New York State Employers Association, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1951

93 N.L.R.B. 127 (N.L.R.B. 1951)

NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 127
NEW YORK STATE EMPLOYERS ASSOCIATION, INC., AND RED STAR Ex-
PRESS LINES OF AUBURN, INC. and RICHARD F. MULLEN
LOCAL 182 OF UTICA AND CENTRAL NEW YORK, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF
AMERICA, A. F. OF L. AND NEW YORK STATE TEAMSTERS COUNCIL and
RICHARD F. MUI LEN. Cases Nos. 3-CA-176 and 3-CB-62. Febru-
ary 8, 1951
Decision and Order
On June 20,1950, Trial Examiner Lloyd Buchanan issued his Inter-
mediate Report in the above-entitled proceeding finding that the
Respondents had engaged in, and were engaging in, certain unfair
labor practices and recommended that they cease and desist therefrom
and take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent Asso-
ciation, the Respondent Company, the Respondent Council, and the
Respondent Local filed exceptions to the Intermediate Report together
with supporting briefs.
The Board l^as reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
-exceptions and briefs, and the entire record in the case and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following modificafions and additions:'
The Unlawful Contracts
We agree with the Trial Examiner that the purported savings
addendum to the collective bargaining contracts between the Asso-
ciation and the Council did not cure the otherwise illegal union-security
provision 'therein 2 The addendum agreement that "all clauses that
are affected by the law shall be considered null and void . . . (until)
declared legal" lacks the required specificity 3 because it fails to iden-
tify which, if any, clauses of the existing contract were to be sus-
pended pendente litem. Indeed, the record reveals that the parties
' The Respondents ' requests for oral argument are hereby denied , as the record and
exceptions and briefs , in our opinion , adequately present the issues and the positions of the
parties
2 With respect to the separate closed-shop contracts between the Company and the Local,
no addendum was ever executed by the contracting parties Because Member Houston con-
siders the savings clause adequate to cure whatever illegality there may have been in the
contracts , he would dismiss all allegations stemming from the alleged illegality. Con-
sequently he dissents from those findings of his colleagues which predicate violations upon
that basis.
See Hickey Cab Company, 88 NLRB 327 ; Reading Hardware Corporation , 85 NLRB 610.
93 NLRB No. 14.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deliberately used the vague language contained in the addendum to
eliminate disagreement among themselves as to which clauses were
affected. Moreover, that the asserted savings addendum was not
intended to, nor did in fact, remove and eliminate the coercive effect
of the unlawful union-security provision of the contract' is estab-
lished by the failure of the parties to notify the employees of the
existence of the addendum,' and by the affirmative evidence that the
union hiring hall and union-determined seniority, contemplated by
the contract as originally written, continued to be followed by the
parties.
In accordance with the Board's views as stated in The Great Atlantic
d Pacific Tea Company, 81 NLRB 1052, and again in Jones d
Laughlin Steel Corp., et al., 83 NLRB 916, we regard the execution
of an illegal discriminatory contract to be per se violative of the right
guaranteed employees to be free to engage in or refrain from engaging
in collective bargaining activities except as permitted by the proviso
contained in Section 8 (a) (3). We find, in agreement with the Trial
Examiner, that" by renewing the illegal contracts with the Council
and the Local, after the amendment to the Act, the Respondent Asso-
ciation and Respondent Company violated Section 8 (a) (1) and 8
(a) (3).
For the reasons stated in the recent Acme Mattress case, 91 NLRB-
1010, we agree with the Trial Examiner that by so renewing the
unlawful contracts, the Coundil and Local joined with the Association
and Company in creating the conditions which would result in discrim-
ination and that they thereby attempted to cause the Employer to
discriminate against employees in violation of Section 8 (a) (3) of
the Act, thereby violating Section 8 (b) (2).
We also find, like the Trial Examiner, that by renewing the con-
tracts with their illegal union-security provision the Respondent
Unions violated Section 8 (b) (1) (A). That section was intended
to prevent unions from coercing and restraining employees. Thus,
the Board has found that the threat by a union organizer to an em-
ployee that in the event of the union's success the employee would
lose his job constitutes illegal coercion in violation of Section 8 (b)
(1) (A) .5 The Board has held a speech by a union organizer to an
audience composed of employees of an employer to the effect that when
the union had achieved success those who did not join would lose their
4 Although changes fn the contract from year to year were expressly noted in each
successive renewal extending the original 1944 contract with the noted intervening modifi-
cations, the addendum in question has not been so incorporated in any of the subsequent
contracts.
5 Smith Cabinet Manufacturing Company, Inc., 81 NLRB 886.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 129
jobs also to be illegal coercion 6 more recently we have held that by
causing the discharge of an employee because of her refusal to engage
in picketing activities, a union violated Section 8 (b) (1) (A) .7
In our opinion, the execution of a closed-shop contract by a union
with an employer likewise coerces and restrains employees in viola-
tion of Section 8 (b) (1) (A). As pointed out by the Trial Examiner,
a consummated closed-shop contract, which by its own terms conditions
employment upon union membership, carries an actual and imme-
diate threat of loss of employment to all employees who might desire
to exercise the protected right to refrain from joining a union. Such
a situation is not equatable to that presented in the Maritime Union
case,8 relied upon by the Respondent, where the union exerted strike
pressure against the Employer to compel him to sign a discriminatory
agreement. As the strike in the NMU case did not result in a closed-
shop contract, the right of the employees to refrain from joining the
union was not impaired by any act of the union. Here, however, the
Council and Local, by consummating discriminatory contracts with
the Association and Company, respectively, created a threat of loss of
employment applicable to employees generally.9
The Discharge of Mullen 10
For the reasons stated by the Trial Examiner , we agree that
Mullen was discharged in violation of Section 8 (a) (3) of the Act.-
We are, however, unable to agree with his conclusion that the Local
',caused" the discharge, within the meaning of Section 8 (b) (2).
Despite the admitted fact of the Local's hostility to Mullen because
of his dual-union activity, we are not convinced by the record that the
Local actively sought to have Mullen discharged by the Company.
Indeed, any inference to that effect is negated by the affirmative show-
ing that the Local permitted the return of Mullen to his job after the
incident of March 16. Thereafter the record contains no direct con-
6 Seamprufe, Incorporated, 82 NLRB 892, enforced 186 F. 2d 671 (C. A. 10, January 2,
1951).
7 Clara-Val Packing Company, 87 NLRB 703.
8 78' NLRB 971.
For the reasons contained in Board Member Reynolds' dissent in Clara-Val Packing Co.,
supra, he does not agree that the Respondent Unions herein violated Section 8 (b) (1) (A).
'° The Board unanimously finds Mullen to have been an "employee " The record makes
It clear that Mullen did not possess supervisory powers within the meaning of Section 2
(11) of the Act. ( New England Transportation Company , 90 NLRB 539). Although he
was the responsible employee during the Company 's night shift, the record demonstrates
that he possessed no authority independent of Bassett, the Company' s operations manager.
In every instance other than routine operations he was required to seek advice and direc-
tions from Bassett. He neither hired nor discharged upon his own responsibility, nor
does the record show that he effectively recommended such actions . When he was absent
from his job his place was filled by another rank-and-file employee.
" For reasons set forth in their separate opinion , Chairman Herzog and Member Rey-
nolds do not join in the decision or the order with respect to Mullen.
943732-51-10
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nection between the Local and the discharge, or the Company's request
for a physical examination and Mullen's refusal to submit thereto.
We are satisfied that the Company voluntarily discharged Mullen in
order to improve its relations with the Local and to avoid further
troublesome incidents.
The Remedy
As recommended by the Trial Examiner, we shall order the Re-
spondent Company to offer Richard F. Mullen immediate and full
reinstatement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges, and to
make him whole for any loss of pay he may have suffered by reason
of the Respondent Company's discrimination against him. Consist-
ent with our new policy,12 and as recommended by the Trial Examiner
we shall order that the loss of pay be computed on the basis of each
separate calendar quarter or portion thereof during the period from
the Respondent Company's discriminatory action to the date of Re-
spondent Company's unconditional offer of reinstatement. The
quarterly periods, hereinafter called "quarters," shall begin with the
first day of January, April, July, and October. Loss of pay shall be
determined by deducting from a sum equal to that which the employee
would normally have earned for each quarter or portion thereof, his
net earnnigs," if any, in other employment during that period. Earn-
ings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter.
We shall also order the Respondent to make available to the Board
upon request, payroll and other records to facilitate the checking of
the amount of back pay duel'
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
1. The Respondent Company, Red Star Express Lines of Auburn,
Inc., Auburn, New York, and its officers, agents, successors, and as-
signs, shall:
12 F. W. Woolworth Company, 90 NLRB 289.
18 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for the unlawful discrimination and the
consequent necessity of seeking employment elsewhere . Crossett Lumber Company, 8
NLRB 440. Monies received for work performed upon Federal , State, county, municipal
or other work-relief projects shall be considered as earnings. Republic Steel Corporation
v. N. L. R. B., 311 U. S. 7.
14 F. W. Woolworth Company, supra.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 131
a. Cease and desist from :
(1) Entering into, renewing, or enforcing the clauses of any agree-
ment with the Respondent Union, Local 182 of Utica and Central New
York, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, A. F. of L., or any other labor
organization, which require its employees to join, or maintain their
membership in, such labor organization as a condition of employment,
unless such agreement has been authorized as provided in the Act.
(2) Encouraging membership in the Respondent Union, or in any
other labor organization of its employees by discharging or refusing
to reemploy any of its employees, or discriminating in any other man-
ner in respect to their hire and tenure of employment, or any term or
condition of employment.
(3) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the Respondent Union or any
other labor organization, to bargain collectively through represent-
atives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities, 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.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Offer to Richard F. Mullen immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges.
(2) Make whole the said Richard F. Mullen for any loss of pay
he may have suffered by reason of its discrimination against him, in
the manner set forth in the section entitled The Remedy, above.
(3) Post at its terminal at Utica, New York, copies of the notices
attached hereto and marked Appendix A and Appendix B." Copies
of said notices, to be furnished by the Regional Director for the Third
Region, shall, after being duly signed by the Respondent Company's
representative and the representative of the Respondent New York
State Employers Association, Inc., respectively, be posted by the Re-
spondent Company immediately upon receipt thereof, and be main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are custo-
marily posted. Reasonable steps shall be taken by the Respondent
16 In the event that this Order is enforced by decree of a United States Court of Appeals
there shall be inserted , before the words, "A Decision and Order ," the words , "A Decree of
the United States Court of Appeals Enforcing."
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company to insure that said notices are not altered , defaced, or cov-
ered by any other material.
(4) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
2. The Respondent Association , New York State Employers Asso-
ciation, Inc., Frankfort , New York, its officers , agents, successors, and
assigns , shall:
a. Cease and desist from :
(1) Entering into, renewing , or enforcing the clauses of any agree-
ment with the Respondent New York State Teamsters Council, or
any other labor organization , which require employees to join, or
maintain their membership in, such labor organization as a condition
of employment , unless such agreement has been authorized as pro-
vided in the Act.
(2) Encouraging membership in the constituent locals of the Re-
spondent Council, or in any other labor organization , by discriminat-
ing in any manner in respect to hire and tenure of employment, or
any term or condition of employment.
(3) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the right to self-organization,
to form labor organizations , to join or assist the constituent locals
of the Respondent Council, or any other labor organization , to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or all of
such activities , 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.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Mail to the Regional Director for the Third Region signed
copies of the notice attached hereto and marked Appendix B, for post-
ing at the terminal in Utica, New York, of the Respondent Company,
in places where notices are customarily posted. Copies of said notice,
to be furnished by the Regional Director for the Third Region, shall,
after being duly signed by the Respondent Association 's representa-
tive, be forthwith returned to said Regional Director for such posting.
(2) Mail to each member of New York State Employers Associa-
tion, Inc., a copy of Appendix B hereto attached, with the request that
said members post such notice immediately upon receipt thereof, and
maintain it for sixty ( 60) consecutive days thereafter , in a conspicu-
ous place where notices to their employees are customarily posted and
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 133'
further request that said members take reasonable steps to insure that
such notices are not altered, defaced, or covered by any other material.
(3). Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
3. The Respondent Union, Local 182 of Utica and Central New
York, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, A. F. of L., and its officers, agents,
successors, and assigns, shall:
a. Cease and desist from :
(1) Entering into, renewing, or enforcing the clauses of any agree-
ment with the Respondent Company, Red Star Express Lines of
Auburn, Inc., or any other employer, which require employees to
join, or maintain their membership in, the Respondent Union as a
condition of employment, unless such agreement has been authorized
as provided in the Act.
(2) In any like or related manner causing or attempting to cause
the Respondent Association, or any other employer, its officers, agents,
successors, or assigns, to discriminate against any employee in viola-
tion of Section 8 (a) (3) of the Act.
(3) In any like or related manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Post at its offices in Utica, New York, copies of the notices
attached hereto and marked Appendix C and Appendix D.1', Copies
of said notices, to be furnished by the Regional Director for the Third
Region, shall, after being duly signed by the Respondent Union's rep-
resentative, and the representative of the Respondent New York State
Teamsters Council respectively, be posted by the Respondent Union,
upon receipt thereof and be maintained by it for sixty (60) consecu-
tive days thereafter,-in conspicuous places, including all places where
notices to its, members are customarily posted. Reasonable steps shall
be taken by the Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(2) Mail to the Regional Director for the Third Region signed
copies of the notice attached hereto and marked Appendix C, for post-
ing, the Respondent Company willing, at the Utica terminal of said
Company, for sixty (60) consecutive days, in places where notices to
employees are customarily posted. Copies of said notice, to be fur-
nished by the Regional Director for the Third Region, shall, after
11 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted , before the words, "A Decision and Order ," the words , " A Decree
of the United States Court of Appeals Enforcing."
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being duly signed by the Respondent Union's representative, be forth-
with returned to said Regional Director for such posting.
(3) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
4. The Respondent Council, New York State Teamsters Council,
and its officers, agents, successors , and assigns, shall:
a. Cease and desist from :
(1) Entering into, renewing, or enforcing the clauses of any agree-
ment with the Respondent Association, New York State Employers
Association, or any other employer, which require employees to join,
or maintain their membership in, the constituent locals of the Respond-
ent Council as a condition of employment, unless such agreement has
been authorized as provided in the Act.
(2) In any like or related manner causing or attempting to cause
the Respondent Association, or any other employer, its officers, agents,
successors, or assigns, to discriminate, against an employee in viola-
tion of Section 8 (a) (3) of the Act.
(3) In any like or related manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act.
b. Take the following affiramative action, which the Board finds
will effectuate the policies of the Act.
(1) Mail to the Regional Director for the Third Region signed
copies of the notice attached hereto and marked Appendix D, for
posting at the offices in Utica, New York, of the Respondent Union, in
places where notices are customarily posted. Copies of said notice,
to be furnished by the Regional Director for the Third Region, shall,
after being duly signed by the Respondent Council's representative, be
forthwith returned to said Regional Director for such posting.
(2) Mail to each constituent local of New York State Teamsters
Council a copy of Appendix D hereto attached, with the request that-
said locals post such notice immediately upon receipt thereof, and
maintain it for sixty (60) consecutive days thereafter, in a con-
spicuous place where notices to their employees are customarily posted;
and further request that said members take reasonable steps to insure
that such notices are not altered, defaced, or covered by any other
material.
(3) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
CHAIRMAN HERZOG and MEMBER REYNOLDS, dissenting in part only :
We are unable to agree with the majority that Mullen was dis-
charged by the Company to appease the Union by eliminating a
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 135
dissident member from its ranks. In rejecting the Employer's de-
fense that-Mullen was in fact discharged for his admitted refusal
to submit to a physical examination during the period he was off
sick, the majority apparently relies on the Trial Examiner's con-
clusion that "the Company in effect demanded the examination without
right or reason; the demand was arbitrarily made as a pretext and
in order to be violated, and Mullen's refusal was seized upon as a
means of discrimination." However, our appraisal of the facts leads
us to a different conclusion. Thus, the record shows that pursuant
to advice from the Local, Mullen returned to work on March 20, 1949,
at which time he became ill and obtained permission to go home.
Thereafter, and while Mullen remained away from work on what
amounted to sick leave, he appears to have been up and around as
indicated by his separate meetings with the Company and certain
members of the Local. In these circumstances, the Company on March
28 or 29 requested Mullen to submit to a physical examination by its
doctor and Mullen flatly refused, stating that the Company could
consult his doctor or the Veterans Administration Hospital. Several
days later, Mullen received a letter stating that he was discharged for
failing to undergo the requested medical examination.
In our opinion, the Company's insistence upon an examination by
its doctor was no more unreasonable than Mullen's insistence that
the Company go elsewhere for medical information. Indeed, there
is no basis for concluding that the Company requested the examination
under the belief that Mullen would not submit. That the Respondent
had not required Mullen or other employees to submit to a physical
examination during previous illnesses is not controlling, for here
there were circumstances suggesting possible malingering. Moreover,
the fact that Mullen later entered a hospital can in no wise retro-
actively incriminate the Company for its prior discharge of Mullen
for refusing to submit to the examination.
Under all the circumstances, we find that Mullen was discharged
for cause and would therefore dismiss both the $ (a) (3) and the
8 (b) (2) allegations of the complaint with respect to his discharge.
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT enter into, renew, or enforce the clauses of any
agreement with LOCAL 182 OF UTICA AND CENTRAL NEW YORK,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-'
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
HOUSEMEN AND HELPERS OF AMERICA, A. F. OF L., or any other labor
organization, which require our employees to join, or maintain
their membership in, such labor organization as a condition of
employment, unless such agreement has been authorized as pro-
vided in the National Labor Relations Act, as amended.
WE WILL NOT encourage membership in LOCAL 182 OF UTICA AND
CENTRAL NEW YORK, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F.
OF L., or in any other labor organization of our employees by
discharging any of our employees or discriminating in any other
manner in respect to their hire or tenure of employment, or any
term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist LOCAL 182 of
UTICA AND CENTRAL NEW YORK, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMER-
ICA, A. F. OF L., or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and 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 of such activities, 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 Sec-
tion 8 (a) (3) of the Act.
WE WILL OFFER to Richard F. Mullen immediate and full rein-
statement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay suffered as a result of the
discrimination against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing of Local 182 of
Utica and Central New York, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. of L., or
any other labor organization except to the extent that this right may
be affected by an agreement in conformity with Section 8 (a) (3) of
the Act.
RED STAR EXPRESS LINES OF AUBURN, INC.,
Employer.
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.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC.
Appendix B
NOTICE TO ALL EMPLOYEES
137
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 enter into, renew, or enforce the clauses of any
agreement with NEW YORK STATE TEAMSTERS COUNCIL or any
other Tabor organization, which require employees to join, or
maintain their membership in, such labor organization as a con-
dition of employment, unless such agreement has been authorized
as provided in the National Labor Relations Act, as amended.
WE WILL NOT encourage membership in the constituent locals of
NEW YORK STATE TEAMSTERS COUNCIL or in any other labor or-
ganization by discriminating in any manner in respect to hire
or tenure of employment, or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist the
constituent locals of NEW YORK STATE TEAMSTERS COUNCIL or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
All employees of members of this Association are free to become,
remain, or to refrain from becoming or remaining, members in good
standing of the constituent locals of New York State Teamsters Coun-
cil or any other labor organization except to the extent that this right
may be affected by an agreement in conformity with Section 8 (a) (3)
of the Act.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC.,
Employer.
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.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix C
NoTICE, TO ALL MEMBERS
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 members that:
WE WILL NOT enter into, renew, or enforce the clauses of any
agreement with RED STAR EXPRESS LINES OF AUBURN, INC., or
any other employer, which require employees to join, or main-
tain their membership in, this labor organization as a condition
of employment, unless such agreement has been authorized as
provided in the National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner cause or attempt
to cause RED STAR EXPRESS LINES OF AUBURN, INC., or any other
employer, its officers, agents, successors, or assigns, to discriminate
against an employee in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act.
LOCAL 182 OF UTICA AND CENTRAL NEW YORK, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
A. F. OF 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.
Appendix D
NOTICE TO ALL MEMBERS
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 all members that :
WE WILL NOT enter into, renew, or enforce the clauses of any
agreement with NEW YORK STATE EMPLOYERS ASSOCIATION or any
other employer, which require employees to join, or maintain their
membership in, any labor organization as a condition of employ-
ment, unless such agreement has been authorized as provided in
the National Labor Relations Act, as amended.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC.
WE WILL NOT in any like or related manner cause or attempt to
cause NEW YORK STATE EMPLOYERS ASSOCIATION or any other
employer, its officers, agents, successors, or assigns, to discriminate
against an employee in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranted in Section 7
of the Act.
NEW YORK STATE TEAMSTERS COUNCIL,
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
Messrs. William J. Cavers and John C. McRee, of Buffalo, N. Y., for the General
Counsel.
Messrs John P. Doyle and Harry A. Gleason, of Auburn, N. Y, for the Re-
spondents Association and Company.
Mr. John J. Walsh, of Utica, N. Y., for the Respondents Union and Council.
Mr. Arthur A. Darrigrand, of Utica, N. Y., for the Charging Party.
STATEMENT OF THE CASE
Upon p second amended charge duly filed on September 22, 1949, by Richard
F. Mullen,' herein called Mullen, the General Counsel of the National Labor
Relations Board,2 by the Regional Director for the Third Region (Buffalo, New
York), issued a complaint dated February 10, 1950, in Case No. 3-CA-176,
against New York State Employers Association, Inc., herein called the Associa-
tion, and Red Star Express Lines of Auburn, Inc., herein called the Company,
alleging that the Association and the Company had engaged in and were engaging
in unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act.
Upon a charge duly filed on September 15, 1949, by Mullen, the General Counsel,
by the aforementioned Regional Director, issued a complaint dated February
10, 1950, in Case No. 3-CB-62, against Local 182 of Utica and Central New
York, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. of L., herein called the Union, alleging that the Union
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and
(7) of the Act.
I At the opening of the hearing, and again before its close, the complaints and all papers
and proceedings were amended to show the correct names of the Charging Party and the
Union, as herein set forth.
2 The General Counsel and his representatives at the hearing are herein referred to as the
General Counsel, and the National Labor Relations Board as the Board.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The cases were consolidated by order of the Regional Director dated February
10, 1950. Copies of both complaints with charges attached, order of consolida-
tion, and notice of hearing were duly served by the General Counsel upon all other
parties.
Thereafter, upon a third amended charge in Case No. 3-CA-176, and upon a first
amended charge in Case No. 3-CB-62, both filed by Mullen on April 11, 1950, the
General Counsel, by the aforementioned Regional Director, issued amended
complaints alleging as aforesaid against the Association and the Company in
Case No. 3-CA-176; and including New York State Teamsters Council, herein
called the Council, as a Respondent in Case No. 3-CB-62, and alleging therein
as aforesaid against the Union and the Council.
With respect to unfair labor practices, the amended complaint in Case No.
3-CA-176, as subsequently modified to conform to the proof, alleged in substance
that the Association and the Company, a member of the Association, violated
Section 8 (a) (3) of the Act by execution of illegal union-security contracts with
the Council and the Union respectively in August 1944, and renewals by which
such contracts continued and remain in effect, and with respect to the Company
only, by its discharge of its employee, Mullen, on March 31, 1949, and subsequent
refusal, because of the Union's demands and his union activities, to reinstate
him; and Section 8 (a) (1) by said alleged acts and, with respect to the Company
only, by its statements, threats, and questions which encouraged support of the
Union and concerned its employees' union activities.
In its answer to the amended complaint, the Company denied that the union-
security clauses in the Association's 3 contract with the Union were in effect or
enforced after August 22, 1948, and, while admitting the discharge and refusal
to reinstate Mullen, denied that it had committed the alleged unfair labor prac-
tices in connection therewith or with its employees' union activities ; alleged that
the Company. the Association, and the Union agreed in writing on August 2,
1948, that the union-security clauses in the Association's contract and any clauses
"which were contrary to" the Act were null and void; and as a separate defense,
alleged further that Mullen was a supervisor as defined in the Act. The Asso-
ciation answered similarly except for a formal denial of knowledge of the dis-
charge or refusal to reinstate, and an additional separate defense in which it
denied that it engaged in interstate commerce within the meaning of the Act.
With respect to unfair labor practices, the amended complaint in Case No.
3-CB-62. as subsequently modified to conform to the proof, alleged in substance
that the Council and the Union, a member of the Council, violated Section 8 (b)
(2) of the Act by execution and renewals of the aforementioned contracts with
the Association and the Company, and, with respect to the Union only, by demand-
ing that the Company discharge Mullen although he was a member of the Union in
good standing; and Section 8 (b) (1) (A) by said alleged acts and, with respect
to the Union only, by statements and threats concerning membership in the Union
and dual union activities.
In its answer to the amended complaint, the Union denied that the union-secu-
rity clauses in the contracts were in effect or enforced after August 22, 1948, and
after a formal denial of knowledge of the discharge, denied that it had committed
the unfair labor practices in connection therewith or with membership in the
3 Reference to the various contracts was incorrectly made in the original and amended
complaints and in the answers thereto. Before the close of the hearing, a motion was
granted to conform the pleadings to the proof in this connection , the Company and the
Union entered into two series of agreements , which are hereinafter described , and the
Association and the Council entered into two similar series of agreements.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 141
Union or dual union activities; alleged that the Company, the Association,. the
Union, and the Council agreed in writing on August 2, 1948, that the union-
security clauses in the contracts were null and void; and alleged further that
Mullen was a supervisor as defined in the Act. The Council answered similarly.
Pursuant to notice, a hearing was held at Utica, New York, from February 27
to March 1, 1950, inclusive, and on May 23, 1950, before the undersigned Trial_
Examiner duly designated by the Chief Trial Examiner. All parties were repre-
sented by counsel' participated in the hearing, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues.
At the opening of the hearing, the undersigned allowed certain items in a
demand for a bill of particulars filed by the Union and disallowed other items.
Particulars concerning the items allowed were orally stated on the record by the
General Counsel. At the conclusion of the General Counsel's case-in-chief, the
Respondents6 moved to dismiss the complaints in their entirety, and specifically
as to separate allegations : these motions were at that time denied. The motions
were renewed at the close of the hearing on March 1; decision was then
reserved, and they are now disposed of in accordance with the conclusions and
recommendations below. Motions were granted to conform all pleadings to the
proof with respect to matters not affecting the substance of the issues. After
the close of the hearing on March 1, briefs were received from the Respondents °
and the General Counsel.
On motion of the General Counsel filed on April 13, 1950, to amend the com-
plaints, bring in the Council as an additional party in Case No. 3-CB-62, and
reopen the hearing, the undersigned issued an order to show cause and there-
after, on May 3, 1950, an order granting said motion and reconvening the hearing
on May 23, 1950. On the latter date, it was stipulated at the hearing that the
record theretofore made shall, to the extent that it is applicable, also be con-
sidered the record with respect to the Council. The parties thereafter waived
further oral argument and the submission of additional briefs.
Upon the entire record in the case and from his observation of the witnesses, the
undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY AND THE ASSOCIATION
The following was stipulated with respect to the Company :
The Company is a New York corporation, engaged as a common carrier
in the business of transporting freight and general merchandise in interstate
commerce. It maintains its principal office in Auburn, New York, and has
trucking terminals in Auburn, Buffalo, Rochester, Syracuse, and Utica in
New York State, and in North Bergen, New Jersey. The Company, in the
course and conduct of its business operations during the calendar year 1949,
transported freight and merchandise for which it received revenue in excess
4 The Council was named a party on May 3; it did not appear prior to that date. Counsel
for the Company and the Association did not appear on May 23, but counsel for the other
Respondents and General Counsel stated on the record that he had declared his willingness
to consent to and join in all stipulations entered into on behalf of the Union and the
Council. It appeared unnecessary to reopen the record to include a letter of confirmation
sent to the undersigned by Counsel for the Company and the Association after the close of
the hearing.
° This term here refers to the Association, the Company, and the Union jointly.
° The Council thereafter adopted the brief submitted by the Union
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of $1,000,000 approximately 50 percent of which was derived from transport-
ing freight and merchandise between New York State and other States in
the United States and in transporting freight and merchandise moving in
interstate commerce. The Company is now and at all times since January 1,
1944, has been a member of New York State Employers Association, Inc.
The following was stipulated with respect to the Association :
The Association is a New York corporation with its principal office and
place of business located at Frankfort, New York. It is composed of
approximately 68 members, who are employers engaged in the operation of
motor freight lines in Western and Central New York State, as common
carriers, licensed by the Interstate Commerce Commission. The Association
is organized for the purpose, among other purposes, of obtaining uniformity
and stability in labor relations between its members and the various unions,
including Local 182 of Utica and Central New York, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
A. F. of L., representing employees of said members, and of conducting labor
negotiations and executing labor contracts on behalf of all of the said
members. The members of the Association in the course and conduct of
their business operations during the calendar year 1949, transported freight
and merchandise valued in excess of $100,000,000 approximately 75 percent
of which was transported between New York State and other States in the
United States, or transported in interstate commerce.
It is found that the Company and the Association, and each of them, are
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 182 of Utica and Central New York, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., is a
labor organization and admits to membership employees of the Company.
New York State Teamsters Council is a labor organization which represents
various locals of the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, A. F. of L., in New York State.
III. THE UNFAIR LABOR PRACTICES
A. The collective bargaining agreements
1. Validity
There were received in evidence' a copy of a contract covering local em-
ployees, such as city drivers, peddle-run drivers, and terminal employees, and
entered into between the Company and the Union on August 1, 1944; and stipu-
lations dated respectively April 15, 1946, July 1, 1947, July 1, 1948, and July 31,
1949, extending the contract with modifications which are not immediately
relevant. Also received in evidence' were a contract and extensions covering
over-the-road drivers, likewise entered into between the Company and the Union.
It was testified that after the Association negotiated master agreements with
the Council, the individual members of the Association executed "identical
agreements" with the local Union involved ; and it was stipulated that the terms,
4 General Counsel 's Exhibits 2-A through 2-E.
General Counsel 's Exhibits 5-A through 5-E.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. i43
of such master agreements and modifications thereof entered into between the
Association and the Council, and covering local employees and over-the-road
drivers, are respectively similar to the terms of the aforementioned contracts
and extensions which were received in evidence. One of the purposes of the
Association is "obtaining uniformity and stability in labor relations" between
its members and the Union herein and other unions. Acting as agent for the
Company and its other members in "conducting labor negotiations and executing
labor contracts" on behalf of its members, the Association is an employer under
Section 2 (2) of the Act °
The union-security provisions of the contracts, as originally entered into and
as extended, are as follows :
The employer will employ when available such members of the Local as
it may from time to time require in its business within the class or classes
of work hereinafter provided and designated to be covered by this agree-
ment, provided that a sufficient number of competent members are available
to meet such requirements. If the Local should not have any members in
good standing available, the employer may employ such other person, or
persons who are not members of the Local, but such person or persons must
become members of the Local within twenty-four hours after the commence-
ment of such employment, subject to its rules and regulations, providing
the Union accepts such applicant or applicants otherwise they shall be
replaced by members of Local 182 in good standing within twenty-four hours
after members are available. .. .
When outside vehicles are engaged, they shall be operated by members
of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, Local #182 in good standing, provided such services
are satisfactory. . . .
If any hired equipment is used by the Company, same shall be operated
by the present employees of the Company, and if the Company does not
have any employees to drive said equipment, the Company must call the
Union for drivers, and said drivers shall be subject to the conditions of this
agreement and shall receive the wage scale as specified herein. - .. .
It is agreed that any employee who is in arrears on his dues or assessments
to the said Local in excess of three days, shall be considered as not in good
standing, and upon the request of the Union, the employer agrees to suspend
such member or hold him out of service until he is again in good standing
with said Local."
It does not appear that the Union has been certified by the Board under Sec-
tion 9 (e) (1) of the Act as authorized to execute any form of closed-shop con-
tract. Nor could the above provisions have been ratified in a 9 (e) (1) election,
as they concededly provide for a greater degree of union security than is per-
mitted by Section 8 (a) (3).
- In recognition of the restrictive effect of the 1947 amendment, the following
letter appears to have been sent by the president of the Association to the
secretary of. the Council, who is also president of the Union herein :
Waterfront Employers Association of the Pacific Coast, et al., 71 NLRB 80
10 General Counsel's Exhibit 2-A, Article I, Clauses 1 and 5, and Article IV, Clauses 2 and
17; General Counsel's Exhibit 5-A, Article I, Clauses 1 and 5, and Article IV, Clauses 6
and 8.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NEW YORK STATE EMPLOYERS' AssoCIATION, INC.
SYRACUSE, NEW YORK, August 2, 1948.
MR. DEPERNO:
As per our discussion between your State Committee and our State Com-
mittee as regards the recently passed Taft-Hartley Law, pending clarifica-
tion of the many phases of the Law that may effect (sic) one or more
clauses in our 1944 contract, we hereby agree that all clauses that are
affected by the law shall be considered null and void but it is understood
that when and if such clauses are declared legal, they shall immediately
become part of our statewide agreement and shall be considered in full
force and effect.
Consider this as part of the Master Stipulation that was signed between
us and please attach this to the Master Stipulation you have and sign the
other copy enclosed herein and mail back to me.
Yours very truly,
J. C. DURKIN, President,
R. F. DEPERNO, Sec.,
N. Y. S. Teamsters Council.
8-5-48
The president of the Association testified that neither when this letter was
prepared nor at the time of the latest extensions, in July 1949, was there any
agreement with the Council concerning which specific clauses were in violation
of the Act. The secretary of the Council testified similarly that there was a
difference of opinion concerning which paragraphs of the contract might be
illegal under the Taft-Hartley Act, and general language was employed in the
letter to avoid delay.
It was testified on behalf of the Company that it did not sign a copy of this
letter and that the letter was not called to the attention of its employees, although
it was anounced to the supervisory employees at an operational meeting in
Auburn' In any event, this purported severability or nullity arrangement does
not eliminate any illegality attaching to the union-security provisions ; the letter
"can only be construed to mean that unless and until a tribunal authorized to
interpret and administer the law determines that a particular discharge for
membership in the [Union] is unlawful, the union-security provisions of the
contract are fully effective." la "The very existence in the contract of the union-
security provision therefore acts as a restraint upon employees. . . ." 14
The instant case demonstrates the practical wisdom of such broad propositions.
The Respondents point to an attempt to limit a closed-shop agreement, existent
and extended, although no notice of such limitation was given to the employees
concerned. Were the attempted limitation valid, notice thereof would surely
relieve the employees and leave them in a different attitude with regard to their
right and ability to engage in collective bargaining than if they believed that the,
11 General Counsel's Exhibit 2-F. It was stipulated that this letter refers to the Asso-
elation-Counsel agreements covering local employees and over-the-road drivers.
12 While Mullen testified that he knew of one nonunion employee, this was in connec-
tion with his complaint that the Union was not sufficiently concerned with the interests of
its members . So far from indicating that the closed -shop provisions of the contract were
inoperative and were so regarded by either the Respondents or the employees, this testimony
manifests the recognition accorded to such provisions , pointing only to a specific case as a
violation thereof
la Reading Hardware Corporation , 85 NLRB 610.
14 Hickey Cab Company, 88 NLRB 327.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. ' 145
agreement remained in effect without change. But to recognize the importance'
of that distinction is to admit that the mere entry into such an agreement tends
to affect employees in their collective bargaining rights 10
2. Conclusions as to the Association and the Company
The uncontroverted facts indicate that the Association and the Company have
violated Section 8 (a) (1) and (3)18 by continuing their contracts with the
Union.
3. Conclusions as to the Council and the Union
a. Section 8 (b) (2)
It appears that the Board has not yet decided the question, which will be
considered a priori, whether mere execution and recognition of such contracts
constitute violation of Section 8 (b) (1) (A) and (2). To state the proposition
generally, if execution of an unauthorized contract constitutes interference
within the meaning. of Section 8 (a) (1), and discrimination within the mean-
ing of Section 8 (a) (3) ; and if a strike to obtain an unauthorized agreement
constitutes an attempt to cause an employer to discriminate against an employee'
in violation of Section 8 (b) (2)," it is concluded that execution and recogni-
tion of such contracts likewise constitute interference and discrimination, and
cause an employer to discriminate in violation of Section 8 (b) (2):6
b. Section 8 (b) (1) (A)
The cases latterly cited,19 involved strikes called to obtain illegal contracts,
and followed the decision in the National Maritime Union case 20 with respect
to Section 8 (b) (1) (A). It was held in all of those cases that such strikes,
peacefully conducted, violate Section 8 (b) (2), but not Section 8 (b) (1) (A).
The instant case, however, is readily distinguished from the National Maritime
Union case, where the Board declared that ". . . the efforts of the union were
not directed against a particular individual or group of individuals" when it
attempted to cause the employer to discriminate within the meaning of Section
8 (b) (2), and that such efforts therefore did not constitute coercion and
is It appears from the testimony of the union president that the Union determines em-
ployees' (if they are members of the Union) seniority, a most important element in their
conditions of employment, but that it has not established seniority for nonunion employees.
Such a situation , when considered with the seniority provisions of the contracts (G. C.
Exhibit 2-A, paragraph I, clause 2; paragraph 3, clause 1. G C Exhibit 5-A, paragraph
III, clause 1.) exceeds the permissive provision of Section 8 (a) (3), and is a restraint on
employees in the exercise of their rights. This issue was not alleged or tried, however,
and no finding is made with respect thereto
16 The cases variously refer to both subsections Cf Julius Resnick, Inc, 86 NLRB 38
(Section 8 (a) (1), not derivative), also representation cases, which refer to "restraint"-
Reading Hardware Corporation, 85 NLRB 610, and cases cited therein ; Amalgamated Meat
Cutters, etc. (Great Atlantic and Pacific Tea Company), 81 NLRB 1052, and cases cited
therein (Section 8 (a) (3) ); In addition, of course, violation of Section 8 (a) (3) con-
stitutes a derivative violation of Section 8 (a) (1).
"International Union, United Mine Workers of America, et at. (Jones & Laughlin Steel
Corporation, et al ), 83 NLRB 916, Amalgamated Meat Cutters, etc, supra
16 This section is also violated, as hereinabove suggested in the consideration of the valid-
ity of the collective bargaining agreements (footnote 15), by their seniority provisions and
the determinations thereunder, which do not conform with the proviso of Section 8 (a) (3).
19 See footnote 17
21 National Maritime Union of America (The Texas Company, et al ), 78 NLRB 971.
943732-51-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restraint within the meaning of Section 8 (b) (1) (A). In the American
Newspaper Publishers Association case;' the Board referred to its decision in
the National Maritime Union case as follows :
We held its proscriptions were limited to situations involving actual or
threatened economic reprisals and physical violence by unions or their
agents against specific individuals or groups of individuals in an effort to
compel them to join a union or to cooperate in a union's strike activities.
Relying on that principle, the Board in the ANPA case, reversed the Trial
Examiner's finding "that the 8 (b) (1) (A) violations occurred in those instances
where the union had been successful in causing the employers to continue `closed-
shop' hiring practices." However, such practices to which the Board there
referred did not stem from a contract or from the employment conditions and
procedures which the Union was enforcing under a contract, but from the
alleged coercion of members "to cooperate in/the successful operation of the
unlawful `Collective Bargaining Policy' by threatening to expel recalcitrants
from membership under provisions, of intraunion rules ... " ; 22 and, as the
Board indicated, any such coercion would be covered by the proviso to Section
8 (b) (1) (A).
We recognize, without now repeating, the analysis of legislative intent which
was made in the National Maritime Union case. But we do not here consider
contract demands, negotiations, or a strike ; the goal of contracts in esse had
already been attained. For "the coercive conduct which sometimes accompanies
a strike" 23 is substituted the inherently 24 coercive effect of those terms of the
contracts which are now directed at the employees ; and the provisions of those
contracts involve very real "economic reprisals . . . to compel (all of the Com-
pany's employees) to join a • union." 25 Adopting the language employed in the
legislative debate and quoted in the Perry Norvell case, it must be recognized
that an illegal agreement cannot be used "in a legitimate way."
If we choose to consider an existing dichotomy, it can be seen that a strike
is directed at employers, as recognized in the cases headed by National Maritime
Union, supra; while the fruition of the Union's efforts, or that portion which is
represented in the restrictive membership clauses, is directed at 26 employees.
The illegal "union-shop" contract, in the language of National Maritime Union,
"had as its prime objective . . . the coercing of non-members to join the union."
Should issue be taken with use of the term "prime" in this connection, it must
nevertheless be admitted that the purpose and natural tendency 27 of the contract
was at least in no small degree coercive. ("The protection of employment in-
terests of (union) members" may be cited as an objective even in cases of physi-
cal coercion of nonmembers.)
Furthermore, the physical restraint imposed by a strike may be limited to
specific individuals ; it may constitute a "threat against employees" 23 limited
21 International Typographical Union, et al . ( American Newspaper Publishers Associa-
tion ), 86 NLRB 951.
22 It was agreed that such "expulsion would deprive the expelled members of certain
economic perquisites of the union-membership relation
23 Perry Norvell Company, 80 NLRB 225.
24 Cf. dissent, Clara-Val Packing Company, 87 NLRB 703 This argument is also appli-
cable to and supports the conclusion, supra, concerning violation of Section 8 (b) (2).
22 International Typographical Union, it al , supra.
2e Idem.
27 Julius Resnick , Inc, supra ; Minnesota Mining & Manufacturing Company, 81 NLRB
557.
28 Cong Rec, May 2, 1947, p. 4563, cited in National Maritime Union case, supra.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 147
in number. But the coercive effect of a restraining clause is not limited,R9 and
although it was the Congressional intent to preserve the right to strike, there
is no indication of intent to permit the restraining effect of an illegal contract
upon employees. While recognizing the discussion which centered around the
right to strike, we need not overlook the reference to threats of nonviolent ac-
tion.30 There is no indication of legislative intent to limit in this connection the
language of the statute or the Board's recognition thereunder of the effect of a
union-security provision.
Mere execution and observance of illegal union-security contracts is therefore
conduct which is directed at compelling employees to forego the rights which
Section 7 protects ; and such conduct restrains or coerces employees in the
exercise of such rights.31 To the extent that such contracts constitute cause
for employer discrimination against employees under Section 8 (b) (2), they
constitute restraint and coercion of employees in violation of Section 8 (b) (1)
(A) ."
B. The discharge
1. Mullen's status
Mullen, a member of the Union, went to work for the Company at Utica in
March 1947, at About the time the Company established a terminal in that city.
For approximately 4 months he worked as a city driver and intermittently on a
peddle-run to Rome ; then he bid for, and by virtue of seniority, obtained an
over-the-road run, on which he was employed for some 8 months. In March
1948, the Company decided to put on a night crew, and Hassett 33 asked whether
he would take the position of night foreman.84 Mullen hesitated, saying that he
would have less take-home pay" on the new job. But when he was asked again,
he accepted because, he said, the work would be easier.
29 Hickey Cab Company, 88 NLRB 327
Cong. Rec., Supra, at page 4561-4562.
Cf. footnote 14.
32 This section is also violated, as hereinabove suggested in the consideration of the
collective bargaining agreements (footnote 15), by their seniority provisions and the
determinations thereunder, which restrain employees in the exercise of their rights under
Section 7.
°° Thomas C. Hassett is the operations manager at the Utica terminal. Gwilym E.
Rowlands is the district sales manager in charge of all operations at Utica. Harold J.
Weaver is secretary-treasurer and general manager of the Company
34 A great deal was made over the question whether the position was that of "night
foreman" or "working foreman " In Exhibit A attached to the original charge in Case
No. 3-CA-176, Mullen referred to himself as "night foreman" ; throughout the hearing
General Counsel maintained that he was a "working foreman." Conversely, in General
Counsel's Exhibit 3, a notice posted about March 1948, the Company referred to the
position, which Mullen then accepted, as that of "working foreman" ; but at the hearing
it insisted that he was "night foreman." Whether or not he was a working foreman
(this term was used in contradistinction to that of "supervisor") Is a conclusion. Without
intent to indicate any conclusion by use of the term, the undersigned will refer to the
position as that of "foreman" or "night foreman" since the latter term serves at least
to exclude the day foreman, and the term "working foreman" more nearly suggests
decision of the issue.
35 There was no dispute about the decrease in take-home pay considering the guaranteed
minimum assured over-the-road drivers, the greater number of hours which they worked,
and their opportunity to earn more as they exceeded a 20-mile per hour rate on the road.
Weaver testified variously that Mullen received $1.35 an hour as night foreman in March
1948 and March 1949, and that over-the-road drivers received $1.30 in March 1949; but
later that Mullen earned the computed equivalent of $1.20 per hour as an over-the-road
driver in March 1948, and the same hourly pay when he started as foreman , while he
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If, as contended by the Respondents. Mullen was a supervisor, there is no
remedy under the Act, within the circumstances of this case, for his discharge
regardless of motivation. It is therefore proper at this time to consider his
status.
Where there are conflicts in the evidence, the undersigned has resolved
them ; findings are made herein on the basis of reliable, probative, and substantial
evidence on the record considered as a whole and the preponderance of the
testimony taken.
Hassett remained in the terminal for 2 or 3 hours each night after the night
shift arrived. He gave Mullen instructions orally, or left a list with him or in
the othee, to indicate, among other things, the order in which trailers were to
be loaded. The list of instructions would then be passed on to the other-em-
ployees. The order in which drivers left the terminal was determined by sen-
iority, and it was Mullen 's duty to call the drivers when their trucks were loaded
and ready to go. Extra dockmen were hired through the union hall by Hassett
or by Mullen at Hassett's instructions, Mullen never hired, discharged, or dis-
ciplined employees.36 He testified that he was never given authority to do so.
Hassett testified that Mullen was responsible for completing loading and mak-
ing sure that the trucks were ready to go, getting the drivers out, supervising
the men under him to see that the jobs were performed, seeing that manifests
were properly filled out. and giving preference to rush shipments. He further
testified that during a so-called instruction period which continued for the first
11/, months of Mullen's term as night foreman, the latter was told to be boss and
direct the men in their work. To evidence Mullen's supervisory powers, Has-
sett referred to an occasion during the summer of 1948 when Mullen reprimanded,
a yardman for taking too much time making some hookups; Hassett told Mullen
that "if that reprimand didn't stick," he would further support Mullen. On an-
other occasion, when a driver was reported to be drunk, Mullen called Hassett,
and on the latter's instructions, replaced the driver. Hassett also pointed to the
fact that Mullen replaced an employee in the fall of 1948; he told Hassett and
Rowlands that the employee was unsatisfactory and they told him that he could
replace that employee.
Such incidents do not indicate that Mullen was a supervisor." Admittedly,
Mullen did not have authority to discharge at the time lie was appointed night
foreman, and prior to the first of these incidents. His job did not call for such
authority, he never exercised it, and I do not credit Hassett's statement that it
was bestowed upon him. Hassett's credibility is not enhanced by his statement
that he told Mullen the first or second night that he, Mullen, was in charge of the
terminal; nor by his testimony that he instructed Mullen for a period of 1 mouth
or 11/.2 months, on the one hand, and on the other, that he did not have to give
Mullen instructions when he assumed the job, and that Mullen had previous
experience as a dispatcher and showed good comprehension.
This was a small operation, and it was testified without contradiction that the
yard employees cooperated in performing the various jobs as necessity dictated.
Mullen testified that approximately 40 percent of his time was spent in checking
and typing bills, using rates which Hassett furnished ; and 60 percent' was spent'
received $130 in March 1949, which was the same as the computed hourly equivalent
of over-the-road drivers at that time. His rate was higher than that of other employees
in the yard ; for example , a checker received $ 1.23 as against Mullen's $1.30.
3e Statements to the contrary were made in general terms , they were conclusions only,
and lacked evidentiary support.
, " Unmted States Gypsum Company , 79 NLTIB 48.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 149
as wheeler and caller, helping load trucks, checking, gassing, routing bills, and
sometimes driving trucks. Without contradiction, Mullen testified that when he
initialled time cards °° and signed a memorandum 39 for an owner-operated truck,
he did so at Hassett's specific request. It may be that necessity and the size of
the operation required the informality which apparently existed on the shift ;
but it did exist, and Mullen performed a variety of functions.
Testimony was submitted by the Association and the Union to the effect that
foremen are not supposed or permitted to perform such functions. This testi-
mony was apparently submitted on the assumption that Mullen was a supervis-
ing foreman, to prove that he did not do the work described. But whether or
not he was a foreman is a conclusion to be drawn from the facts, and if, as ap-
pears, he actually did render such services, the conclusion is supported that he
was not a supervisor. Further, the Association and the Union testified that
seniority is lost when an employee becomes a supervisor. Yet Mullen testified
without contradiction that Hassett told him when bids were posted in September
1948, that he hoped Mullen, who was the second oldest man at the terminal, would
not bid for the New York over-the-road run Mullen also testified, as did Russell,
another employee, that Mullen's name was continued on the seniority list which
the company maintained. (Weaver testified that he learned in August 1948 that
supervisory employees lost their seniority, but that he did not so advise Mullen.)
According to Weaver, the Company started to post various jobs in March 1948.
He explained that all of the jobs listed on the notice posted at that time, ° except
Mullen's and the corresponding day foreman's job, were in the collective bargain-
ing unit. He offered no explanation for the inclusion of these two and the ex-
clusion of three other employees who were not in the unit, Rowlands, Hassett,
and the office girl. The Association's president testified that it was customary to
post some jobs which were not covered by contract, but that only those were
posted where there was a question of seniority. No attempt was made to explain,
however, why Mullen's job was posted if, as a supervisory one, it was not covered
by seniority.
Rowlands and Hassett alone, of the Utica terminal employees, were paid a
salary. Mullen, like the drivers, yard employees, and girl in the office, received
an hourly wage. When, in July or August 1945, the Company "no longer required
membership in the union as a requirement of employment," announcement of
such fact was made only to its supervisory employees, Weaver testified ; it does
not appear that Mullen was ever so advised.
While Weaver testified that he told DePerno, the union president, that the
Union had "nothing to say" about employment of foremen, he does not appear
to have been concerned over the Union's threat to file unfair labor practice
charges based on the so-called supervisors' antiunion activities ; nor did he
caution Mullen, as a supervisor, against such activities. This alleged show
of independence of the Union with respect to Mullen as a supervisor is also
inconsistent with Weaver's statement that the Union "agreed" that Mullen might
return to work, and with Hassett's advice on March 16, 1949, that Mullen had
better punch out. Also material is the fact that while the Respondents maintain
that the contracts did not cover supervisory jobs, and more particularly Mullen's
as a foreman, the Company referred 41 to the contract when it demanded the
°° Company's Exhibits 2 and 3
3° Company's Exhibit 1.
90 General Counsel's Exhibit 3.
41 General Counsel's Exhibit 4
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
physical examination as hereinafter noted in connection with the reason for the
discharge.
As to the significance of the term "foreman," not only is it clear that a job
title is not determinative of status, but specifically in this case the Employer
testified that "supervisory dockman" is another term for "checker"; the super-
visory dockman performs the duties of checker, shipper, or receiver, and is not
a supervisory employee.
It does not appear that Mullen's duties included submission of reports con-
cerning the work performed on the night shift. It was uncontradicted that
lists similar to those which he received were given to the checker or left in the
office. Possession of a list against which to check work done is not proof of
supervisory status. Mullen did not have authority to direct other employees
except when and to the extent that he was in any specific situation authorized
to do so by his superiors ; and it so found.
The statements that Mullen had authority to hire, fire, discipline, and effec-
tively recommend such action are not persuasive in the face of the specific denials
and the testimony concerning operations at the terminal $assett was the
supervisor with authority to hire, discharge, promote, and discipline He worked
with the night shift for a few hours and thereafter was in communication with
Mullen by telephone ; I find that Mullen loaded, gassed, and drove trucks, helped
to prepare bills, relayed information to Hassett, and transmitted the latter's
instructions to the other employees 42 Mullen did not have authority to hire,
discharge, promote, discipline, otherwise effect changes in the status of em-
ployees, effectively recommend such action, or responsibly direct such em-
ployees. As a dispatcher for a former employer, he evidently had superior
experience and perhaps better judgment than other employees. But he did not
regulate the work or its flow except as he was himself directed to do so; neither
was he authorized to, nor did he, exercise supervisory discretion in the per-
formance of his duties.99 There is no evidence that he assumed, or was regarded
by the Company as having, responsibility for efficient operation. Not only was
Hassett available personally to direct and advise the men for a few hours each
night, but on the only occasion mentioned in the record when the Company was
apparently concerned over the operation, Weaver's assistant, Mr. Wood, came
down from Auburn "because production possibly had slowed up." It is found
that Mullen was an employee within the meaning of the Act.
2. Mullen's dual union activities
Mullen testified that he was dissatisfied with the Union ' s failure to recognize
or determine seniority correctly, and with the use of owner-operated trucks in
violation of contract ; that he had noted several seniority violations and felt
that the Union , not the Company , was responsible for a "raw deal" ; that, with
a group of employees , he protested to the president of the Union , and that a group
then discussed the possibility of a change in their union representation. He
also wrote two letters " to the Buffalo Regional Office of the Board in this
connection , and arranged and held four meetings, the first early in March 1949,
at which meetings was discussed the question of obtaining from the same inter-
national union a separate charter for freight handlers . He testified further
4 Hassett testified : "I tell ( the employees ) what to do or tell their foreman to tell them
what to do "
43 The Ohio Power Company , 80 NLRB 1334 ; John Deere Ksllefer Company , 86 NLRB
1073.
" General Counsel's Exhibits 6 and 7.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 151
that an organization was formed, the name Acme Social Club was adopted, and
he, Mullen, was elected president ; that as many as 30 attended one of the meet-
ings, notice of the formation of the organization appeared in the newspapers,
and he believed that Local 182 knew of it. Mullen also testified that on March
17, he went to see DePerno, who asked if the meetings had taken place and why
Mullen hadn't come to him.
DePerno testified that he knew of and was displeased with these activities
of Mullen's, and that he so stated to Weaver and Rowlands. Thereafter, Weaver
testified, he asked Mullen about the cause of his "argument" with the Union,
and Mullen told him that he and others had inquired about getting a separate
union charter.
While these dual union activities were the basis 45 for action taken by the Union
to expel Mullen from membership, such action (or the question of the Union's
failure to act earlier) need not be further considered here. As an intraunion
disciplinary measure, it falls within the proviso of Section 8 (b) (1) (A). Nor
do the Respondents claim that this disciplinary action justified the discharge
or any demand for discharge. It could at most serve to indicate the Union's
attitude toward Mullen ; and that was clearly stated, as will be hereinafter
noted.
In seeking a new charter and acting as indicated, Mullen was engaging in
protected activity under Section 8 (a) (1) and (3) of the Act.
3. Other events in issue
On March 15, 1949, after the group protest to the president of the Union
concerning use of the owner-operated trucks, and after the first two meetings of
the Acme Social Club group, Carmen Citro, the Union's business agent, visited
Mullen on the job. Citro mentioned the possibility of appointing a new union
steward, and Mullen replied that he was satisfied with the steward then serving.
In a discussion of owner-operated vehicles and equipment, Citro agreed that it
was not good policy to use them, and Mullen stated that more union men could
be employed to cover them. Mullen testified that Citro did not tell him not
to send out owner-operated vehicles or to report to him if anyone else sent out
such a vehicle.
On March 16, Citro stopped an owner-operated truck which had left the
terminal for Auburn. He then came to the barn and asked Mullen whether he
had sent the truck out. Mullen stated that he had not ; that the driver had
received instructions in the day time. Citro then told Mullen to quit 4' or he
would "close the barn." Mullen thereupon agreed to punch out, but, before
doing so, called Hassett and explained what had happened The latter advised
him to punch out and said that he would "straighten the matter out in the morn-
ing." Before he left, and at Hassett's direction, Mullen sent the yard utility
man out with the truck in question. Citro told Mullen to see DePerno the next
day.
I credit the evidence that Citro told Mullen to stop work on March 16; this
was met only by DePerno's hearsay denial. Citro was not called to testify, nor
was any other explanation offered of the conversation between Citro and Mullen
on the 16th and the latter's departure. Admittedly, however, the reason given
by Citro (whatever his and the Umoh's animus, as hereinafter noted) at that
45 General Counsel's Exhibit 10.
49 While the transcript indicates that Citro told Mullen to "quit organizing," the parties
regarded the business agent's orders as a direction to quit work.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time was the dispatching of the owner-operated truck, and we can only speculate
that Mullen may have believed that, under the contract provision against owner-
operated trucks, the Union could take steps to obtain his discharge for dis-
patching such a truck. At any rate, and whatever motivated Mullen at the
time, Citro's act did not constitute a discharge. Nor did Hassett's advice in
the light of Mullen's information over the telephone. Further, Hassett's advice
was not connected with Mullen's dual union activities ; it appears that the issue
as presented to Hassett that night was confined to the owner-operated truck.
None of the Respondents is therefore chargeable under the Act with Mullen's
loss of work on March 16 and 17.
Rowlands testified that the following day, when Hassett told him of the
events of the preceding night, he went to see DePerno and protested removal of
the night foreman and interference with the Company's operations. DePerno,
he stated, accused the Company of attempting to disrupt the Union, and elab-
orated with the explanation that some of the men, including Mullen, were get-
ting together and holding meetings. Rowlands offered substantially similar
testimony concerning a visit which he and Weaver made to DePerno, and which
he placed on March 18. In this connection, DePerno testified that he told Row-
lands and Weaver that Hassett and Mullen were engaged in antiunion activities,
and that he would file unfair labor practice charges against the Company as
soon as he had proof.
From this point on there are serious conflicts in the testimony. Mullen testi-
fied that he went to see DePerno on the 17th; that the latter said he would be
brought up on charges for sending out a hired truck ; that there was some dis-
cussion concerning the Acme Social Club, and that DePerno promised to notify
him in writing when he could return to work. DePerno denied that he told
Mullen he would so notify him. Mullen testified further, without contradiction,
that Citro telephoned him on the afternoon of the 18th and told him that it
was all right for him to return to the job. Mullen declared that he told Citro,
and Hassett also, that he had made other arrangements for that evening, but
that he would report on the next working day, the 20th.
As noted, Rowlands declared that it was on March 18 that he and Weaver
spoke with DePerno 4T Weaver testified similarly and further that he discussed
with Mullen on that day the latter's dual union activities ; that he did not ask
for it, but that Mullen offered to resign rather than "have the Company suffer" ;
that he told Mullen that he would think the offer over, and in the meantime
Mullen was to return to work. He said that Mullen told him that he couldn't
report that evening but would on the 20th. Weaver testified further that there
was no question in his mind of discharging Mullen until the following Tuesday
or Wednesday, after the latter had refused to take a physical examination as
hereinafter noted.
Although he had ostensibly gone to see DePerno to settle the question of
Mullen's return, and although he knew that Mullen's services on the 16th had
at least been interfered with, if not temporarily terminated, because an owner-
opei ated truck had gone out of the barn, and although he, Weaver, had dis-
cussed owner-operated trucks with DePerna, Weaver nevertheless testified that
in his conversation with Mullen, allegedly held later on the 18th, he did not
talk to the latter about owner-operated trucks. I do not credit this denia148
"All three participants in this meeting testified that the use of owner-operated trucks by
the Company and Mullen's so-called antiunion activities were discussed.
48 Weaver's credibility is considered in greater detail in connection with the discharge,
post.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 153
Mullen testified that his conversation with Weaver took place on March 25,
and that he had no conversation with Weaver between the 15th and the 25th.
He stated that Weaver mentioned the dual union activity and the matter of
owner-operated trucks, and asked him to resign or take a leave of absence. He
denied that he offered to resign. Nothing was said at that time about his
illness49 or his return to work. Mullen testified further that Weaver told him
to call Rowlands the following day. The next day, Mullen testified, Rowlands
said that Weaver had asked for his, Mullen's, resignation.
Another serious conflict developed concerning an alleged request by Mullen
for sick leave 60 Hassett allegedly received such request and transmitted it to
Rowlands. The latter testified that he called Weaver, was told that a physical
examination by the Company's doctor would be required, and transmitted the
decision to Mullen, who replied that any information could be secured from
his doctor. Rowlands then communicated with Weaver again, and, at the latter's
direction, insisted that Mullen submit to an examination Mullen, on the other
hand, testified that on the 28th or 29th of March, Rowlands called him at home
and asked him to take a physical examination by the Company's doctor. This
Mullen refused to do, saying that he would submit an affidavit from his own
doctor, to whom he had been referred by the Veterans Administration ; that he
was arranging to enter a veterans hospital, and that the hospital records would
be available to the Company.
Mullen entered the hospital on March 30 or 31. On the latter date, a discharge
letter" was sent to him; he received it while in the hospital. He left the
hospital and returned to Utica on April 10 or 12; the doctor told him he could
return to work, and about April 19 he told Hassett that he was ready to return.
Hassett told him he would check with Weaver (no mention was made of a
physical examination), and the next day reported that Weaver had said he
was not to be put back to work.
Throughout this period, Mullen was a member of the Union ; he paid his
dues until April, when the Union refused to accept them. On April 15, the
Union served charges on him 52 No question was ever raised concerning his
failure to pay or tender dues.
While the discharge occurred on or about March 31, Mullen was unavailable
for work on that day and thereafter until April 19. The refusal to reemploy
him occurred on April 20, 1949.
4 The reason for the discharge
Unlike other cases involving the question of discharge at a union's request,
both the Union and the Company in this case deny that there was such a request.
There is here presented the problem of determining whether there was a request
despite the denial by the parties who alone could testify concerning the con-
versations held. But, although unusual, the problem may be solved by considera-
tion of the attendant circumstances n
In seeking the reason for the discharge, we are not limited to that offered by
the Company to justify its action. Nor, as we consider the sequence of events
and the question whether the Union demanded the discharge, must we confine
49 All were in agreement that on March 20, after he had worked a few hours, Mullen be-
came ill, called Hassett, and went home
so These issues will be considered in connection with the analysis of the discharge, post.
of General Counsel's Exhibit S.
52 General Counsel's Exhibit 10.
53 Hartsell Mills Co. v . N. L. R. B., 111 F. 2d 291, 293 ( C. A. 4) affg. 18 N. L . R. B. 268.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ourselves to direct evidence of conversations between the Company and the
Union.
While Weaver claimed that he told DePerno that the Union had "nothing to
say" about employing Mullen, he informed the latter that he had "agreed"
with DePerno that Mullen could return to work. Further evidence of the extent
to which the Union dominated the situation is seen in the fact that although
DePerno contradicted Mullen's testimony that DePerno promised on March 17
to advise him when he could return to work, it was not denied that Citro told
Mullen on March 18 that it was all right to go back. Even if credited, Weaver's
testimony that on March 18 he told Mullen to return would not be inconsistent
with such an authorization by Citro, which would be consonant with and in the
pattern of Citro's influencing Mullen to leave on the 16th, and merely a reversal
of the earlier proceeding., Again, Weaver knew of I'lullen's dual union activities,
but neither these nor DePerno's alleged threat to file unfair labor practice charges
disturbed him even to the extent of eliciting a warning to Mullen, who he main-
tained was a supervisor, against such activities
Mullen was a good employee, qualified and reliable. According to the Com-
pany's witnesses at least, he was regarded worthy of being entrusted with what
the Company maintains was supervisory authority. As noted, Weaver testified
that there was no question in his mind about discharging Mullen until the latter
refused to take a physical examination. The letter of recommendation ' sup-
ports this estimate of the regard in which Mullen was held.
It does not appear that the Company would have suffered any direct financial
loss as the result of Mullen's absence since be was paid only while he worked ;
or that it was concerned over the possibility that the alleged leave sought would
be of undue duration.m Any interest the Company had in Mullen's condition
could presumably be satisfied by the information which he offered from reliable
sources: an affidavit from his physician, and veterans hospital records.
If the Company had a right to demand a physical examination, it is material
to consider whether that right was exercised 68 capriciously or whether the
Company was motivated by unlawful considerations."
It appears that Mullen had been away before because of illness, at one time
in 1948 for a period of some 10 days or 2 weeks. No examination had been
requested by the Company during any such illness, but he had submitted a doc-
tor's statement on his return to work. Even if Mullen now formally requested
sick leave, it does not appear that there would have been any greater problem
of possible disruption than if he had reported ill on the 20th and stayed away
without prior permission, as he had done before. There was no precedent of
request for sick leave at the plant. Still assuming that the Company had the
right under its contract with the Union, or otherwise, to demand an examination,
it had not generally exercised that authority. Weaver was able to cite but two
other instances : one of a safety patrolman at another terminal a few years ago
on his return after 20 to 30 days' illness ; the other of a foreman under undis-
closed circumstances some 6 months before the hearing.
69 General Counsel 's Exhibit 9.
66 Hassett testified that the Company insisted on an examination by its own physician
"because that is our privilege."
66 Regardless of Mullen's status as a nonsupervisory employee, as found herein, the Com-
pany maintained throughout that it regarded him as a supervisor. It knew that as such
he could be discharged without-remedy under the Act. (The Association in August 1948,
advised its members of the effect of the Taft-Hartley Act.)
67 A right may be unlawfully exercised . Russell Manufacturing Co , Incom porateil, 82
NLRB 1081.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 155
The contracts are not specific on the issue of the Company's right to a
physical examination of employees covered thereunder. The pertinent pro-
vision reads as follows :
All physical examinations required by the Company shall be paid for
by the Company.'8
If that clause were declaratory of the Company's right to require all em-
ployees, whether supervisory or not, to submit to a physical examination at any
time, it would still leave for consideration the question hereinabove noted
whether such right was properly exercised.
The Company's interest appears to be covered in the contract for local em-
ployees, which provides that:
Any employee who is absent through sickness or injury shall receive his
regular position upon returning to work if" physically fit. [Emphasis
supplied.] 68
The leave might be expected to permit correction of any ailment which an
earlier examination might disclose the Company's interest was not personal,
but presumably looked to Mullen's ability to do his work. This analysis is sup-
ported by the following extract from the statement 60 submitted by Weaver on
June 6, 1949:
It has been the rule of the company that when employees are hired for
warehousemen and trucking, that they must submit to a physical and
there is also another rule that when a man has been sick and wishes to
return to work, that he must submit to a physical.
Mullen testified that he refused to take a physical examination because he was
already under the doctor's care, and saw no reason to submit to an examination
while he was sick.
Weaver's testimony that he wanted to accumulate all of the facts and was un-
able to reach an immediate decision when Mullen allegedly offered to resign,
further indicates that Mullen was well regarded by the Company. Where such
goodwill is entertained toward an employee, it would be consistent to permit
absence due to illness and even to grant a request for sick leave. Whether a
physical examination is indicated would depend on the length and nature of the
illness ; it should be noted again that there was no indication of danger to the
Company's interests if such examination had not been demanded until Mullen
indicated a readiness to resume his duties. Mullen's condition would appear to
be of importance to the Company when he sought to return; the record is devoid
of suggestion of any possible loss of detriment to the Employer if a request for
leave had been granted without condition, or such loss as to warrant the demand
and discharge.
The union president mentioned Interstate Commerce Commission regulations
at the hearing to justify the demand for a physical examination. Those regula-
tions are not here pertinent for even were we to assume that they applied to
Mullen as a driver, reference to Section 192 of such regulations, Title 49, Code
of Federal Regulations, discloses no specific requirement for a physical exam-
ination, much less that any such examination be by the employer's physician or
that it be held when an employee seeks not to work.
68 General Counsel's Exhibit 2-A, Article IV, Clause 22 ; General Counsel's Exhibit 5-A,
Article V, Clause 8.
69 General Counsel's Exhibit 2-A, Article III, Clause 3.
6° General Counsel 's Exhibit 4.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is a fair inference that, absent pressure by the Union, the Company would
not have discharged Mullen for refusing to submit to a physical examination by
a doctor of its choosing; it may well be doubted, from the circumstances of the
case and the inferences reasonably to be drawn from them, whether it would
have requested such an examination. Yet it is well settled that an employer must
resist a union's illegal demand for discharge."
Whether or not Mullen requested sick leave is of importance since the Com-
pany's demand for an examination after a request for leave might help to explain
the otherwise unexplained failure to make such a demand on the 20th and for
several days thereafter, at any time preceding the discussion between the Union
and the Company.62
Mullen testified that he did not ask for sick leave. This testimony was con-
tradicted by Hassett, Weaver, and Rowlands. The unreliability of the testi-
mony of the first two of these has already and will further be noted. Rowlands,
who on examination was too frequently unable to recall but who did agree with
Weaver that the latter came to Utica on the 18th, testified in this connection that
Hassett advised him that Mullen had requested leave and that he passed the
request on to Weaver. The finding hereinafter made that the conversation be-
tween Weaver and Mullen took place on the 25th sheds light on the disputed
question whether Mullen ever, and more specifically between March 21 and 23,
asked for sick leave. Both Weaver and Mullen agreed that sick leave was not
mentioned during their conversation. This is hardly consistent with the testi-
mony that neither of the Utica supervisors made a decision on the alleged request
for leave, but that Rowlands twice communicated with Weaver concerning it.
It is noted also that despite his recognized authority, Rowlands, in the discharge
letter 03 referred to receipt of instructions in the matter.
Considering this issue further, Hassett and Rowlands allegedly transmitted
the request for sick leave to Weaver in Auburn, who had a few days previously,
according to their testimony, conferred with the union president. No explanation
was offered for the failure of the operations manager and the district sales
manager in charge at Utica to have themselves disposed of an application for
sick leave. Neither of them asked Mullen what his trouble was nor did they ask
how long a leave period he wanted.81
Because of such inconsistencies and the credible aspects of the evidence
adduced, the Company's evidence concerning a formal request for sick leave is
not at all persuasive. Credited, rather, is Mullen's denial that he requested
sick leave, such denial being consonant with the practice followed by him and
evidently by the other employees also.
Further affecting Weaver's credibility °5 is his statement that Mullen offered
on March 18 to resign, and that he, Weaver, told Mullen to go back to work
while the offer would be taken under advisement. There is no explanation of
the subsequent failure to accept the resignation offer by an employee claimed to
be without the protection of the Act, especially when Mullen within a few days
thereafter was guilty of an allegedly serious refusal to submit to examination
by the Company's physician.
61 Eureka Vacuum Cleaner Company, 69 NLRB 878, Pillsbury Mills, fne, 74 NLRB 1113.
62 The date of such discussion is hereinafter deteimined
63 General Counsel's Exhibit S.
84 Weaver testified that he was told that Mullen had requested leave of 30 or 60 days.
I do not credit this statement in the face of the denial by his operations manager who alone
claimed to have received the request from Mullen.
65 Other items which reflect on Weaver's credibility have hereinabove been considered in
the discussion of Mullen 's status and the other events in issue. '
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 157
Another question of credibility concerns the date of Weaver's visit to Utica
and conversation with DePerno and then with Mullen : Weaver stoutly main-
tained that it was March 18; Mullen as stoutly that it was March 25. The later
date may be significant for the inference which may be drawn that while Mullen
had gone home ill on the 20th and had remained away, no demand was made for
a physical examination for several days and until Weaver had conferred with the
union president. It would also support Mullen's testimony that Citro, and not
Weaver, told him on the 18th that he might return to work, this indicating the
Union's power and influence in connection with employment, and the manner in
which they were exercised. The background of continued recognition of the
illegal contract and Weaver's trip from Auburn to Utica, after Rowlands
called, him, to check on the difficulty between the Union and what he maintained
was a supervisory employee, is also significant as one considers the relationship
between the Company and the Union.
In addition to what is elsewhere herein noted concerning the credibility of
various witnesses, and supporting the conclusions made in that respect, General
Counsel's Exhibit 4 warrants a finding in favor of Mullen's veracity and March
25 as the date. In this statement, submitted shortly after the events referred to .
and when he had full opportunity to check his records and search his memory,
Weaver definitely placed his conversation with Mullen on the 25th. This exhibit
indicates further that, contrary to the company witnesses' testimony that Mullen
requested sick leave between March 21 and 23, no question of sick leave or
physical examination arose before March 26.
It is the undersigned's finding that Weaver's testimony was unreliable, and
that the Company in effect demanded the examination without right or reason ;
the demand was arbitrarily made as a pretext n and in order to be violated,87
and Mullen's refusal was seized upon as a means of discrimination It is further
found that the demand for a physical examination and the discharge and sub-
sequent refusal to reemploy Mullen were prompted by the latter's altercation
with the Union arising out of his dual union activities, the Union's 'advice to
the Company concerning its displeasure, its demand that the Company discharge
him, the Company's feeling that it was "in the middle of (Mullen's) dispute with
DePerno," and the Company's desire to maintain good relations with the Union;
and it is concluded that such demand, discharge, and refusal to reemploy were
in violation of Section 8 (a) (1) and (3) of the Act. No question exists of
unlawful domination ; but reason or inducement may be found in the affinitous
relationship.
There was, of course, sufficient motive for the Union to seekMullen's discharge.
No, secret was made of its distaste for his "stirring the men up" with dual union
activities.68 Its asserted wrath, misdirected against him, for dispatching an
owner-operated truck must be regarded as a pretence. It should be as true of
enforcement by a union as it is of enforcement by an employer that a rule may
66 Biggs Antique Company, Inc., 80 NLRB 345; Burlington Mills Corporation, 82 NLRB
751.
67 Russell Manufacturing Company, Incorporated, 82 NLRB 1081
68 All who testified concerning conversations with DePerno (Weaver, Rowlands, Mullen,
and DePerno himself) indicated clearly that discussion of the ostensible reason for calling
Mullen off the job on March 16 was inextricably intertwined with reference to Mullen's
"anti-union activities." It should also be noted that the original notice of charges filed
against Mullen by the Union was confined to his dual union activities ; this was subsequently
enlarged to include reference to the matter of owner-operated trucks.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not be applied in a discriminatory manner 88 The Union had knowledge of the
practice of dispatching owner-operated trucks and had permitted such practice.
Weaver told DePerno that the Company was unable to replace such trucks with
equipment of its own, and the practice in connection with such use was both
loose and indefinite. DePerno testified that the Union permitted owner-operators
to work under certain conditions, and he virtually summarized the situation by
saying, "We can't get these employers to comply." Weaver testified that owner-
operated trucks had been the subject of discussion prior to his conversation with
DePerno, and Rowlands stated that the Company has never stopped using owner-
operated trucks in the city and over the road.
DePerno testified further that supervisory employees are not permitted by the
contract to perform duties which are assigned to other employees. He stated
in this connection, ". . . just as quick as we can catch it we stop it. . . ." Other
issues such as periodic posting of jobs have long been in contention between
the Union and management in the industry. Further, while as DePerno testi-
fied, under the contract and the Union's rules, seniority prevails at all times
subject to the rules and regulations of the Union, Mullen testified without contra-
diction that he had cause for complaint against the Union's decisions and prac-
tices in this respect. It will be recalled also that, as DePerno testified, the
Union's business agent had no authority to call Mullen off the job; redress for
violation of the contract was properly to be sought against the Company.
Whether these events and conditions are due to impossibility of, or unconcern
over, enforcement of the contract terms, they certainly lend themselves to exer-
cise of pressure ,dehors that contract.
In fact, the record indicates that the practice of using owner-operated trucks
has been continued on both city runs and over-the-road runs. Admitting that
Citro's action was ill advised (the action has been found above and a qualified
admission made by DePerno), the Union exercised its historically strong posi-
tion," threatened ° the Company with unfair labor charges, and raised the issue
of owner-operated trucks to cause the Company to discriminate against Mullen
in violation of Section 8 (a) (3), and thereby itself violated Section 8 (b)' (2).
I find also that these acts by the Union were motivated by Mullen's organizational
activities, and were intended to and did restrain and coerce employees in viola-
tion of Section 8 (b) (1) (A).12
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Company and Association described in
Section I, above, have a close, intimate, and substantial relation to trade, traffic,
'° Hershey Metal Products Co., 76 NLRB 695 ; American Book-Stratford Press, Inc , 80
NLRB 914.
"Rowlands testified that he would " let matters rest" until Weaver came and talked
with DePerno . Furthermore , as previously noted, both Weaver and Rowlands testified
that DePerno "agreed" that Mullen might return to work. Mullen testified that Citro
told him. that it was all right to return There is no question about the atmosphere in
which the operations were conducted ; the Union 's influence and control over employment
are evident.
'n It is claimed in the Union's brief that a request by the Union that Mullen be discharged
would be privileged under Section 8 (c) of the Act. But such a request is not the expres-
sion of "any views, argument , or opinion" ; and the position taken overlooks the coercive
effect of the demand which the Union was in a position to make and , as found, did
make.
11 Clara-Val Packing Company, 87 NLRB 703.
NEW YORK STATE EMPLOYERS ASSOCIATION, INC. 159
and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents have engaged and are engaging
in certain unfair labor practices affecting commerce, it will be recommended
that they cease and desist therefrom and take certain affirmative action in order
to effectuate the policies of the Act.
It has been found that the Company, by discharging and refusing to reemploy
Mullen, discriminated against him in regard to his hire and tenure of employ-
ment, and thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act, in violation of Sec-
tion 8 (a) (1) and (3) of the Act; and that the Union caused the Company so to
discriminate, and itself so restrained and coerced employees, in violation of
Section 8 (b) (1) (A) and (2) of the Act. It will therefore be recommended
that the Company offer to Mullen immediate and full reinstatement to his former
or substantially equivalent position 73 without prejudice to his seniority or other
rights and privileges. It will be further recommended that the Company and
the Union," jointly and severally,'" make him whole for any loss of pay he may
have suffered by reason of the discrimination against him by payment of a
sum of money which shall be computed" on the basis of each separate calendar
quarter or portion thereof during the period from the discriminatory refusal to
reemploy him to the date of a proper offer of reinstatement." The quarterly
periods, hereinafter called "quarters," shall begin with the first day of January,
April, July, and October Loss of pay shall be determined by deducting from
a sum equal to that which Mullen would normally have earned for each quarter
or portion thereof, his net earnings," if any, in other employment during that
period. Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other quarter. It will also be recommended that the Board
order the Company to make available to the Board upon request payroll and
other records to facilitate the checking of the amount of back-pay due.'9
It has further been found that the Company and the Association violated Sec-
tion 8 (a) (1) and (3), and that the Union and the Council violated Section 8
(b) (1) (A) and (2) by continuing the illegal union-security clauses in their
contracts. It will therefore be recommended that the Respondents cease and
'+s In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former' position wherever
possible , and if such position is no longer in existence , then to a substantially equivalent
position " See The Chase National Bank of the City of New York, San Juan, Puerto
Rico Branch, 65 NLRB 827.
74 Concededly , neither the Association nor the Council prompted the discharge or refusal
to rehire , whatever their responsibility for the unauthorized contracts.
75 H. Milton Newman, an individual d/b/a H. M. Newman, 85 NLRB 725.
"F. W. Woolworth Company, 90 NLRB 289
" In the case of the Union, this date or the date on which the Union serves upon the
Company the written notice as set forth in Section 3 (b) (1) of the recommendations
hereinafter made, whichever shall first occur, shall be the terminal date.
78 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where , which would not have been incurred but for this unlawful discrimination, and the
consequent necessity of his seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 440 Monies received for work performed upon Federal , State , county , municipal,
or other work -relief projects shall be considered earnings . Republic Steel Corporation
v. N. L. R. B., 311 U. S. 7.
19 F. W. Woolworth Company, supra.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desist from such, or any like or related conduct, and from giving effect to the
clauses of the contracts 80 which violate the Act, or similar clauses of any exten-
sion or renewal thereof.
In addition to the notices to be signed by the Company and the Union, and
posted, and the request by the Union that the Company reinstate Mullen, it will
be recommended that the Association and the Council sign appropriate notices
for posting at the Company's terminal and the Union's offices respectively in
Utica. It will serve no useful purpose to direct posting at the Association's
office in Frankfort or at the Council's office, if any. Because the Association's
master contracts, which cover others of its members, are in issue without juris-
diction being had over such members other than the Company herein, it will be
further recommended that the Association send copies of its notice to such other
members and request them to post the same. Similarly, because the Council's
contracts, which cover others of its constituent locals, are in issue without juris-
diction being had over such locals other than the Union herein, it will be further
recommended that the Council send copies of its notice to such locals and request
them to post the same.
It will not be recommended that the Board issue a broad cease and desist order
since it is not reasonably to be apprehended that the Respondents will commit
unfair labor practices different from and not related to those found herein. The
order will not, however, be limited to agreements among the various Respondents
herein since the unfair labor practices found indicate a desire and intent to com-
mit the same vis-a-vis other Employers and labor organizations.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Union, Local 182 of Utica and Central New York, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of
L., is a labor organization within the meaning of Section 2 (5) of the Act.
2. The Council, New York State Teamsters Council, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. The Association, New York State Employers Association, Inc., is an em-
ployer within the meaning of Section 2 (2) of the Act.
4. By discriminating in regard to hire and tenure of employment of employees
of members of the Association, thereby encouraging membership in labor organi-
zations, the Association, New York State Employers Association, Inc, has en-
gaged in and is engaging in unfair labor practices, within the meaning of Section
8 (a) (3) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Richard
F. Mullen and of its other employees, thereby encouraging membership in the
Union, the Company, Red Star Express Lines of Auburn, Inc., has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8 (a) (3)
of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Association has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8 (a) (1) of
the Act.
ao There is neither allegation nor evidence attacking the majority status of the Union
or the other constituent locals in the Council It will therefore not be recommended that
the contracts be set aside in their entirety.
SHELL OIL COMPANY 161
7. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Company has engaged 'in and
is engaging in unfair labor practices, within the meaning of Section 8 (a) (1)
of the Act.
8. By causing the Company to discriminate in regard to hire and tenure of
employment 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.
9. By causing the Association and its members to discriminate in regard to
hire and tenure of employment in violation of Section 8 (a) (3) of the Act, the
Council has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (b) (2) of the Act.
10. 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.
11. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Council has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (b) (1) (A) of the Act.
12. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Rtecommended Order omitted from publication in this volume.]
SHELL OIL COMPANY AND SHELL CHEMICAL CORPORATION and OIL
WORKERS INTERNATIONAL UNION, CIO, LOCAL No. 367. Case No.
39-CA-112. February 8, 1951
Decision and Order
On September 26, 1950, Trial Examiner Alba B. Martin issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondents filed exceptions to the Intermediate Report and supporting
briefs. The Union filed a brief in support of the Intermediate Re-
port. The Respondents' request for oral argument is hereby denied,
as the record, including the briefs and exceptions, adequately pre-
sents the issues and positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in this case, and finds merit in the Respondents' exceptions.
The facts giving rise to the controversy in this case are as follows.
The Union, a local of the Oil Workers International Union, CIO,
93 NLRB No. 20.
943732-51-12