 (e) (1) of the Act, having been held for the unit to which the Charging Party
belongs, Respondent Union caused or attempted to cause the Charging Party's
Employer to reduce the Charging Party's seniority because he failed to pay dues
on time in accordance with the Union's bylaws, thus attempting to cause and
causing the Employer to discriminate against the Charging Party, and thereby
restraining and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act, and consequently engaging in unfair labor practices in vio-
lation of the sections of the Act set forth in the paragraph above.
Respondent generally denied the allegations of the complaint, pleaded in sub-
stance that the complaint did not state facts sufficient to give the Board juris-
diction of Respondent or the subject matter of the proceeding, that by virtue of
the Respondent's right to prescribe its own rules with respect to the acquisition
or retention of its membership and since a member of a labor organization is
not protected from bylaws passed by the membership, the Board is without
jurisdiction and that the conduct and statements complained of were lawful and.
protected by Section 8 (c) of the Act.
Pursuant to notice, a hearing was held on November 21, 1950, at Kansas City,
Missouri, before Stephen S. Bean, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The General Counsel and the Respondent
were represented by counsel and all participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the opening of the
hearing the General Counsel moved to amend paragraph IX of. the complaint
by substituting "June" for "August." This motion was allowed. Respondent
moved to dismiss the complaint on the ground of an asserted variance between
the charge and the complaint. This motion was denied. At the conclusion
of the General Counsel's case and again at the conclusion of the entire case,
Respondent moved to dismiss the complaint on the grounds that the Charging
Party desires to withdraw the charge, a desire denied him by the Regional
Director and that the complaint assuming the truth of all its allegations, fails
to show facts constituting unfair labor practices within the purview of Section
8 (b) (1) (A) and 8 (b) (2) of the Act. I took both motions under advisement
and hereby deny them. At the close of the hearing General Counsel and Re-.
spondent argued the case. Respondent filed a brief which has been considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Byers Transportation Company, Inc., hereinafter called the Employer, Is a
Missouri corporation. It is engaged as a common carrier in motor transporta-
1504 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of commodities between St . Louis, Missouri , and Kansas City, Missouri,
and between St. Joseph , Missouri , and Kansas City Missouri . It operates sub-
sidiary lines from St. Joseph, Missouri , to Leavenworth , Kansas, and Atchison,
Kansas. It also occasionally makes full trailer deliveries from points on its
regular runs to Wichita , Kansas. It has extensive interline agreements by
which commodities are shipped beyond its own routes by other common . carriers.
A substantial portion of the commodities handled by the Employer terminate or
originate outside the State of Missouri . Its operations are subect to regulation
by the Interstate Commerce Commission . Its annual gross revenue is in excess
of $1,000,000.
I find that the Employer is engaged in commerce and that, under applicable
decisions of the Board , jurisdiction should be asserted in this proceeding.
II. THE CHARGING PARTY AND THE ORGANIZATION INVOLVED
It is admitted and I find that the Charging Party is an employee of the
Employer and a member of Respondent , and that Respondent is a labor or-
ganization admitting to membership employees of the Employer and is the
bargaining representative for employees of the Employer.
III. THE UNFAIR LABOR PRACTICES
Facts
The Employer and Respondent had entered into an agreement in force at the
time all events with which this case is concerned , occurred .. This agreement
provides , inter alia, that seniority shall prevail and be broken only by discharge,
voluntary quit, or more than a 2-year layoff, in which latter event a 2-week
notice of recall shall be given, subsequent to the expiration of which time an
employee not making himself available for work shall lose all seniority rights;
it further provides that a list of employees in order of seniority shall be posted
at their place of employment and that controversies over seniority standing, of
any employee on the list shall be referred to the Union for settlement.
No union-shop contract existed between the Employer and Respondent.
The Charging Party failed to pay his June 1950 union dues to Respondent
until July 5, 1950 . One of Respondent 's bylaws provides that any member fail-
ing to pay dues by the second day of the second month for which payable becomes
in arrears ,, and shall forfeit all seniority rights. Respondent , the General Coun-
sel, and the Charging Party, all construed this bylaw to mean that the failure
of. the Charging Party to pay his June dues on or before July 2, caused the
Charging Party to lose his seniority rights. Thereafter on or about July 15,
1950, Respondent requested the Employer to reduce the Charging Party's senior-
ity, by posting a new list supplied by Respondent . The Employer complied with
Respondent 's request with the result that the Charging Party's seniority was
reduced from the 18th to the 54th position.
'As a,consequence of this conduct , the Charging Party has lost assignments for
two trips for which he otherwise would have potentially received pay in the
amount of $28.05 for each trip.
Discussion and Conclusions
Here we have a case where a union has caused a nonunion shop employer to
penalize one of a union 's own members for his failure to comply with union
bylaws.
Respondent asserts its conduct is not violative of the Act for the reasons con-
tained in its motion to dismiss.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1505
The contention that the complaint should be dismissed because the Charging
Party does not desire to have it prosecuted is without merit. Wine, etc. Workers
Union, et al., 78 NLRB 504.
It is fundamental that once a charge is filed the General Counsel proceeds
not in vindication of private rights but as an agency charged by Congress with
the function of enforcing the Act and bringing about compliance with its
provisions.
The contention that the complaint should be dismissed because of the limiting
proviso to Section 8 (b) (1) (A) that the right of a labor organization to pre-
scribe its own rules with respect to the acquisition or retention of membership
therein, is also without merit. We are not dealing in this case with the
acquisition or retention or membership. Boston had acquired membership be-
fore, and continued to retain membership after, his seniority was reduced.
The proviso is unambiguous. It concerns only the internal regulations of
labor organizations. It has no reference to conduct of the character involved
in this case, where the Union enforced its rules with respect to the timely pay-
ment of dues by causing the Employer to penalize a member in default. The
proviso furnishes no warrant for a union externally to cause an employer to
discriminate against an employee in regard to a condition of employment in
order to encourage membership or the retention of membership in a union nor
does it permit a union to enforce its rules by causing an employer to penalize
or discriminate against members who violate its rules. In other words, the
proviso does not reserve to a union the right to compel obedience by causing
an employer to discipline an offending member, as the Respondent Union did in
this case, or otherwise to reopen the road to discrimination closed by Sec-
tion 8 (a) (3).
Clearly the Employer discriminated against Boston when it reduced his
seniority.
The Respondent arrogated to itself the Employer's control over employment,
and to use such control to accomplish a clearly discriminatory reduction of
Boston's seniority. I find that by its conduct Respondent caused the Employer
to discriminate against the Charging Party in violation of Section 8 (a) (3)
which proscribes unequal treatment of employees in regard to any condition of
.employment to encourage or discourage membership in any labor organization.
When the Respondent executed the contract with the Employer it intended
that the entire agreement, including the provision with respect to seniority, would
be enforced to the.end that employees failing to comply with the bylaw relating
to the payment of dues would be penalized pursuant to its terms. Such enforce-
ment of the contract constitutes discrimination in violation of Section 8 (a) (3).
Consequently by participating on about July 15, 1050, in the enforcement of the
contract Respondent played a part in creating a condition which resulted in the
subsequent discrimination.
Section 8 (b) (2) of the Act, which the Respondent is alleged to have violated,
provides that it shall be an unfair labor practice for a labor organization or its
agents "to cause or attempt to cause an employer to discriminate against an
employee in violation of" Section 8 (a) (3). It has been found that Respondent
caused the Employer to discriminate against the Charging Party in violation of
the latter section. Accordingly, I find that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the
Acc. H. K. Newman, 85 NLRB 725 . I find also that Respondent has restrained
and coerced and is restraining and coercing employees in violation of Section.
8 (b) (1) (A) thereof. Clara-Val Packing Company, 87 NLRB 703. My conclu-
sion that Respondent violated the latter section does not automatically flow from
953841-52-vol. 94-96
1 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
my finding that it violated Section 8 (b) (2). It is predicated mainly on the fact
that the specific act of the Union involving an economic reprisal against its
member was itself violative of Section 8 (b) (1) (A). The Board has held that
a violation of Section S (b) (1) (A) does not invariably stem from a union's
violation of Section 8 (b) (2). But when as here, Respondent's objective was
directed at compelling employees to forego their rights including the right to
refrain from assisting a labor organization, which Section 7 protects, I have con-
cluded that by causing the Employer discriminatorily to reduce Boston's seniority,
the Union restrained Boston in the exercise of his rights guaranteed under See-
tion 7 and thereby violated Section 8 (b) (1) (A).
The normal effect of the discrimination against Boston was to encourage non-
members to join the Union, as well as members to retain their good standing in
the Union, a potent organization whose assistance is to be sought and whose
opposition is to be avoided. The Employer's conduct tended to encourage mem-
bership in the Union' Its discrimination against Boston had the further effect
of enforcing rules prescribed by the Union, thereby strengthening the Union in
its control over its members and its dealings with their employers and was thus
calculated to encourage all members to retain their membership and good stand-
ing either through fear of the consequences of losing membership or seniority
privileges or through hope of advantage in staying in. In deciding this case, I
have been influenced by the rationale of International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, CIO Local 291 (Vernon
J. Luebke),"92 NLRB 96S'and cases therein discussed, rather than by the exposi-
tion of principles contained in Respondent's brief.
Section 9 (c) of the Act, asserting as it does, that the expression of views,
argument, or opinion containing no threat of reprisal or force or promise of
benefit shall not constitute or be evidence of an unfair labor practice, invoked
as a defense in Respondent's answer, was not relied upon in the trial of the
case, and has no applicability to its facts.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in con-
nection with the operations of the Employer described in Section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among'
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
1. The Respondent notify the Charging Party and the Employer, in writing,
that it withdraws its request that the Charging Party's seniority be reduced
from the position in which it stood on or about July 15, 1950, and that it requests
the Employer to offer the Charging Party, immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to his senior-
ity or other rights and- privileges.
1 If, as Respondent appears to suggest, its conduct discouraged membership in a labor
organization, it could be argued that from the plain meaning of Section 8 (a) (3), a
union -would equally violate the Act by causing an employer to discriminate against an
employee in order to rid itself of slow-paying or otherwise recalcitrant members.
JEFFERSON STANDARD BROADCASTING COMPANY 1507
2. The Respondent make whole the Charging Party for any losses of pay
and other incidents of the employment relationship which he may have suffered
by reason of the discrimination against him, by payment to him of a sum of
money equal to the amount which he normally would have earned as wages from
the date of the discrimination to 5 days after the date on which the Union serves
upon the Respondent the above-described written request. The losses of pay,
if any, shall be computed upon a quarterly basis in the manner recently estab-
lished by the Board 2
Upon the basis of the above findings of facts and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By causing, and attempting to cause, the Employer to discriminate against
employees in violation of Section 8 (a) (3) of the Act, the Union has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (b) (2) of the Act.
3. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[ltecommended Order omitted from publication in this volume.]
21 F. W. Woolworth Company, 90 NLRB 289.
JEFFERSON STANDARD BROADCASTING COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL, LOCAL 1229. Case No.
34-CA-170. June 26, 1951
Decision and Order
On August 21, 1950, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had- engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1), (3), and (5) of the Labor
Management Relations Act, 1947, and recommending that the Re-
spondent cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the Respondent requested oral argument and filed
its "Statement of Objections and Exceptions to the Intermediate
Report."
On January 31, 1951, the Board granted the Respondent's request
for oral argument, which was heard by the Board on April 3, 1951,
and in which the Respondent, the General Counsel, and the Union
participated.
94 NLRB No. 227.