Pacific Intermountain Express Co., 837 (1962)

this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act We will not discriminate in regard to the hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization BAUSCH & LOMB OPTICAL COMPANY,

Employer Dated ... . By . ....

(Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered.

defaced , or covered by any other material PACIFIC INTERMOUNTAIN EXPRESS COMPANY and CARLOS BEALL

PACIFIC INTERMOUNTAIN EXPRESS COMPANY and PAUL DUNBAR

PACIFIC INTERMOUNTAIN EXPRESS COMPANY and ALVIN CHATBURN

PACIFIC INTERMOUNTAIN EXPRESS COMPANY and J. M.

NIEHAUS

PACIFIC INTERMOUNTAIN EXPRESS COMPANY and WILLIS BRADSHAW

INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN & HELPERS OF AMERICA,

Over -the-Road and City Transfer Drivers , Helpers, Dockmen & Warehousemen, Local No. 41, AFL and CARLOS BEALL

INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA,

Over-the-Road and City Transfer Drivers, Helpers, Dockmen & Warehousemen , Local No. 41, AFL and PAUL DUNBAR INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA,

Over -the-Road and City Transfer Drivers, Helpers, Dockmen & Warehousemen , Local No. 41, AFL and ALVIN CHATBURN ' INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA,

Over -the-Road and City Transfer Drivers , Helpers, Dockmen & Warehousemen , Local No. 41, AFL and J.M. NIEHAUS 107 NLRB No. 158.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA,

Over-the-Road and City Transfer Drivers, Helpers, Dockmen & Warehousemen, Local No. 41, AFL and WILLIS BRADSHAW. Cases Nos. 17-CA-535,17-CA-536,17-CA-537, 17-CA-541, 17-CA-583, 17-CB-64, 17-CB-65, 17-CB-66, 17-CB-68, and 17-CB-79. January 14, 1954.

DECISION AND ORDER

On April 29, 1953, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled consolidated proceedings, finding that the Respondents, Pacific Intermountain Express Company, herein called the Respondent Company or the Company, and International Brotherhood of Teamsters,

Chauffeurs, Warehousemen & Helpers of America, Over-theRoad and City Transfer Drivers, Helpers, Dockmen & Warehousemen, Local No. 41, AFL, herein called the Respondent Union or the Union, 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. The Trial Examiner also found that the Respondent Company had not engaged in certain other alleged unfair labor practices, and recommended dismissal of those allegations of the complaint. Thereafter, the Respondent Company, the Respondent Union, and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Respondent Company and the Respondent Union also requested oral argument. This request is hereby denied because, in our opinion, the record,' the exceptions, and the briefs adequately present the issues and the positions of the parties.

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent indicated below and with the following additions and modifications:

1. We find, in agreement with the Trial Examiner, that the Respondent Company discriminated against Carlos Beall, Paul Dunbar, Alvin Chatburn, J. M. Niehaus, and Willis Bradshaw in violation of Section 8 (a) (3) and 8 (a) (1) of the Act.

   For the past 9 years, the Company, which is engaged in the transportation of commodities by motor carrier, has recognized the Union and the Central States Drivers Council as the exclusive representative of the over-the-road drivers em1 The Board has corrected the record in accordance with the 'Stipulation to correct Transcript' filed by the parties.

   ployed at its Kansas City, Missouri, terminal , pursuant to the 'Central States Area Over- the-Road Motor Freight Agreements,' which cover several thousand employers and various Teamsters locals in a 12 State area .2 The contract executed by the Respondents on November 12, 1949, to be effective from November 16, 1949, until January 31, 1952, contained, in addition to a deferred union- security provision , the following provisions:

   Article V. Seniority rights for employees shallprevail Seniority . . . . . A list of employees arranged in the Section 1. order of their seniority shall be posted in a conspicuous place at their place of employment. Any controversy over the seniority standing of any employee on this list shall be referred to the Union for settlement.

   Section 3 .(a) All runs and new positions are subject to seniority and shall be posted for bids . . .

   When it becomes necessary to reduce the working force , the last man hired shall be laid off first, and when the force is again increased , the men are to be returned to work in the reverse order in which they are laid off. (Emphasis supplied.) On January 31, 1952 , the Respondents executed another contract, effective from February 1, 1952, until January 31, 1955.

   This contract contains seniority provisions similar to those in the preceding contract . Article V, however, was amended in the respect underscored below:

   Article V. . . . . Any controversy over the seniority Seniority . standing of any employees on this list shall Section 1 . be referred to the Union for settlement.

   Such determination shall be made without regard to whether the employees involved are members or not members of a Union.

   The Company operates a set number of regularly scheduled runs on four main routes from its Kansas City terminal. Pursuant to the contracts set forth above, these runs , commonly referred to as 'bid runs ,' are posted for bidding at least once a year and are awarded solely on the basis of the seniority of the employees bidding . In addition to these regularly scheduled runs, the Company also operates runs to take care of any overflow business , and maintains an 'extra board' 2 The Respondent Company has been represented in the negotiations and execution of these contracts by the Central States Area Employers Association , of which it is a member.

   listing the names of the drivers operating these extra runs.

   Unlike the regular runs, extra runs are not subject to bidding.

   Employees who do not obtain regular runs, either because they do not possess enough seniority or, for some reason, fail to submit bids, are automatically placed on the extra board.

   From 1946 until November 1951, extra runs were assigned among the employees on the extra board on a rotation basis.

   In November 1951, however, pursuant to an agreement between the Respondents, the Company began to operate the extra board on a seniority basis . In April or May 1952, at the request of the Respondent Union, the Company reverted to a rotation system in the assignment of extra runs and, in July 1952, also upon the request of the Union, changed back to a seniority system. At the time of the hearing, extra runs were being assigned by the Respondent Company on the basis of seniority.

   Although both the 1949 and 1952 contracts between the Respondents provide merely that 'controversies' with respect to seniority shall be referred to the Union for settlement, it is clear, as the Trial Examiner found, that the Respondent Union actually determined the seniority standing of all employees covered by these agreements. Thus, the seniority lists which were posted by the Company at its terminal and which, pursuant to the Respondents' contracts, were utilized by the Company in effecting reductions in force and in the assignment of regular runs and of extra runs during the periods when the extra board was operated on a seniority basis, were those prepared by the Union and not those originally prepared by the Company on the basis of the dates of employment of the employees listed. Further, the record reveals, as the Trial Examiner found, that the Respondent Union, in preparing its seniority lists, established the seniority dates of employees who were not members of the Union when hired as of the date upon which they became members of the Union rather than as of the date of their employment;3 with respect to those employees who were members of the Union when hired, however, their seniority was established as of the date of their employment by the Company.

   3 The Union admits that, pursuant to a rule of 15 years' standing, it had, until April 21, 1952, fixed the seniority of employees transferring from another Teamsters local as of the date they effected their transfer to the Respondent Union, rather than as of the date of their employment This policy was changed by the Union on April 21, 1952, and, since that date, the Union has established the seniority of employees transferring from another Teamsters local as of the date of their employment by the Company. The Union also admits that, pursuant to the international constitution, the seniority of employees on withdrawal cards from the Respondent Union dated--and still dates- -from the time that they deposited their withdrawal cards with the Union and not from the date of their employment. The seniority lists in evidence further reveal, as the. Trial Examiner found in discrediting the contrary testimony of the president of the Respondent Union, that the Union fixed the seniority of those employees who were not members of the Union when hired and who were not on transfer or withdrawal cards, as of the date of their initiation into membership rather than...