Local 404, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

National Labor Relations Board - Board Decisions

Aug 26, 1952

100 N.L.R.B. 801 (N.L.R.B. 1952)

LOCAL 404, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. $01
CoNCLusIoNs of LAw
1. American Federation of Radio Artists, A. F. of L., is a labor organization
within the meaning of Section 2 (5) of the Act.
2. The Respondent has not violated Section 8 ( a) (5) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
LOCAL 404, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA , A. F. L. and INTERNA-
TIONAL ASSOCIATION QF MACHINISTS , A. F. L. Case No. 1-CB-140.
August 26,19592
Decision and Order
On February 7,1952, Trial Examiner George Bokat issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommend-
ations of the Trial Examiner, with the following additions.2
1. The original charge filed on January 9, 1951, alleged that the
Respondent "prior to, or about, December 5, 1950" had violated Sec-
tion 8 (b) (1) and (2) of the Act by coercing certain employees into
paying initiation fees and dues under threat of discharge. This
charge contained no list of employees alleged to have been so coerced.
On June 4, 1951, the charge was amended to allege that "since on or
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and Mem-
bers Houston and Murdock]
2 The Intermediate Report contains a number of typographical errors which are cor-
rected as follows : (a) In footnote 4, the citation for Graham Ship Repair Co , should be
63 NLRB 842; ( b) in footnote 6, the citation for Eclipse Lumber Company, Inc., should
be 95 NLRB 464.
100 NLRB No. 135.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about October 19, 1950," the Respondent had attempted to cause and
did cause the Employer to discriminate against certain named
employees by forcing them to join and to pay initiation-fees and dues
to the Respondent in violation of Section 8 (a) (3). On June 21,
1951, the charge was further amended by deleting several names
attached to the previous charge.
The Respondent argues that the Act makes no provision for amend-
ing charges and that an amended charge has only the status of an
original charge. As the acts complained of occured more than 6
months before the filing of this second amended charge, the Respond-
ent urgeskthat no complaint should have been issued. The Respond-
ent's major premise is not valid. The courts as well as the Board
have impliedly recognized that the power to amend a charge exists.g
An amendment does not constitute a withdrawal of the original
charge.4 Consequently, it is the date of the filing of the original
charge which determines the cut-off period for the running-of the 6-
month statute of limitations,5 particularly where, as here, the amend-
ments merely amplify or particularize the original charge.6
2. The Respondent alleges that no complaint should have been
issued because the dispute is between two unions affiliated with the
same federation. We find no basis in the Act for excusing statutory
violations because of the affiliation of the labor organizations involved.
3. The Respondent contends that the Board improperly delegated
to employees the decision on the appropriate unit. We find this
contention to be without merit.' The Respondent also attacks the
Board's unit determination in the representation case." We perceive
no reason for changing that determination.
4. The Respondent Union contends that the employees should re-
mit to it the increase in pay received as the result of the Respondent's
bargaining efforts, in order that the status quo be restored. We do
not believe that it would effectuate the policies of the Act to require
such restoration as a condition to compelling the Respondent to
return to the employees initiation fees and dues unlawfully collected.
Moreover, if these employees had not been compelled to join the Re-
spondent, they might have been able to arrange as good or better
terms either bargaining individually or through another labor
organization.
N. L R B, v Kobritz, et al., 193 F. 2d 8 (C. A. 1) ; Cusano v. N. L. R. B., 190 F 2d
898 (C. A 3).
4 N L R B. v Kobritz, et al. , supra.
5 N. L. R. B v. Kobritz, et al, 8apra; Kansas Milling Co. v. N L R. B , 185 F. 2d 413
(C A 10). For the Board's general principles in applying the 6-month statute of limi-
tations see Cathey Lumber Company, 86 NLRB 157, enfd. 185 F. 2d 1021 (C. A. 5), set
aside on other grounds, 189 F 2d 428 (C. A. 5) -
Kansas Milling Co. v. N L R B .supra
7 N L R B v Underwood Machinery Co., 179 F. 2d 118 (C. A 1).
8 Brown Equipment A Manufacturing Co, Inc, 93 NLRB 1278.
LOCAL 404, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 803
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the' National Labor Relations Act, the National Labor Relations
Board hereby orders that Local 404, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
A. F. L., its officers, representatives, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Causing or attempting to cause Brown Equipment and Manu-
facturing Co., Inc., its officers, agents, successors, or assigns, to dis-
criminate against its employees in violation of Section 8 (a) (3) of
the Act.
(h) Extending or applying the union-security provisions of the
collective-bargaining contract with Brown Equipment and Manu-
facturing Co., Inc., covering employees at that Company's West
Springfield, Massachusetts, plant, to employees of the Company's
Bradley Field, Windsor Locks, Connecticut, plant, except as author-
ized in Section 8 (a) (3) of the Act.
(c) In any other manner restraining or coercing employees of
Brown Equipment and Manufacturing Co., Inc., its successors or
assigns, in the exercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act.
(a) Reimburse the Bradley Field employees named in the appen-
dix attached hereto for the initiation fees and dues each of them paid
to the Respondent between October 2, 1950, and May 8, 1951.
(b) Post in its offices in Springfield, Massachusetts, copies of the
notice attached hereto as an appendix.9 Copies of said notice, to be
furnished by the Regional Director for the First Region, shall, after
being duly signed by Respondent's representative, be posted by the
Respondent immediately upon receipt thereof and maintained for at
least sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Mail to the Regional Director for the First Region signed
copies of the notice attached hereto as an appendix, for posting,
Brown Equipment and Manufacturing Co., Inc., willing, at the lat-
ter's office and place of business in Windsor Locks, Connecticut, in
places where notices to employees are customarily posted. Copies of
I In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
2 2 7 2 00-5 3-v o f 100--52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said notice, to be furnished by the Regional Director for the First
Region, shall, after being signed by the Respondent's representative,
be forthwith returned to the Regional Director for such posting, ,
(d) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, of the steps taken
to comply herewith.
Appendix
NOTICE TO ALL OUR MEMBERS AND TO EMPLOYEES OF THE BRADLEY FIELD
PLANT OF BROWN EQUIPMENT AND MANUFACTURING CO., INC.
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, we hereby notify our members and Bradley Field
employees of Brown Equipment and Manufacturing Co., Inc., that:
WE WILL NOT cause or attempt to cause BROWN EQUIPMENT AND
MANUFACTURING Co., INC.) its officers, agents, successors, or as-
signs to discriminate against its employees in violation of Section
8 (a) (3) of the Act.
WE WILL NOT extend or apply the, union-security -provisions of
our collective-bargaining contracts with BROWN EQUIPMENT AND
MANUFACTURING Co., INC., covering employees at that company's
West Springfield, Massachusetts, plant, to the employees of the
company's Bradley Field, Windsor Locks, Connecticut, plant,
except as authorized in Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of BROWN EQUIPMENT AND MANUFACTURING CO., INC., Windsor
Locks, Connecticut, in the exercise of the rights guaranteed in
Section 7 of the Act.
WE WILL reimburse the employees named below for the initia-
ation fees and dues unlawfully collected from them.
Emmett J. Lyman, Jr.
Paul V. Russell
Alton Kunkel
Wesley F. Rivard
A. D. Viens
Andrew Barga
James E. Faulks
Clinton Johnson
Norman S. Robinson
Gerald Karaghousian
Nicholas T. Serdechny
John Modzolewski
Fred Rube
Russell Strubell
Charles D. Lowery, Jr.
Anthony M. Farinella
George J. Guadanskas
Palmiero Napol
Joseph LaBucque
George R. Yurewitch
John Kolasinski
Francis J. Ciacchero
Floyd L. Strain
Eugene J. Morin
LOCAL 404, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 805
Leon H. Baker Joseph C. DeMaio
Clifford R. Watkins Leslie C. Gedding
John C. Young Maurice Roeit
Howard Griffin
LOCAL 404, INTERNATIONAL BROTHERHOOD
or TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, A. F. L.,
Labor Organization.
By ----------------------------------------
(Representative) (Title)
Dated--------------
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered, defaced, or covered by any other
material.
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge duly filed by the International Association of Machin-
ists, A. F. L., herein called the Machinists, and upon complaint and notice of
hearing issued and served by the General Counsel, and an answer having been
filed, a hearing upon due notice was held at Springfield, Massachusetts, before the
undersigned Trial Examiner on August 1 and 2, 1951, involving allegations of
unfair labor practices in violation of the National Labor Relations Act, 61 Stat.
136, herein called the Act, by Local 404, International Brotherhood of Teamsters,
Chauffers, Warehousemen and Helpers of America, A. F. L., herein called the
Teamsters and at times the Respondent. The allegations in substance are that
the Teamsters violated Section 8 (b) (2) of the Act by: (a) The execution of
an agreement with the Brown Equipment and Manufacturing Co., Inc., herein
called the Company, which requires as a condition of employment membership
in the Teamsters, which agreement had not been authorized pursuant to Section
9 (e) of the Act; (b) requiring, as a condition of employment, the payment
of initiation fees and monthly dues to the Teamsters by the employees of the
Company. The complaint also alleged that the Teamsters violated Section
8 (b) (1) (A) of the Act by: (a) Threatening reprisals to employees of the
Company if they did not join the Respondent; (b) executing the agreement
with the Company requiring membership in the Teamsters as a condition of
employment as heretofore mentioned. All parties were represented by counsel
and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence bearing on the issues, to argue the issues orally
upon the record, and to file briefs, proposed findings of fact, and conclusions of
law. The Teamsters filed a brief with the undersigned.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Brown Equipment and Manufacturing Co., Inc., is a North Carolina corpora-
tion having its principal office in New York, New York, and plants at Charlotte,
North Carolina ; Syracuse, New York ; Baltimore, Maryland ; Westfield, Massa-
chusetts ; West Springfield, Massachusetts ; and Windsor Locks, Connecticut. The
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company is a wholly owned subsidiary of Associated Transport, Inc., a truck-
ing concern operating a fleet of approximately 3,000 trucks in and through the
States along the entire eastern seaboard.
The Company is engaged in the manufacture , service, and repair of trucks,
trailers , and other automotive equipment , making annual purchases of materials
and sales of finished products to, a value in excess of $3,000,000; more than 50
percent of said purchases and sales is made across State lines.
At its Windsor Locks plant, also known as the Bradley Field plant, the one
involved in this proceeding, the Company is engaged in production, under Gov-
ernment contracts , amounting in value to more than $300,000, for the defense
effort. The equipment and materials used at Windsor Locks for the period
beginning October 1950 and ending July ' 1951 amounted in value to more than
$100,000 , and more than 50 percent of said materials originated outside the
State of Connecticut . The Company 's finished products for said period amounted
in value to more than $300,000, and more than 50 percent of said products was
shipped to points outside the State of Connecticut.
The Respondent concedes and I find that the Company is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Association of Machinists and Local 404, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are both
labor organizations within the meaning of the Act, affiliated with the American
Federation of Labor , admitting to membership employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. Summary of events
There is no dispute as to the essential facts. The events giving rise to the
alleged violations of the Act stem primarily from a jurisdictional dispute between
the Machinists and the Teamsters . Since 1946 the Machinists has been the con-
tractual bargaining representative of the Company 's employees at all of its
plants "coming within the work jurisdiction of the International Association of
Machinists , in all of the shops of the Company, wherever located," with the
exception of the Company's plant at West Springfield, Massachusetts. The
Teamsters has represented the employees at the Company ' s West Springfield
plant continuously since 1945, and during this period has entered into successive
annual collective-bargaining agreements for such employees . The earlier agree-
ments defined the scope of the bargaining unit as including the employees at
West Springfield "and adjacent area." Until the fall of 1950, the Company
operated no other plant-in the area adjacent to West Springfield . However in
1950 the Company leased the Bradley Field plant, which is located approximately
13 miles from its West Springfield plant, and commenced operations there on
October 2, 1950.
The Company initially was of the opinion that its master agreement with the
Machinists would cover the new plant and informally notified a Machinists'
representative to this effect . The Company also asked the Machinists for assist-
ance in staffing the new plant where it planned to employ about 65 mechanics.
However, the Company later changed its position and came to the conclusion
that the operations of the West Springfield and Bradley Field plants were so
closely integrated that the Teamsters' West Springfield contract should right-
fully apply to the Bradley Field installation.
LOCAL 404, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 807
Prior to the opening of the Bradley Field plant on October 2, the Company
and the Teamsters were negotiating a renewal of their agreement which was due
to expire on November 1, 1950. The Teamsters took the position that the expiring
contract and the new one being negotiated should also cover the employees at
the new plant. Sometime during the latter part of September the Company
finally agreed with the Teamsters' view. As a result, when the new plant
opened for operation on October 2, the Teamsters, with the permission of the
Company, posted a copy of the contract then in effect at the West Springfield
plant on the bulletin board at Bradley Field. Above the contract the Teamsters
placed the following :
NOTICE TO EMPLOYEES
THIS IS A COPY OF THE
UNION AGREEMENT
IN EFFECT IN THIS SHOP
The union -shop clause of this agreement provides that "the Employer will not
retain in its employ any person who fails to become a member of the Local Union
within thirty days after being hired or who fails to remain a member in good
standing of the Local Union." The day after the posting of the contract the
'eamsters also posted the following :
NOTICE
Employees working for Brown Equipment & Manufacturing Company at
Bradley Field are part of the unit of the West Springfield Plant and are
covered by the Union Shop Agreement in effect between the Company and
this Local Union.
The Union Shop provision is duly covered by certification from the
National Labor Relations Board.
Under the provisions of the agreement, all employees in the classifications
of work listed are on a trial basis for thirty days. After the thirty days
trial they are entitled to seniority and are required to become members of the
Local Union.
At some time prior to the expiration of your thirty days trial period you
will be approached by a representative of the Local Union, who will make
arrangements to enter your application.
On October 3, Edmund Peresluha, a representative of the Machinists, visited
the plant and saw the notice and contract that had been posted by the Teamsters
on the Company's bulletin board. Peresluha vehemently protested to various
officials of the Company about the posting of the Teamsters' agreement. He
asked that it be removed because his union also had a contract with the Company
covering any new plant with as much right he claimed to be posted as the
Teamsters' contract. Besides, he said, the Machinists was organizing the new
employees. The Company then and later refused the Machinists' request.
The position taken by the Company is perhaps best summarized in a letter
dated October 20, 1950, addressed to the Teamsters :
As a result of our conversation here in the office, this is to advise you that
the company's establishment at Bradley Field (Windsor Locks, Conn.) is,
as far as we now contemplate, a temporary arrangement and such arrange-
ment is for the purpose of performing emergency work beyond the present
capacity of our Springfield shop. It would appear to me then that the
employees of Bradley Field are more or less part of the bargaining unit
recognized and established in West Springfield and adjacent area which
would coincide with the preamble to the contract now in effect between
Brown Equipment and Manufacturing Company and Local 404.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If my observations are correct , all shop personnel employed at the new
Windsor Locks establishment will be governed by the terms and working
conditions specified in our current arrangement with your Union.
Over the period of the next few weeks after the plant opened , and during
which the Company reached its full complement of workers , both Unions solicited
the newly hired employees . Despite the advantage of the Teamsters in being
able to point out to the employees that under the terms of the prevailing contract
they had to become members of its organization within 30 days after being hired,
nevertheless , the Machinists secured sufficient signatures so that by October 23
it was able to file a representation petition with the Board , after notifying the
Company that it represented a majority of its Bradley Field employees. The
Machinists contended that the production and maintenance employees at the
Bradley Field plant constituted an appropriate unit for the purpose of a Board
election . With the knowledge of the pendency of this petition the Company
and the Teamsters continued to negotiate a renewal of their contract and finally
consummated an agreement on November 7, 1950 , the agreement to be retroactive
to November 1. It provides that its terms shall govern "'the hours , wages and
working conditions of employees engaged in the building , maintenance , repair
and rebuilding of motor trucks and motor truck equipment , as classified herein,
in the Employer 's plant at West Springfield , Massachusetts , and adjacent area,
including employees at Bradley Field , Connecticut ." It also provides for recog-
nition of the Teamsters as "the sole bargaining agency for all employees engaged
in the work covered by this agreement," and contains a union-security clause
identical with the prior agreement . The new contract was placed on the bulletin
board in place of the one that had expired.
Despite the 30-day requirement to join the Teamsters set forth in both con-
tracts, a substantial number of the employees still refused to join the Teamsters
even though the requirements of the union-security clause were called to their
attention by the Teamsters. No doubt many of them heeded the advice of the
Machinists not to join the Teamsters. Indeed, on several occasions the Machin-
ists complained to the Company that the employees were being "pressured" and
"coerced" by the Teamsters to join. The following quotation from a letter the
Machinists sent to the Company on October 28, 1950, reflects the position taken
by the Machinists :
I have discussed this matter personally with you and with Mr. Gearwar,
Vice President of the Company, and have repeatedly admonished the above
practices are in violation of our Federal statutes. The above practices are
still continuing despite the fact that I have written you advising that the
International Association of Machinists represents a majority of the em-
ployees for collective bargaining, and despite the fact that the Company
has been notified by the NLRB that a question of Representation exists.
You are hereby notified that the continuation of the practices I have
mentioned above will be at the Company 's own peril. The International
Association of Machinists has advised your employees of their rights under
the existing laws, and has promised them the fullest protection before the
National Labor Relations Board.
Under the existing circumstances no employee may be discharged for his
support of the International Association of Machinists, or for his failure
and refusal to join the Teamsters ' Union . Any such discharge will be fully
prosecuted before the NLRB with claims for all wages lost from the date
of the discharge. I am sure you are aware that the law provides for such
restitution.
LOCAL 404, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 809
I earnestly hope the Company will take immediate steps to correct the
practices mentioned above and that it will not be necessary to prefer charges
of unfair labor practices before the NLRB.
The failure of so many of the employees to join the Teamsters despite the
Teamsters' advice to the Company that unless the employees complied with the
terms of the contract the Teamsters would take whatever steps were necessary
to enforce it, finally caused the Teamsters to engage in a work stoppage at the
Springfield plant on December 1, 1950. The Teamsters informed the Company
that unless it made "the employees under 30 days tenure at Bradley Field" join
the Teamsters that the Compony would be abrogating their agreement. As a
result, on December 6, the Company summoned the approximately 65 employees
at Bradley Field to a meeting in the locker room. There, in the presence of
several high officials of the Company, in addition to 2 representatives of the
Teamsters, the employees were advised by the Company that the Springfield
employees had "walked out" because the Bradley Field employees had not joined
the Teamsters and that under the terms of the agreement the Company "had to
insist" they join or be replaced.
About 30 or 40 employees who had previously refused to join the Teamsters
received permission to discuss the matter among themselves. They did so and
all but 7 agreed to join the Teamsters. After an arrangement was made with the
Teamsters' representative that the $25 initiation fee could be paid off at a rate
of $5 a week, the timekeeper called off the name of each employee on the payroll,
most of whom announced a willingness to join the Teamsters but "under protest."
Seven of them, however, still refused to join.
At about this time, Peresluha, the representative of the Machinists, arrived
at the plant pursuant to a telephone call made earlier by one of the employees.
The Company advised Peresluha of what had taken place and of the refusal of
the seven men to join the Teamsters. Peresluha threatened to file charges with
the Board if the men were discharged but agreed to talk with them. "I advised
the men to join the Teamsters' Union in order to hold their jobs, because if
they were fired it might take some time before their case was processed by the
Board . . . and our organization would be weakened by their loss, if they were
out of the plant," testified Peresluha. The seven men finally agreed to join
under protest. The following day, December 7, the employees at Springfield
returned to work.
The Board hearing arising out of the representation petition filed by the
Machinists took place on December 8. On April 9, 1951, the Board issued its
Decision and Direction of Election. After reviewing the facts the Board found:
While factors present in this case such as the interrelation of operations
of both plants indicate the appropriateness of a two-plant unit, they are
not so compelling as to require our holding that no other unit is appropriate.
The Board normally permits new employees at a new plant a voice in the
determination of whether or not they shall be separately represented apart
from the employees at other plants of their employer. We believe there-
fore that, upon the record in this case, including the geographical separation
between the two plants, the lack of interchange of personnel between the
plants, and the fact that there is no history of bargaining on a multiplant
basis, the proposed bargaining unit of employees at the Bradley Field plant
may also be appropriate, depending upon the results of the election here-
inafter directed. Accordingly, we shall direct an election in the following
voting group :
All persons employed in repairing, servicing, and maintaining equipment
at the Employer's Bradley Field, Windsor Locks, Connecticut, plant, exclud-
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing executives, office and clerical employees, guards, professional employees,
and supervisors as defined in the Act.
If a majority of the employees select the Petitioner as their representative,
they will be taken to have indicated their desire to be represented in a
separate unit; if a majority select the Intervenor, they will be taken to
have indicated their desire to be included with the employees at the West
Springfield plant in a two-plant unit.
The election was held on April 30, the Machinists receiving 30 votes and the
Teamsters 12 out of a total of approximately 48 eligible voters. Following is-
suance of the Board's formal certification on May 8, the Machinists and the
Company executed a collective-bargaining agreement. Upon the winning of the
election by the Machinists those employees that favored that union ceased paying
dues to the Teamsters and the Teamsters made no further effort to collect them
or to further insist on the application of its Springfield plant contract to the
Bradley Field employees.
B. The issues and conclusions
It is the General Counsel's contention that, under the facts found above, the
Teamsters violated Section 8 (b) (2) of the Act by: (1) Causing or attempting to
cause the Company to discriminate against its Bradley Field employees by
applying the November 1949 contract to these employees and similarly, by
executing and applying the November 1950 agreement as to them, and (2) by
requiring, as a condition of employment , the payment of initiation fees and
monthly dues by the Bradley Field employees.
The Teamsters contends that both it and the Company acted in entire good
faith under a bona fide belief that a combined unit of the Company's employees
at the Springfield and Bradley Field plants was the appropriate bargaining unit
and therefore that the extensions of the union -security agreements in question
were valid extensions of valid labor agreements.'
In reaching a conclusion I must interpret the unit requirement In the proviso
to Section 8 (a) (3) ' in accord with the statutory policy concerning units found
in Section 9. As we have seen, the Board , in the representation case arising out
of the Machinists' petition, followed its usual policy of fashioning a unit de-
termination which accorded to the employees "the fullest freedom in exercis-
ing the rights guaranteed by" the Act. In implementing this statutory pronounce-
ment it is the Board's policy not to sanction the inclusion of a distinct group of'
employees, at least where their community of interest is such that they might
alone constitute a separate appropriate bargaining unit, in a larger bargaining
group in which they will be a minority, without some expression of their prefer-
ence. Where, as here, a distinct , new group was concerned-and there was,
as to them, no bargaining history with its implications of acquiescence in the
unit-the Board afforded the new group an opportunity to decide by the vote
of their own separate majority whether or not they wished to become a part
i At the hearing, the General Counsel conceded that the agreements , so far as they
.applied to the Springfield plant only, were valid union-security agreements.
2 "Sec . 8 (a) It shall be an unfair labor practice for an employer . . . ( 3) by dis-
crimination in regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor organization : Provided,
That nothing in this Act . . . shall preclude an employer from making an agreement with
a labor organization (not established , maintained , or assisted by any action deflned'in
section 8 (a) of this Act as an unfair labor practice ) to require as a condition of employ-
ment membership therein . . . (i) if such labor organization is the representative of the
employees as provided in section 9 (a), in the appropriate collective -bargaining unit cov-
ered by such agreement when made ; . . [ Italics supplied ]
LOCAL 404, INTERN.-_,ONAL BROTHERHOOD OF TEAMSTERS, ETC. 811
of the larger group. And by their vote they made clear their wish not to become
a part of the larger group.'
Under these circumstances, the attempt by the Teamsters and the Company
to make the Bradley Field group a part of the existing Springfield unit was
repugnant to the basic statutory policy. The agreement to extend the Novem-
ber 1949 contract to the Bradley Field plant and the specific inclusion of that
plant in the November 1950 agreement were both invalid when executed because
the two-plant unit "covered by such agreement when made" could not then be
before the employees had the opportunity of exercising their choice-and as it
turned out was not-the appropriate bargaining unit as specified in Section 8 (a)
(3) (i) of the Act.4 This is particularly true, where, as here, both the Teamsters
and the Company were on notice that the Machinists claimed to represent a
majority of the Bradley Field employees at the time the November 1950 contract
was executed. In the face of the Machinists' representation claim both the
Teamsters and the Company acted at their peril. A union has no more right
than an employer to attempt to arrogate to itself a responsibility that Congress
has delegated to the Board.' Where an employer is caught in the cross-fire of
conflicting union claims to bargaining rights it is the Board in the final analysis
that makes the definitive resolution and not the employer or the competing
unions. Here, the employer and one of the competing unions in the face of a
representation petition decided to determine the question of representation them-
selves. The Board having determined that there was a real question of repre-
sentation raised by the petition, the Teamsters, the only respondent named in
the complaint, must accept the consequences of its action. And this is true re=
gardless of the good or bad faith of the Teamsters. The Board has consistently
held that the mere execution of an invalid union-shop contract, no less its en-
forcement, constitutes a violation of the Act. The real test is whether conduct
has been engaged in which, it may reasonably be said, tends to interfere with
the free exercise of rights guaranteed by the Act.
I find that by urging and agreeing with the Company to apply the union-
security terms of the November 1949 contract to the Bradley Field employees and
by executing and enforcing the November 1950 agreement, including the require-
ment of paying initiation fees and dues at least until the Board election sometime
in April 1951 insofar as it pertained to the aforesaid employees, the Teamsters
joined with the Company in creating conditions which would result in discrimi-
nation and the Teamsters thereby attempted to cause the Company to discrimi-
nate against its employees in violation of Section 8 (a) (3) of the Act, thereby
violating Section 8 (b) (2), and likewise restrained and coerced these employees
in the exercise of the rights guaranteed in Section 7 of the Act, in violation of
Section 8 (b) (1) (A).
There is also undenied evidence in the record that the Teamsters informed a
number of the Bradley Field employees that under the terms of the respective
agreements in question that they had to join the Teamsters as a condition of
employment. One employee was told "Join up, or else" ; another, that if he did
not join the Teamsters within 30 days that he would be laid off. I find these
statements constituted independent violations of Section 8 (b) (1) (A) of the
Act.
s Cf. Chicago Freight Car & Parts Co , 83 NLRB 1163.
4 See Graham Ship Repair Co., 60 NLRB 842, and Albert Love Enterprises and Foote
& Davies, 66 NLRB 416, 422
5 See Midwest Piping & Supply Co , 63 NLRB 1060 , and cases of similar import decided
since developing what has become known as the Midwest Piping doctrine.
812 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Teamsters set forth in section III, above,
occurring in connection with the operations of the Company described in section
1, above, has a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead and have led to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Teamsters has engaged in unfair labor practices
within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act, I will
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Proof was adduced at the hearing that 31 named employees joined the Team-
sters under protest as a result of the coercion of the Teamsters and paid initiation
fees and also dues until the Machinists won the Board election in April 1951.
The General Counsel urges that these 31 employees be afforded restitution for
the initiation fees and dues each of them paid to the Teamsters. The Respond-
ent urges , that even if a violation of the Act be found, that all "of the things
done by the Respondent were in good faith and in the honest belief that it was
acting properly and within its rights, and not in violation of any law" and that
since it secured a wage increase for these employees when it negotiated the
November 1950 contract and thereafter impartially and effectively represented
them in various grievance matters, that it would not effectuate the policies of
the Act to order the restitution of the initiation fees and dues.
While I do not doubt that the Teamsters acted in the honest belief that the
employees at the Springfield and Bradley Field plants constituted an appropriate
two-plant unit and that the contracts in question could therefore be validly ap-
plied to the Bradley Field employees, nevertheless, it has been found that the
Teamsters did resort to conduct unlawful under the Act, conduct that will remain
unremedied unless the 31 employees are made whole and the status quo restored.
Since I believe, as urged by the General Counsel, that it will effectuate the poli-
cies of the Act, I will recommend that the Teamsters reimburse the 31 employees
named in the appendix for the actual initiation fees and dues each paid to the
Teamsters."
Upon the above findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Brown Equipment and Manufacturing Co., Inc., is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. International Association of Machinists and Local 404, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, both
affiliated with the American Federation of Labor, are labor organizations within
the meaning of Section 2 (5) of the Act.
3. By agreeing with the Brown Equipment and Manufacturing Co., Inc., to
extend and apply the terms and provisions of the collective-bargaining contract
of November 1949 in force and effect at Springfield to the Company's employees
at Bradley Field, and by executing and enforcing the terms and conditions of
the renewal agreement of November 1950 to the aforesaid Bradley Field em-
ployees, including the requirement that these employees pay initiation fees and
6 Cf. Eclipse Lumber Company, lam, 95 NLRB 952.
FORD MOTOR COMPANY 813
dues to the Teamsters , the Teamsters has, at least until April 30, 1951 , caused
and attempted to cause the Company to discriminate against its Bradley Field
employees in violation of Section 8 (a) (3) of the Act, and has restrained and
coerced such employees in the- exercise of rights guaranteed in Section 7 of the
Act, thereby engaging in unfair labor practices within the meaning of Section 8
(b) (2) and ( 1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 ( 6) and ( 7) of the Act.
[Recommendations omitted from publication in this volume.]
FORD MOTOR COMPANY and INTERNATIONAL UNION , UNITED AUToMo-
BILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,
CIO, PETITIONER
FORD MOTOR COMPANY and INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS , LOCAL No. 38 , AFL, PETITIONER
FORD MOTOR COMPANY and INTERNATIONAL UNION OF OPERATING
ENGINEERS , LOCAL 589 , AFL, PETITIONER
FORD MOTOR COMPANY-CLEVELAND ENGINE PLANT AND CLEVELAND
FOUNDRY and UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES
& CANADA, PIPEFITTERs LOCAL UNION No. 120, AFL, PETITIONER
FORD MOTOR COMPANY and PIPEFITTERS LOCAL UNION No. 120, UNITED
ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING
AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL,
PETITIONER
FORD MOTOR COMPANY and SHEET METAL WORKERS , INTERNATIONAL
ASSOCIATION, LOCAL No. 65, AFL, PETITIONER . Cases Nos. 8-RC-
1519, 8-RC-1526, 8-RC-1540, 8-RC-15543, 8-RC-1590, and 8-RC-
1599. August 27,1952
Decision , Direction of Elections , and Order
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, consolidated hearings were held on
February 5, 6, and 7, 1952, in Cases Nos. 8-RC-1519, 1526, 1540, and
1543,1 and on March 6, 1952, in Cases Nos. 8-RC-1590 and 1599, be-
fore Carroll L. Martin, hearing officer .2 The hearing officer's rulings
'The petition in Case No. 8-RC-1543, filed by United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada,
Pipefitters Local Union No. 120, AFL, herein called the Plpefltters, was withdrawn with-
out prejudice during the hearing.
' At the second hearing, the Employer moved that the two groups of cases be consoli-
dated. The motion, which was referred by the hearing officer to the Board , is hereby
granted.
100 NLRB No. 133.