Cushman Motor Delivery Co.

National Labor Relations Board - Board DecisionsFeb 5, 1965

150 N.L.R.B. 1588 (N.L.R.B. 1965)

1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Recommended Order omitted from publication.] Cushman Motor Delivery Company and Walter E. Flack Local 710, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Walter E. Flack. Cases Nos. 13-CA-4543 and 13-CB-1140-2. February 5, 1965 SUPPLEMENTAL DECISION AND ORDER On March 6, 1963, the Board issued a Decision and Order 1 finding, contrary to the Trial Examiner, that Respondent Local 710 had not caused Respondent Cushman to discharge Walter E. Flack, the Charging Party, in violation of Section 8(b) (1) (A) and (2) an d Section 8(a) (1) and (3) of the Act. The Board therefore dismissed the consolidated complaint. Flack then petitioned the Court of Appeals for the Seventh Circuit to review and set aside the Board's Order. On November 7, 1963, the court issued its decision,2 reversing the Board and finding, as had the Trial Examiner, that Respondents had violated the Act as alleged. In remanding the case, the court stated : We conceive it to be within the special province of the Board to formulate the order to be entered and the notice to be posted. We suggest, however, that the order suggested by the Trial Examiner would seem to be appropriate. On November 22, 1963, the Respondents filed a motion requesting the court to withdraw its opinion and judgment, to issue a citation bringing them in as parties respondent; or, in the alternative, to grant them intervention, to receive their brief, and to set the case down for oral argument. On December 12, 1963, the court entered- an order denying Respondents' motion in all respects, except to receive their brief. ' Respondents then filed a motion with the Supreme Court of the United States requesting a writ of mandamus to reverse the order of the circuit court denying their motion, made after judgment had been entered, to make them parties, or to permit them to intervene in the review proceeding initiated by Flack. On March 23, 1964, the Supreme Court denied Respondents' motion [376 U.S. 948]. Thereafter, the Respondents filed with the Board a statement of position opposing reinstatement and backpay, and the General Coun- sel filed an opposition thereto. The Respondents then filed a reply to the General Counsel's opposition. Pursuant to the remand, and upon reconsideration of the entire case , we 3 hereby set aside our previous Decision and Order in this 1141 NLRB 146 2 Walter E. Flack ( Cushman Motor Delivery Company ) v. N.L.R.B., 327 F. 2d 396 C.A. 7). 3 Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Members Fanning , Brown, and Jenkins]. 150 NLRB No. 154. CUSHMAN MOTOR DELIVERY COMPANY - 1589 proceeding (141 NLRB 146) and hereby adopt the Trial Examiner's findings, conclusions , and recommendations as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order , the Order recommended by the Trial Examiner, and orders that Respondent Cushman Motor Delivery Company, its officers, agents, successors , and assigns , and Respondent Local 710 , Interna- tional Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, its officers, agents , and representatives , shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications : 1. Add to paragraphs A 2 (a) and B 2 (b) the following : "Interest at the rate of 6 percent per annum shall be added to the backpay to be computed in the manner set forth in Isis Plumbing d Heating Co., 138 NLRB 716." 2. Add the following as paragraph A 2 (c) and renumber the follow- ing paragraphs of subparagraph 2 accordingly : "(c) Notify the above-named employee, if presently serving in the Armed Forces of the United States, that it withdraws all objections to his employment and requests the Cushman Motor Delivery Com- pany to offer him reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." Add the following as paragraph B 2 (b) and renumber the follow- ing paragraphs of subparagraph 2 accordingly : "Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective â€¢ Service Act and the Universal Military Training and Service Act of 1948 , as amended, after discharge from the Armed Forces." 3. Immediately below the signature line in Appendix A, insert,the following : - NoTE.-We will ' notify the' above-named employee if presently serving in the Armed Forces of the United States that we have withdrawn our objection to his employment and that we have no objection to his reinstatement and employment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended, after discharge from the Armed Forces. Immediately below the signature line in Appendix B, insert the following : - NoTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance, with the 1589a DECISIONS OF NATIONAL LABOR RELATIONS BOARD Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 4. The first sentence below the signature line in Appendix A and Appendix B is amended to read : "This notice must remain posted for 60 consecutive days from the date of posting. . . 5. The address of Region 13 given in Appendixes A and B attached to the Trial Examiner's Intermediate Report is amended to read : "219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572." [Trial Examiner's Recommended Order which was not published in volume 141 is printed below.] VI. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that: A. Local 710, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, its agents , officers, representatives , and assigns , shall: 1. Cease and desist from: (a) Causing or attempting to cause Cushman Motor Delivery Company to dis- criminate against Walter Flack or any other employee in violation of Section 8 (a) (3) of the Act. (b) In any other manner restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Make Walter Flack whole for any loss of earnings he may have suffered be- cause of the discrimination against him, in the manner set forth in the section of this, report entitled "The Remedy." (b) Notify Cushman Motor Delivery Company immediately , in writing, that it has no objection to the reinstatement of Flack, and request Cushman Motor Delivery Company to offer Flack immediate and full reinstatement to his former or substan- tially equivalent position , and simultaneously serve a copy of such notice and request upon Flack. (c) Post at its offices and meeting halls in Chicago, Illinois, copies of the attached notice marked "Appendix A." Copies of such notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by an authorized representative of the Respondent Union, be posted immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to its members are customarily posted. Reason- able steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Promptly mail to said Regional Director signed copies of Appendix A for posting, at the premises of the Respondent Company in Chicago, Illinois, and , if they be willing, at the premises of the Clairmont Transfer Company and the Scherer Freight Company, in Chicago , Illinois. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of the receipt of this report, as to what steps the Respondent Union has taken to comply herewith. B. That Cushman Motor Delivery Company, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging concerted activities on behalf of the Rebel Teamsters Union, or any other labor organization , by discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner, interfering with, restraining , or coercing its, employees in the exercise of their right to self-organization , to form, join, or assist the above- named Union , or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for CUSHMAN MOTOR DELIVERY COMPANY 1589b the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right is affected by the provisos in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Offer to Walter Flack immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make whole said employee, in the manner set forth in the section of this report entitled "The Remedy," for any loss of pay he may have suffered by reason of the Respondent Company's discrimination against him. (c) Preserve and, upon request, make available to the Board, or its agents, for examination or copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (d) Post at its terminal in Chicago, Illinois, copies of the attached notice, marked "Appendix B." 22 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by the Respondent's representative, be posted by the Respondent Company immediately upon receipt thereof, and main- tained by it for a period of at least 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent Company to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of receipt of this report, what steps the Respondent Company has taken to comply herewith 23 22 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a' Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order" The foregoing instructions apply to Appendix A, also .a In the event that this Recommended Order be adopted by the Board, this provision and the language of paragraph- A 1(e), above, shall be modified to read â€¢ "Notify said Regional, Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewth." APPENDIX - A NOTICE TO ALL MEMBERS OF LOCAL 710, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT cause or attempt to cause Cushman Motor Delivery Company to discriminate against Walter E. Flack or any other employee, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the ex- ercise of the rights guaranteed by Section 7 of the aforenamed Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of that Act. WE WILL make Walter E. Flack whole, jointly and severally with Cushman Motor Delivery Company, for any loss of pay he may have suffered as a result of the discrimination against him. WE WILL notify Cushman Motor Delivery Company that we have no objec- tion to the employment of Walter E. Flack, and WE WILL request Cushman Motor Delivery Company to offer him immediate and full reinstatement in his former or substantially equivalent position, and will serve him with a copy of such notice and request. LOCAL 710, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (lsepreseutative) (Title) 1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT discriminate against our employees because of their concerted activities on behalf of the Rebel Teamsters Union or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form, join, or. assist the Rebel Teamsters Union or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8(a)(3) of the Act. WE WILL offer Walter E. Flack immediate and full reinstatement to his former or substantially equivalent position, and make him whole for any loss of pay suffered by reason of the discrimination against him. All of our employees are free to become, remain, or refrain from becoming or remaining members of the Rebel Teamsters Union or any other labor organization. CUSHMAN MOTOR DELIVERY 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. Employees may communicate directly with the Board's Regional Office, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. Los Angeles Building & Construction Trades Council ; i Laborers and Hod Carriers Local No. 802, AFL-CIO; 2 Carpenters Local Union No. 1478 , AFL-CIO ; 3 and District Council of Painters No. 36, AFL-CIO 4 [ Portofino Marina ] and Jones and Jones, Inc. Case No. 21-CC-699. February 8, 1965 DECISION AND ORDER On August 31, 1964, Trial Examiner James T. Barker issued his Decision in the above-entitled proceeding, finding that all the above- named Respondents had engaged in certain unfair labor practices 1 Hereinafter called Council. 2 Hereinafter called Laborers. 8 Hereinafter called Carpenters. 4 Hereinafter called Painters. 150 NLRB No. 152.