Armored Car Chauffeurs & Guards Local 820, Etc.

National Labor Relations Board - Board Decisions

Dec 2, 1963

145 N.L.R.B. 225 (N.L.R.B. 1963)

ARMORED CAR CHAUFFEURS & GUARDS LOCAL 820, ETC. 225
Armored Car Chauffeurs and Guards Local Union No. 820, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America and Charles T. O'Donohue and
United States Trucking Corporation, Party in Interest. Case
No. 2-CB-2621. December 0, 1963
DECISION AND ORDER
On January 9, 1961, Trial Examiner David London issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged ill
the complaint and recommending that the complaint be dismissed, as
set forth in the attached Intermediate Report. Thereafter, the Gen-
eral Counsel and the Charging Party filed exceptions to the Inter-
mediate Report together with supporting briefs.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
The Employer is in the business, inter aiia, of providing armored
cars and guards for transportation of cash and other valuables. Since
1954 Respondent Union has been the collective-bargaining representa-
tive of employees working on trucks in the armored car division. The
collective-bargaining agreement in effect during the events hereinafter
related contains a lawful union-security clause, but provides that it
shall not be applicable "where it is necessary to use additional men for
peak work . . . ." The seniority provision of the contract defines
three categories of employees : regular, extra, and auxiliary. The
first two categories have seniority rights, the third does not.' Regular
employees are defined as those who are guaranteed 42 hours of work
per week and are always available for work; extra employees are those
who are available for work at all times but are not 'guaranteed 5 days
of work per week; auxiliary employees are those who have a place of
employment elsewhere or who are not available for work at all times
during the week or who do not possess the qualifications required by
the Employer for regular and extra employees. Section 2(E) of the
contract also provides :
1 Other provisions of the contract differentiate among the categories of employees in re-
spect to benefits. Thus, auxiliary employees are not entitled to vacation benefits or paid
holidays , auxiliary and extra employees working less than 3 days per week are granted
sickness and accident insurance only in amounts and for periods prescribed by State
statute, whereas xegular and extra employees working more than 3 days each week receive
more liberal health- and life-insurance benefits
145 NLRB No. 25
734-070-64-vol 145 16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Auxiliary employees shall have no right or claim to promotion
to the category of regular or extra employees irrespective of any
change in their availability.
The Charging Party, O'Donohue, had been a New York City fireman
for 20 years preceding his retirement on July 1, 1959. In June 1954,
he had begun working for the Employer on a part-time basis as an
auxiliary employee. Shortly after the commencement of his employ-
ment with the Employer, O'Donohue signed an application for mem-
bership in the part-time division of Respondent. In his application
form he indicated approval of the following union resolution :
Resolved, that a separate unit of Local 820 be established, to be
known as LOCAL 820, PART-TIME DIVISION, to include all
members having'employment or business outside our craft or hav-
ing a retired status, such members to pay only $25.00 initiation fee,
to pay regular dues, and not to be eligible for any full-time em-
ployment, and to conduct their affairs in all respects as a separate
unit, subject to the By-laws and all rules and regulations of
Local 820.
On the eve of his retirement from the fire department, O'Donohue
applied to the Employer for full-time employment as a guard begin-
ning July 1, 1959. A company official called his attention to the clause
in the contract governing his situation (presumably section 2(E)
quoted above), and told him to get clearance from Respondent, which
O'Donohue agreed to do. Apparently because of expressions of dis-
satisfaction by other employees who believed that O'Donohue's promo-
tion to a regular position would work to their disadvantage, Respond-
ent refused to agree to a change in O'Donohue's status. Explaining
the reason for the refusal, Respondent wrote O'Donohue as follows :
Since July 26, 1954, you have been and still are employed as an
auxiliary employee of Local 820 Part-Time Division. Your job
rights like the job rights of all others pare covered by the collective
bargaining agreement. This collective bargaining agreement
states under Section (2) paragraph (E) "Auxiliary employees
shall have no right or claim to promotion to the category of
regular or extra employees irrespective of any change in their
availability." Under this collective bargaining agreement, the
executive board of the Armored Car Chauffeurs and Guards Local
Union 820, cannot make any change in your status.
Respondent also informed the Employer that the contract did not per-
mit a change in O'Donohue's status and requested that he not receive
more work than he had in the past. The Employer has rejected Re-
spondent's demand and has employed O'Donohue as a regular em-
ployee stating that it is the sole judge of whom it may hire for any
job category.
ARMORED CAR CHAUFFEURS & GUARDS LOCAL 820, ETC. 227
The General Counsel contends that Respondent has violated Section
8(b) (1) (A) and (2 ) of the Act by:
(1) Maintaining in effect an arrangement or understanding with
the Employer whereby auxiliary employees are required to pay initia-
tion fees and dues to Respondent as a condition of employment
notwithstanding (a) the absence of a valid agreement requiring mem-
bership in Respondent as a condition of employment, and (b) the
ineligibility of auxiliary employees for regular membership in
Respondent.
(2) Attempting to cause the Employer to deny regular employment
to O'Donohue because he was not a regular member of Respondent.
The Trial Examiner rejected these allegations and recommended
that the complaint be dismissed. We agree with him.
1. (a) Coverage of the contract: The collective-bargaining con-
tract in issue covers "all ... employees working on trucks ...."
The union -security clause extends to "any person in the class above
mentioned . . ." except that "where it is necessary to use additional
men for peak work, men hired for that purpose shall not be required
to join the Union, for unanticipated emergencies the Employer may
utilize men obtained from any source , which men shall not be required
to join the Union." The General Counsel contends that auxiliary
employees are employed for "peak work" and therefore by the express
terms of the contract are excluded from the coverage of the union-
security clause. As evidence to support this construction, he points
to the fact that the checkoff provisions of the agreement do not apply
to auxiliary employees.
We reject the construction placed on the union -security clause by
the General Counsel. The evidence is overwhelming that both Re-
spondent and the Employer consider that auxiliary employees are
covered by the union-security clause. Thus, the Respondent regularly
notifies the Employer of dues delinquency by auxiliary employees, rand
the Employer in turn notifies the employees of the delinquency and
the need for payment. The fact that regular and extra employees have
their dues checked off , whereas auxiliary employees pay their dues
directly to Respondent , is of no significance . Apparently the differ-
ent payment practice is attributable to the circumstance that earnings
of auxiliary employees may be irregular although their obligation to
pay dues is not. During the course of this dispute neither O'Donohue
nor the Employer ever contended that the union -security clause was
inapplicable to the former . And at no time has O 'Donohue refused to
pay or the Respondent to receive the former's regular dues as a member
of the latter . According to the understanding of the parties as ex-
pressed in the practice, the union -security exception for men hired for
"peak work" or for "unanticipated emergencies " applies to casual and
not to auxiliary employees.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Eligibility of auxiliary employees for membership in Respond-
ent: The General Counsel further argues that even if the union-
security provision is interpreted as requiring auxiliaries to become
and remain members of Respondent Local 820, enforcement thereof
to require their membership in the part-time division would be unlaw-
ful. To support this argument lie refers to the first proviso of Section
8(a) (3) which permits a union-security agreement if the "labor or-
ganization is the representative of the employees as provided in Section
9 (a). . . ." From this he apparently deduces that, as the bargaining
agent, Respondent Local 820 cannot require membership in the part-
time division, in compliance with the union-security clause, since the
members of that division are not "unqualified members of Local 820,"
and, therefore, the union-security clause is illegal as applied to the
auxiliary employees.
The Board as a general proposition has no authority to police the
internal affairs of labor unions.' The proviso to Section 8(b) (1) (A)
specifically provides:
That this paragraph shall not, impair the right of a labor organi-
zation to prescribe its own rules with respect to the acquisition or
retention of membership therein.
This limitation means, according to the courts and the legislative his-
tory, that labor organizations may "enforce their internal policies
upon their membership as they see fit." 3 It is only to the extent that
a labor organization seeks to impair an employee's protection under the
Act on the basis of noncompliance with those regulations that the mat-
ter becomes a concern of the Board.' Accordingly, we find no basis
for holding illegal the union-security agreement in this case which by
its terms conforms with all the requirements of the statute.
2. Attempt to cause denial of employment to O'Donoltue: The Gen-
eral Counsel asserts that Respondent sought to prevent O'Donohue's
employment as a regular employee because he had been denied full
membership in Respondent, and that the reliance on section 2(E) of
the contract was a pretext. The Trial Examiner rejected this argu-
ment and found as a fact that Respondent's objection to the hiring of
O'Donohue as a regular employee was motivated by its desire to en-
2 Nassau and Suffolk Contractors ' Association, 118 NLRB 174. Title I of the Labor-
Management Reporting and Disclosure Act of 1959 contains a bill of rights for members
of labor organizations and provides for civil enforcement of those rights in the Federal
district courts.
8 American Newspaper Publishers Association v. N L R B , 193 F. 2d 782, 806 (C A. 7),
affd. 345 U.S 100; Legislative History of the Labor-Management Relations Act, 1947,
pp. 1097, 1141, 1142, 1420.
4 N.L R B. v. Philadelphia Iron Works , 211 F. 2d 937 , 941 (C.A. 3) ; Union Starch &
Refining Co v. NLRB , 186 F. 2d 1008, 1012-1013 ( C A 7), cert. denied 342 U.S 815,
The Babcock & Wilcox Company, 110 NLRB 2116 , 2132-2133 ; National Lead Company,
106 NLRB 545 , 547. See also Moynahan v Pari-Mutuel Employees Guild, 317 F. 2d
209 (C A. 9).
ARMORED CAR CHAUFFEURS & GUARDS LOCAL 820, ETC. 229
force section 2(E) of the collective-bargaining agreement with the
Employer. We believe that the weight of the evidence supports this
finding of the Trial Examiner.
When O'Donohue applied to the Employer for a regular job, both
he and the Employer acknowledged that there was a contract ob-
stacle to his employment and that a "clearance" or waiver would have
to be obtained from Respondent. In an attempt to obtain this "clear-
ance," O'Donohue applied for regular membership in Respondent. It
is clear that both O'Donohue and Respondent understood that if the
regular membership was granted, then Respondent would thereby
waive the contract objection to his employment and vice versa. Re-
spondent refused to grant him regular membership and therefore to
waive section 2(E) of the contract. The reason for Respondent's re-
fusal, given to both O'Donohue and the Employer, was that the con-
tract provided that "Auxiliary employees shall have no right or claim
to promotion to the category of regular or extra employees irrespec-
tive of any change in their availability."
The General Counsel has not brought forth evidence sufficient to
establish that this professed reason was a pretext. O'Donohue was a
member in good standing of Respondent's part-time division. There
seems to have been no preexisting antagonism between him and the
leadership of Respondent. Respondent's attempt to deny regular em-
ployment was therefore not motivated by any desire to discriminate
against him because of union considerations.' The fact that section
2(E) had its origin, or has a substantial counterpart, in a union resolu-
tion does not make it unlawful.' As included in the contract, it deals
with a condition of employment-promotion-on a. basis unconnected
with union loyalty, membership, or obligation, and therefore is lawful.
Further, Respondent was seeking to enforce the lawful contract pro-
vision, as it had a right to do, against O'Donohue.
Nor can it be said that in incorporating section 2 (E) in its collective-
bargaining contract with the Employer, Respondent was guided by
arbitrary or irrelevant considerations, inconsistent with its duty fairly
to represent all employees in the bargaining unit .7 A contract provi-
sion which seeks to restrict the transfer of employees from one cate-
gory to another is, at least presumptively, within that "wide range of
'Millwrights' Local Union 1102, Carpenters (Planet Corp ), 144 NLRB 690; Daugherty
Company, Inc, 112 NLRB 986.
6 See N.L R B v News Syndicate Company, 365 U S. 695 ; Honolulu Star Bulletin v
NLRB , 274 F. 2d 567 (C.A.D C) ; N.L.R.B. v. Furriers Joint Council, 224 F. 2d 78, 80
(CA. 2) ; Daugherty Company, Inc., supra; Local 450 International Union of Electrical,
Radio & Machine Workers (Sperry Gyroscope Co ), 128 NLRB 682.
7 Cf. Miranda Fuel Company, Inc, 140 NLRB 181 (Chairman McCulloch and Member
Fanning dissenting). In accord with their dissent in that case, Chairman McCulloch and
Member Fanning do not rely for the finding of no violation here on any criteria which
judge the Respondent's action in terms other than those of encouragement of union mem-
bership or loyalty, the acknowledgment of union authority, or the performance of union
obligations.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasonableness . . . allowed a statutory bargaining representative in
serving the unit it represents," especially where, as here, there is no
evidence that in insisting upon this contract provision Respondent
acted other than in complete good faith and honesty of purpose exer-
cising its discretion.'
Accordingly, we find that in seeking to administer the contract as
to O'Donohue, Respondent did not violate Section 8(b) (1) (A) or
(2) of the Act. We shall, therefore, dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
s Ford Motor Co. v. Huffman, 345 U.S. 330, 338. Accord : Aeronautical Lodge v.
Campbell, 337 U.S. 521 ; Local 357 , International Brotherhood of Teamsters, etc v.
NL.R.B. ( Los Angeles-Seattle Motor Express ), 365 U.S 667 ; Britt v. Trailmobale, 179
F. 2d 564 (C.A. 6) ; Mtillwright8' Local Union 1102 , Carpenters ( Planet Corp .), supra
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge, and an amended charge , filed against Armored Car Chauffeurs and
Guards Local Union No. 820, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , hereafter called the Union, the General
Counsel issued an amended complaint dated April 18, 1960, alleging that the Union
has engaged in and is engaging in unfair labor practices affecting commerce within
the meaning of Section 8(b)(1)(A ) and 8 (b)(2) of the National Labor Relations
Act, as amended 61 Stat . 136, herein called the Act.
In substance, the amended complaint alleges that since on or about January 27,
1959, the Union has maintained in effect and enforced an agreement , arrangement,
practice, and understanding with United States Trucking Corporation , hereafter called
the Company , whereby auxiliary employees of the latter have been and are required
to pay initiation fees and dues and other fees to the Respondent Union as a condition
of employment notwithstanding the absence of any valid agreement requiring member-
ship in the Union as a condition of employment , and notwithstanding the ineligibility
of auxiliary employees for regular membership in the Union . The amended com-
plaint further alleges that on or about June 25 and July 6, 1959 , and at all times
since those dates, the Union required and/or instructed , and continues to require
and instruct , the Company to refuse regular employment to Charles O'Donohue be-
cause he was not a regular member of the Union . By its answer duly filed, the
Union denied the commission of any unfair labor practice.
Pursuant to due notice, a hearing was held before Trial Examiner David London
in New York , New York, on July 11 and 12, 1960. All parties to the proceeding
were represented at the hearing and were afforded full opportunity to be heard,
to examine and cross-examine witnesses , and to introduce evidence pertaining to
the issues . Since the close of the hearing , a brief has been received from the Union
which has been duly considered.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. COMMERCE
At all times relevant herein , the Company has maintained its principal office and
place of business in the city of New York, New York, and at various other places of
business , warehouses , and other facilities in the States of New York, New Jersey,
and Massachusetts , and has been continuously engaged at said places of business
and facilities in providing and performing armored car trucking and general truck-
ing services and related services.
ARMORED CAR CHAUFFEURS & GUARDS LOCAL 820, ETC. 231
During the year prior to the commencement of this proceeding, the Company, in
the course and conduct of its business operations, caused to be purchased, transferred,
and delivered to its places of business in New York State, gasoline, tires, armored
cars, and other goods and materials, valued at an amount in excess of $500,000, of
which goods and materials having a value in excess of $50 ,000 were transported to
said places of business in interstate commerce directly from States of the United
States other than the State of New York, or were received from other enterprises
located in the State of New York, which other enterprises had received the said goods
and materials in interstate commerce from States other than the State of New York.
During the year preceding the commencement of this proceeding, the Employer,
in the course and conduct of its business operations, performed services valued at
an amount in excess of $500,000, of which, services valued at in excess of $250,000
were performed in States other than the State of New York, wherein the Company
is located, or were performed for various enterprises located within the State of
New York, each of which enterprises annually produces and ships goods having
a value in excess of $50,000 out of the State of New York, or were performed for
various banks and other instrumentalities and channels of commerce, each of whose
gross revenues are in excess of $ 500,000 per annum.
I find that the Company is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union is a labor organization within the meaning of Section 2(5) of
the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
Charles T. O'Donohue, the Charging Party herein, had, for approximately 20 years
prior to July 1, 1959, been steadily engaged as a full-time employee of the New York
City fire department. On July 1, 1959, be became eligible for, and went into, retire-
ment from that position and became a pensioner of the fire department. From and
after June 1954, in order to supplement his income , O'Donohue obtained part-time
employment with the Company as an auxiliary employee for service on its armored
vehicles. Auxiliary employees of the Company receive employment only after regu-
lar and extra employees are assigned.
In June 1954, and ever since, the Company and the Union have maintained in
effect a collective-bargaining agreement wherein the Company recognized the Union
as the sole collective-bargaining representative of all its employees working on trucks
in the metropolitan areas of the city of New York, New York, and Newark, New
Jersey. The contract contained a union-security agreement requiring membership in
the Union by all its employees as a condition of employment.
The record discloses that at least since March 12, 1956, if not prior thereto, the
collective-bargaining agreements in effect between the Company and the Union also
contained the following provisions:
2. Seniority
A. The principle of seniority is to be observed and for that purpose it is
recognized that there are three categories of employees: Regular employees,
extra employees and auxiliary employees. With respect to employment and
layoffs, regular employees shall have preference over extra employees and
auxiliary employees. Auxiliary employees shall hold no seniority rights under
this agreement. Strict seniority shall apply within the category of regular
and extra employees, i.e., junior employees shall be laid off before senior em-
ployees and senior employees shall be rehired before junior employees.
B. Regular employees are those employees who are guaranteed forty-two (42)
hours of work in five (5) days per week and are available to work for the em-
ployer at all times during the said week. The number of regular employees shall
be determined by the employer's minimum normal manpower requirements
which may vary from time to time.
C. Extra employees are those employees who are available to work for the
employer at all times during said week but are not guaranteed five (5) days of
work per week. When three (3) or more days of work per week shall be regu-
larly available to a single auxiliary employee, the employer shall add an extra
employee to its payroll. The decision as to whether three (3) or more days of
work are regularly available shall be based on the employer's minimum normal
manpower requirements.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Auxiliary employees are those employees who have a place of employ-
ment elsewhere or who are not available to work for the employer at all times
during the week, or who do not possess the qualifications required by the em-
ployer for regular and extra employees.
E. Auxiliary employees shall have no right or claim to promotion to the
category of regular or extra employees irrespective of any change in their avail-
ability. [Emphasis supplied.]
On July 26, 1954, O'Donohue signed an application for membership in the Union's
part-time division and agreed to be bound by the following resolution clearly printed
on this application:
ARMORED CAR CHAUFFEURS AND GUARDS LOCAL UNION No. 820
PART-TIME DIVISION
Resolution
Resolved that a separate unit of Local 820 be established to be known as
Local 820, Part-Time Division , to include all members having employment or
business outside our craft or having a retired status, such members to pay only
$25 initiation fee, to pay regular dues and not to be eligible for any full-time
employment , and to conduct their affairs in all respects as a separate unit,
subject to the bylaws and all rules and regulations of Local 820 . [Emphasis
supplied.]
O'Donohue 's application in the part -time division being accepted , he paid the
part-time division initiation fee of $25 1 and he has since that time paid the same
monthly dues required of all other members of Local 820. Since June 1954,
O'Donohue has been an auxiliary employee of the Company.
On or about June 10, 1959 , O'Donohue informed Michael O 'Sullivan , "liaison
director" for the Company, of his anticipated retirement from the fire department
and asked O'Sullivan for full-time employment with the Company after July 1.
O'Sullivan "pointed out to him that [they ] had a clause in the contract" and asked
him if he was familiar with it and O'Donohue said that he was. O'Sullivan stated
that the Company did not want any "hassle ," and told him "to get clearance all
around from the Union" which O'Donohue agreed to do. He went to Shop Steward
Conniff and told him of his conversation with O'Sullivan.
On or about June 25, 1959 , O'Donohue received the following letter from the
Union's recording secretary.
JUNE 25, 1959.
CHARLES T. O'DONOHUE,
81 Carleton Terrace,
Stewart Manor, Long Island.
DEAR SIR, Since July 26, 1954, you have been and still are employed as an
auxiliary employee of Local 820 Part-Time Division. Your job rights like the
job rights of all others are covered by the collective bargaining agreement.
This collective bargaining agreement states under Section ( 2) paragraph (E)
"Auxiliary employees shall have no right or claim to promotion to the category
of regular or extra employees irrespective of any change in their availability."
Under this collective bargaining agreement, the executive board of the
Armored Car Chauffeurs and Guards Local Union 820, cannot make any
change in your status.
Fraternally yours,
(S) ROBERT J. RELAY,
Recording Secretary.
On July 6, 1959 , Shop Steward Murphy informed O'Sullivan that "O'Donohue is
not to get any more work than he did in the past; that his status hadn 't changed any
and he remains as is," and that O'Donohue's demand "was turned down due to the
clause in the contract ." Ever since the date of its letter , the Union has frankly and
openly insisted upon the enforcement of its collective -bargaining agreement with the
Company that auxiliary employees are not eligible for employment as regulars
irrespective of any change in their availability and has so advised the Company.
Notwithstanding the position taken by the Union and the provision under the
existing agreement that "auxiliary employees shall hold no seniority rights," O'Sullivan
1 The initiation fee for membership In Local 820 Is $150
ARMORED CAR CHAUFFEURS S. GUARDS LOCAL 820, ETC. 233
testified that he posted O'Donohue's name on the seniority register of regular em-
ployees as of July 1, 1959, and that he continues to enjoy "full seniority" as of that
date over regular employees hired after that date. O'Sullivan further testified that
the Company has "paid no attention" to the contention of the Union, and that
O'Donohue has been "given regular employment" (as distinguished from sporadic
employment as an auxiliary employee) since July 1, 1959.
Concluding Findings
As previously indicated, the amended complaint alleges that the Union has main-
tained in effect and enforced an agreement, arrangement, practice and understanding
with the Company whereby auxiliary employees have been and are required to pay
initiation fees and dues and other fees to the Union as a condition of employment
notwithstanding the absence of any valid agreement requiring membership in the
Union as a condition of employment. To sustain that allegation, the General Counsel
in his closing argument contended "that the union-security provision of the contract
does not require auxiliaries to be members of the Union." There is no merit to this
contention.
The agreement in effect during all times relevant herein specifically requires that,
in order to obtain or maintain employment with the Company, all employees covered
by the agreement-regular, extra, and auxiliary-must become members, of the
Union within the time prescribed by the proviso to Section 8(a) (3) of the Act?
The mere fact that the organizational structure of the Union provided for a part-time
division or unit thereof is of no avail to the General Counsel. Section 8(b)(1)(A)
of the Act, the very section which he contends has been violated by the conduct
under consideration, contains the proviso "that this paragraph shall not impair the
right of a labor organization to prescribe its own rules with respect to the acquisition
or retention of membership therein." The same proviso, barring interference in the
internal affairs of the Union, also negates the contention of the General Counsel
that the union-security provisions of the collective-bargaining agreement are void
because, as the complaint alleges, auxiliary employees are ineligible for "regular"
membership in the Union.
Nor is it material to the resolution of the present problem that the dues of
regular and extra employees are paid through a valid checkoff system while auxiliary
employees pay their dues directly to the Union. The importance of this factor is that
all three categories are, by a valid contract provision, required to pay dues to the
Union in order to maintain their union membership and their jobs. The method of
payment has no significance.
Also without merit is the contention that the Union required and instructed the
Company, on and after June 25, 1959, "to refuse regular employment" to O'Dono-
hue because he "was not a regular member of the Union." 3 Instead, I find that the
Union's objection to the hiring of O'Donohue as a "regular" employee on and after
July 1 was motivated solely by its desire to enforce the provision of its collective-
bargaining agreement with the Company by which it was agreed that "auxiliary em-
ployees shall have no right or claim to promotion to the category of regular or
extra employees irrespective of any change in their availability."
Indeed, O'Sullivan, who had authority to hire, and who was a personal friend of,
and anxious to give, O'Donohue regular employment, realized immediately when
O'Donohue broached the subject to him on or about June 10 that the clause in the
collective-bargaining agreement stood as a barrier to his request. Thus, O'Sullivan,
according to his own testimony, at that time "pointed out to him that [the Company]
had a clause in the contract and asked him if he were familiar with it, and he said
yes." O'Sullivan then suggested that he "get clearance all around," i.e., a waiver
of the contract provision. On the entire record, it must be inferred and concluded
that O'Sullivan's reference to the "clause in the contract" could have reference only
to the provision making auxiliary employees ineligible for employment as regulars.
The Union was, of course, under no obligation to grant such clearance or waiver.
2 The collective-bargaining agreements between the Union and the Company, effective at
least since March 12, 1956, contain the following union security provision: "1. B. The em-
ployer agrees in the future not to employ or to retain in its employ any person . . . who
shall not be, or shall not become a member of the Union on and after thirty-one (31) days
from the date of hiring or from the effective date of this agreement, whichever is later"
3 O'Donohue was then a member of the Union, albeit of the part-time division thereof
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No attack is, or could be, made on the validity of the contract provision under
consideration. Admittedly, that provision interposes a block to the desire of
auxiliaries to become regular employees. But, because auxiliaries are thus being
injured, it does not follow that their statutory rights are thereby infringed. The
auxiliaries have no statutory right to become regular employees. They have only
the right, as any other applicant for employment, not to be "discriminated against"
within the specific meaning of that term as used in the Act. As the Supreme Court
made clear in Radio Officers' Union, etc. v. N.L.R.B., 347 U.S. 17, the Act does not
outlaw discrimination in employment as such, "only such discrimination as en-
courages or discourages membership in a labor organization is proscribed."
The Supreme Court has recognized and approved the existence of collective-
bargaining agreements which accord different rights and benefits to different classifica-
tions of employees. Thus, in Ford Motor Company v. Huffman, 345 U.S. 330, the
Court said:
Inevitably differences arise in the manner and degree to which the terms of any
negotiated agreement affect individual employees and classes of employees.
The mere existence of such differences does not make them invalid. The com-
plete satisfaction of all who are represented is hardly to be expected. A wide
range of reasonableness must be allowed a statutory bargaining representative
in serving the unit it represents, subject always to complete good faith and
honesty of purpose in the exercise of its discretion.
Compromises on a temporary basis, with a view to long-range advantages, are
natural incidents of negotiation. Differences in wages, hours and conditions of
employment reflect countless variables. Seniority rules governing promotions,
transfers, layoffs and similar matters may, in the first instance, revolve around
length of competent service. Variations acceptable in the discretion of bargain-
ing representatives, however, may well include differences based upon such
matters as the unit within which seniority is to be computed, the privileges
to which it shall relate, the nature of the work, the time at which it is done,
the fitness, ability or age of the employees, their family responsibilities, injuries
received in course of service, and time or labor devoted to related public
service ... .
Similar views were expressed by a court of appeals recently in N.L.R.B. v. Miranda
Fuel Co., 284 F. 2d 861 (C.A. 2), wherein the court stated: "Provisions for seniority
stated in a collective bargaining agreement and depending on objective criteria . . .
do not give improper authority to a union to encourage union membership or
discriminate against individual employees" in violation of the Act?
All this presupposes, as I must in the absence of any evidence to the contrary, that
the contractual provision pertaining to the prohibition against the right of auxiliaries
to achieve employment as regular employees gives effect to an honest and lawful
desire for the protection of the interests of both the Company and the Union.5
The burden rests on the General Counsel to establish by a preponderance of the
evidence that its purpose or effect was unlawful and this he has failed to do. No testi-
mony was offered to establish, or from which it could be inferred, that either the
purpose or effect of this provision was to encourage membership in the Union In-
deed, as has previously been found, O'Donohue was already a member of the Union.
Upon the basis of the foregoing findings of fact, I make the following:
CONCLUSIONS OF LAW
1. United States Trucking Corporation is engaged in commerce, and in activities
affecting commerce, within the meaning of Section 2(6) and (7) of the Act.
2. The Union has not engaged in unfair labor practices as alleged in the complaint.
RECOMMENDATION
I recommend that the complaint be dismissed in its entirety.
4 Of interest also, and to the same effect, though not binding on him, are the Administra-
tive Decisions of the General Counsel in Case No. 1014, 34 LRRM 1601, and Case No.
F-441, 42 LRAM 1360
6 The legitimate interests of both parties to the agreement which might be served by
the provision under consideration are suggested by General Counsel's Exhibit No. 11.