Miscellaneous Warehousemen, Etc., Local 986

National Labor Relations Board - Board Decisions

Feb 5, 1964

145 N.L.R.B. 1511 (N.L.R.B. 1964)

MISCELLANEOUS WAREHOUSEMEN, ETC., LOCAL 986 1511
Employees may communicate directly with the, Board's Regional office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Balti-
more 1-700, Extension 2732, if they have any question concerning this notice or
compliance with its provisions.
Miscellaneous Warehousemen , Drivers and Helpers, Local 986,
affiliated with International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America [Tak-Trak, Inc.]
and Mrs . Edwin Selvin , Labor Relations Consultant . Case No.
,1-CB-20446. February 5, 1961
DECISION AND ORDER
On August 5, 1963, Trial Examiner William E. Spencer issued his
Intermediate 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 attached Inter-
mediate Report. Thereafter, the Respondent and the Charging Party
each filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of 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 [Chairman McCulloch and Members
Leedom and Fanning].
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 In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
Our dissenting colleague would find that Respondent's threats and
picketing were solely in support of its contract demands, and would
reverse the Trial Examiner's conclusion that they were also aimed
at bringing about Selvin's ouster as the Company's bargaining agent.
In our view the Trial Examiner's conclusion is warranted by the
evidence, and we therefore adhere to it.
The Respondent's letter of February 14 not only outlined its policy
of opposition to "the usual antiunion program which Mrs. Selvin
espouses." It also stated that "the picketing by Teamster Local 986
will cease at such time as I am assured that your Company has aban-
doned the antiunion program on which it has embarked." Four days
later, a conference was held between Respondent's representative,
Riley, and Linsky, the president of LCS Corporation and also of the
Company here involved, with which LCS was affiliated. The Trial
145 NLRB No. 147.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner relates that Riley demanded a contract covering LCS em-
ployees, and continues :
Linsky referred him to LCS's labor consultant, Selvin. Then,
according to Linsky, Riley went into a tirade against Selvin, and
demanded that LCS sign a contract with Respondent immedi-
ately or get another consultant, stating that Respondent could
deal with other consultants but not with Selvin, and threatening
that it would picket LCS as it was then picketing Tak-Trak
[the Company] unless LCS acceded to one of its alternate de-
mands. Also during this meeting Respondent learned that LCS
was allied with Tak-Trak. Its picketing of LCS began a day
or two after Riley's statments to Linsky.
It is true that Riley denied that he demanded Selvin's removal.
But the Trial Examiner does not credit this denial, as he finds: "On
the entire evidence I am convinced and find that an object of Re-
spondent's picketing of Tak-Trak was to effect the removal of Selvin
as Tak-Trak's bargaining representative."
Without doubt, as our colleague finds, the Respondent had a further
,object: to secure a satisfactory bargaining agreement. The existence
of such a lawful object does not, however, preclude the concurrent
existence of an unlawful object, as the Trial Examiner found and we
agree. We shall, therefore, enter the order recommended by the Trial
Examiner.
ORDER
The Board adopts as its Order the Recommended Order 1 of the
Trial Examiner.
MEMBER FANNING, dissenting:
Respondent began picketing Tak-Trak on February 12, 1963, after
advising the vice president of the company that it deemed the picket-
ing necessary because it wanted a contract immediately with provisions
which the company's bargaining representative, Mrs. Edwin Selvin,
was adamantly opposed to, and because it realized eventually it would
come to this, i.e., eventually Respondent would have to picket or strike
to obtain such a contract. On February 14, 1963, during the course of
the representation hearing on its first petition," Respondent advised
Selvin, and through her, Tak-Trak, that it was willing to negotiate a
contract with Selvin then and there. Also on February 14, Respond-
1 The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , its officers , agents, representatives , successors , and assigns , shall:
8 Respondent withdrew that petition but filed another one on February 20, which re-
suited in the certification of Respon dent as representative of Tak -Trak's employees.
MISCELLANEOUS WAREHOUSEMEN, ETC., LOCAL 986 1513
ent sent a letter to Tak-Trak setting forth its opposition to Selvin's
antiunion philosophy, which it described in some detail, and Tak-
Trak's adoption of that philosophy. It restated its desire for a con-
tract on terms other than those which it knew from experience Selvin
would insist -upon, and stated that it believed that if Tak-Trak would
abandon its antiunion course of conduct a satisfactory contract could
be negotiated through "your chosen representative."
The Trial Examiner found, essentially on the basis of the above
facts,' that an object of Respondent's conduct was to obtain a satis-
factory bargaining agreement with Tak-Trak, but that another object
was to effect removal of Selvin as Tak-Trak's bargaining representa-
tive. My colleagues adopt these findings.
I disagree as to the second objective found. I find that Respondent
was doing no more than attempting, by means of the economic pres-
sures of a picket line, to force Tak-Trak, the bargaining principal,
into a realization of the costs of adopting the labor relations philoso-
phy of Selvin, and to cause it to instruct its bargaining agent to
negotiate within the framework of policies more acceptable to Re-
spondent. Indeed, I question whether the twin objectives found can
coexist side by side, for the one is entirely consistent with bargaining
in good faith, and the other amounts to no less than a refusal to bar-
gain. Obviously, if Respondent had first bargained to an impasse, and
then picketed to force Tak-Trak's acceptance of its contract demands,
which Selvin refused to grant, we would not construe such action as an
attempt to effect the removal of Selvin. Respondent was under no •
obligation to withhold such pressures prior to reaching an impasse,'
and, accordingly, its conduct, concededly in support of its contract de-
mands, does not stand in a different posture. This is especially true
where, as here, Tak-Trak was advised at all times that Respondent was
willing to negotiate a contract with Selvin, so long as the contract was
generally in accord with its philosophy rather than with Selvin's.
In view of the foregoing, I cannot find that Respondent was seek-
ing to effect Selvin's removal as Tak-Trak's bargaining agent. Ac-
cordingly, I find that Respondent's conduct herein did not violate Sec-
tion 8(b) (1) (B), and I would dismiss the complaint.
3 The Trial Examiner did not explicitly resolve a conflict in the testimony of Riley, Re--
spondent ' s business agent , and Linsky , president of Tak-Trak and of LCS Corporation, an
affiliate of Tak-Trak. Even accepting Linsky's version, however, the record will show-
only that Riley demanded that LCS get rid of Selvin as its bargaining representative.
Respondent thereafter withdrew any demand for recognition made to LCS , and informed
LCS that picketing of its plant would continue for the sole reason that LCS was an ally
of Tak-Trak This evidence is an insufficient basis ,for finding that Respondent was seeking
to effect removal of Selvin as Tak-Trak's bargaining representative
4 Though the institution of the picketing preceding Respondent 's certification, Respondent
offered to prove its majority status at the representation hearing on February 14. Because-
Respondent timely filed the necessary petition for an election , the provisions of Section
8(b) (7) (C) could not have been invoked to halt the picketing.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on February 14, 1963, by Mrs. Edwin Selvin, on
behalf of Tak-Trak, Inc., herein called Tak-Trak or the Company, the. General
Counsel of the National Labor Relations Board, the latter herein called the Board,
by the Regional Director for the Twenty-first Region, issued a complaint dated
April 5, 1963, against the Respondent herein, alleging that the Respondent engaged
in and was engaging in unfair labor practices within the meaning of Section 8(b)
(1)(B) and Section 2(6) and (7) of the National Labor Relations Act, as amended,
in that it picketed Tak-Trak and Tak-Trak's affiliates, LCS Corporation, d/b/a
Royal Sales and Manufacturing Company, and Royal Aluminum, herein jointly
called LCS, with an object of effecting the removal of Selvin as Tak-Trak's repre-
sentative for the purposes of collective bargaining or the adjustment of grievances.
Copies of the charge, the complaint, and notice of hearing were duly served upon
the Respondent and the Charging Party. In its duly filed answer the Respondent
denied the unfair labor practice allegations of the complaint. The hearing upon
the complaint, conducted by Trial Examiner William E. Spencer at Los Angeles,
California, on June 4, 1963, was participated in by all parties. Briefs have been
filed by the General Counsel and the Respondent.
Upon consideration of the entire record in the case and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Tak-Trak, a California corporation with its principal office and place of business
in City of Industry, California, is engaged in the manufacture of tackless carpet
stripping and related carpet accessories. During the year preceding issuance of the
complaint, in the course and conduct of its business, it shipped products valued in
excess of $50,000 directly to points outside California.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This case involves principally the picketing by the Respondent of the separate
premises of Tak-Trak, Inc, and its allies or affiliates i LCS Corporation, d/b/a
Royal Sales and Manufacturing Company and Royal Aluminum, herein called
LCS. There is no question that the picketing occuried. The issue is its object, the
allegation being that an objeot was to effect the removal of Mrs Edwin Selvin, a
labor relations consultant, as Tak-Trak's representative for purposes of collective
bargaining and/or the adjustment of grievances.
Picketing of Tak-Trak began on February 12, 1963, and on that date, according
to the undisputed and credited testimony of Jerome Kraut, the Company's vice
president, Michael Riley, and Lester Coombes, representing Respondent, called
on him in his office; Riley said that in view of Selvin's "attitude toward unions and
the fact that she would not sign a contract unless forced to and that she had never
granted a union shop and had never granted a grievance committee with arbitration,"
the Respondent felt picketing necessary since it "wanted a contract and wanted it
immediately and that it would eventually have to come to this anyway." Riley sug-
gested that Kraut "delve" into Selvin's relations with other companies and unions, and
referred to her as adamant in her feelings on unions and union shops and indifferent
to how much it cost a company to fight these things.
At the time these statements were made, the Respondent had not been certified
as bargaining representative of Tak-Trak's employees and had not submitted a con-
contract proposal. It had filed a representation petition affecting Tak-Trak's em-
ployees on January 28. On February 14, with the Regional Director's consent, it
withdrew this petition. On February 20 Respondent again filed a representation
petition affecting these employees, and pursuant to an election held on May 6 was
certified as representative of Tak-Trak's employees in an appropriate unit.
Under date of February 14, Respondent 'addressed a letter to Tak-Trak denying,
in effect, that an object of its picketing was to effect the removal of Selvin as
1 LCS owns 50 percent of the stock of Tak-Trak.
MISCELLANEOUS WAREHOUSEMEN, ETC., LOCAL 986 1515
negotiator. Apparently this letter was written after Tak-Trak through Selvin had
filed the charge which initiated this proceeding. The letter stated in substance:
It has been the settled policy of Teamster Unions in the Southern California
area for some time to picket the, premises of any employer who has adopted
the usual anti-union program which Mrs. Selvin espouses. That program
embraces a refusal to consent to an election when no issues arise which war-
rant a hearing before the National Labor Relations Board, speeches to em-
ployees in which statements are made to them that they will be replaced if
they go out on strike, and a willingness to talk to representatives of the union
providing it is certified only to the extent necessary to meet the barest mini-
mum requirements of the employer's obligation to bargain with ^a certified
union, while, at the same time, displaying a stubborn unwillingness to agree
to any form of union security, grievance and arbitration procedures, wage
increase and fringe benefits that have become more or less standard in the area.
It is my understanding that this was the program followed by your Com-
pany, with the assistance of Mrs. Selvin, when it defeated the desire of its em-
ployees in the past to be represented by the District Council of Painters No. 36.
Thus far, in the organizational efforts of Teamster Local 986, the pattern has
been repeated. Our picketing is in protest against that course of action. The
picketing would have taken place whether or not Mrs Selvin was the architect
of the policy.
Teamster Local 986 has already offered to meet and negotiate a contract with
Mrs. Selvin. She has refused to do so. Because of that refusal, and because
of other unfair labor practices which I understand have been engaged in by
certain of your supervisors, the Union is this day filing a charge with the
National Labor Relations Board alleging that your Company is again interfer-
ing with the right of its employees to organize, and that it is unlawfully refus-
ing to bargain collectively with the Union .2
It is our intention to request the General Counsel of the National Labor
Relations Board to prosecute representatives of your Company for contempt
of court in your failuie to comply with the decision of the Ninth Circuit Court
of Appeals.3
Please be informed that the picketing by Teamster Local 986 will cease at
such time as I am assured that your Company has abandoned the anti-union
program on which it has embarked. If you are willing to remedy these unfair
labor practices and furnish the Union with adequate assurances of a sincere
willingness to bargain in good faith until a contract is reached, the Union will
be more than happy to remove its picket line. In the light, however, of the
Company's previous record of substantial and serious unfair labor practices,
and its adoption of the anti-union program usually espoused by Mrs. Selvin,
the most persuasive evidence of a reversal of position would be the signing
of a satisfactory collective bargaining agreement.
We trust that you can see your way clear to abandoning a course of conduct
which has led your Company and many other employers represented by Mrs.
Selvin to strikes and picketing lasting over many months or years and that a
satisfactory collective bargaining agreement can be reached in the near future
with you, or through your chosen representative.
On February 18, Riley had a conversation with Morris Linsky, president of
Tak-Trak and LCS Linsky testified that Riley said the Respondent represented a
majority of LCS employees and asked him to execute a bargaining contract. Linsky
referred him to LCS's labor consultant, Selvin. Then, according to Linsky. Riley
went into a tirade against Selvin, and demanded that LCS sign a contract with Re-
spondent immediately or get another consultant, stating that Respondent could deal
with other consultants but not with Selvin, and threatening that it would picket LCS
as it was then picketing Tak-Trak unless LCS acceded to one of its alternate demands.
Also during this meeting Respondent learned that LCS was allied with Tak-Trak.
Its picketing of LCS began a day or two after Riley's statements to Linsky Under
date of February 21, Respondent addressed a telegram to LCS, signed by Respond-
ent's secretary, which stated
It has just come to my attention that agents of this union demanded recogni-
tion for certain of your employees. This demand for recognition was not
authorized by the undersigned and is withdrawn
2 This charge was dismissed by the Regional Director
8 See N L R B v. Talc Trab, Inc, 293 F 2d 270 (iC A. 9), enfg . 128 NLRB 876
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The picketing of your plant was begun and will continue for the sole reason
that you have allied yourself with Tak-Trak.
Riley admitted that he met with Linsky on February 18 under the circumstances,
testified to by Linsky, but denied that he demanded Selvin's removal as LCS' labor
consultant or threatened to picket LCS if she was not removed. He testified that
his statements to Linsky were consonant with the statements contained in Respondent's
February 14 letter to Tak-Trak.
At a Board hearing on the Union's representation petition of January 28, held on
February 14, the Union's representative, in the presence of Selvin who represented
Tak-Trak in that proceeding, stated: "It is certainly the union's position that it is
willing to deal with Mrs. Selvin , as a matter of fact, it is willing to deal with her
right now in this hearing room, and we will offer on the record at this time to make
available to Mrs. Selvin at the present time, for her inspection and checking, the
authorization cards secured by the union, with the request that in the event that she
finds that we have a majority signed up on those authorization cards, that the Com-
pany accord the union recognition and bargain with them. We are willing, as soon
as that is finished , to sit down and bargain with Mrs. Selvin until a contract is
finally reached."
Selvin refused , on Respondent's behalf, to inspect the Respondent 's authorization
cards, or to enter into a consent -election agreement . Thereupon the Respondent re-
quested permission to withdraw its representation petition and, as previously stated,
permission was granted.
Picketing of Tak-Trak and LCS was continuous from the date it was instituted and
was continuing at the time of the hearing herein.
On the entire evidence I am convinced and find that an object of Respondent's
picketing of both LCS and Tak-Trak was to effect the removal of Selvin as Tak-Trak's
bargaining representative . This was not its sole object throughout the period of the
picketing. A further object was to obtain a satisfactory bargaining agreement with
Tak-Trak. As will be seen, on the facts of this case, there is hardly more than a
technical distinction between the two objects but sufficient, perhaps, to create a
legal issue.
Under the Act, a labor organization may not restrain or coerce an employer "in
the selection of his representatives for the purpose of collective bargaining or the
adjustment of grievances ." "Representative ," in this context , receives no further
definition in the Act , and needs none , but what constitutes collective bargaining within
the meaning of the Act has received definition in hundreds of decisions by the Board
and the courts. An employer who designates a representative not for the purpose
of collective bargaining as that term has been defined in the decisions, but for the
purpose of thwarting and obstructing the bargaining process, can hardly be said to
have designated such a person as its representative for the purpose of collective bar-
gaining. A person whose philosophy, history of action in the labor relations field,
and record of refusals to bargain on such mandatory topics of bargaining as union
security , arbitration of grievances , seniority , and merit wage increases, discloses a
mind unalterably closed to bona fide bargaining, is not, in my opinion, a "representa-
tive for the purposes of collective bargaining," within the meaning of the Act. The
Respondent has good reason to believe that Selvin is such a person.
She has followed a career of espousing the open shop and attacking every form
of union security as well as other commonly accepted goals of union organization
for a period of some 25 years and the said espousal has been open and notorious.
While not a lawyer, for many years now she has represented numerous employers in
their relations with labor organizations. Unfortunately, when she transferred and
channeled her activities as labor relations counselor into the field of collective bar-
gaining as an employer representative, she brought her privately held and publicly
expressed views, to which she indubitably was entitled, to bear upon and restrict her
duties as a negotiator to a degree that she was unable, or unwilling as the case may
be, to bargain in good faith on certain mandatory topics of collective bargaining.
These are matters of which I take official notice, being incorporated as they are in
several Board decisions , to which I shall now briefly refer.
In the earliest of these cases to come to my attention, she was quite frank about
her attitude in the matter Duro Fittings Company, 121 NLRB 377. Her testi-
mony on an initial bargaining conference with the representative of a labor organiza-
tion with whom she was required to bargain, is illustrative of her concept of what
constitutes collective bargaining:
Mr. Sosso [the labor representative] made a valiant effort to convert me to
the theory that a union shop was a proper matter for us to agree to and I think
I probably worked just as hard to convince Mr. Sosso it was not in our opinion
MISCELLANEOUS WAREHOUSEMEN, ETC., LOCAL 986 1517
anything to which we would agree, but I did tell them most emphatically be-
fore the day was over that we would not ever agree to a contract nor would
we ever sign a contract that ... had my [sic] union shop provision. That the
only thing we would agree to would be an open shop such as we had counter-
proposed to their union shop proposal. . .
I expressed more than our views, I stated we would not enter into any agree-
ment that contained a union shop agreement requiring membership in the union
as a condition of employment. I did state that was a conviction that was deeply
imbedded and I think I did say that it was the reason why I engaged in labor
relations work; that I had felt so deeply on the subject of the liberty of an in-
dividual with respect to union membership and I also recall that I did say to
Mr. Sosso that no employer ever was interested in employing me unless he held
,a similar view and that the only employers and the only people from whom I ac-
,cepted employment were people who held the view that compulsory member-
ship in a union was not a proper course and refused to grant such conditions.
[Emphasis supplied.]
Question by Sosso: You knew you were opposed to all forms of union
security whatever it was, is that right?
Answer by Selvin: That is an open secret, everybody in town that knows
me knows that.
In the same case Selvin expressed and rested on the view that merit increases
lay solely in the domain of the employer's prerogative, although this matter, too,
had long before been decided to the contrary by the Board and the courts.
In the decision in a second case, some 2 years later, involving this same employer,
and the same labor organization, it was stated: "Selvin's approach to collective
bargaining was not to confer in good faith but rather constituted an effort to subvert
the Union's position as bargaining representative and to oust it from all participa-
tion in matters involving the employees, these even including wages and grievances,
and then to turn around and unilaterally grant merit wage increases. . Re-
spondent uniformly rejected any changes in working conditions of any substance,
and those matters that it did not reject it attempted to relegate to its own control
by the device of the management prerogative clause. Moreover, as demonstrated,
Respondent's approach to collective bargaining was soon followed by its concept
of collective bargaining in the form of the unilateral grant of merit increases. I
am convinced that there has been no change in Respondent's position from the
earlier case wherein the Board condemned a well-nigh identical approach to col-
lective bargaining." Duro Fittings Company, 130 NLRB 653.
In a third case of unlawful refusal to bargain by an employer represented by
Selvin, decided some 2 years after the first Duro case (California Girl, Inc., X129
NLRB 209), the situation is almost indistinguishable from the Duro cases, except
for Selvin's admission that while there had been no change in her "philosophy"
on labor organizations she would now do what she had previously stated she would
not do-represent employers who had contracts containing union-security provi-
sions. "Further examination disclosed," this decision reads, "that she had on no
occasion negotiated, in the first instance, a contract containing union-security pro-
visions, and on one occasion when a client-employer bypassed her and executed
such a contract she resigned as his negotiator. She did represent this same client at
a later date and in the renegotiation or renewal of contracts containing union-
security provisions which she did not negotiate in the first instance, she has rep-
resented employer clientele."
Evidence taken in the present hearing is entirely consonant, on her role as
employer-negotiator, with the findings made in the three cases cited above in which
her employer-clients were found unlawfully to have refused to bargain. Although
a vast majority of representation cases in which the appropriate unit is agreed
upon are settled expeditiously through consent elections, Selvin admitted that in
such cases she seldom entered into a consent agreement on behalf of her employer-
client, and only when there existed what she described as "special circumstances."
She testified that the reason for her refusal was the very brief interval that cus-
tomarily ensued between such an agreement and the election, and she was very busy!
I think we can infer from our experience with Selvin in prior cases that another
and more compelling reason was that she wanted sufficient time to exert in full her
persuasive powers on the employees involved in an effort to induce them to vote
against union representation, an effort which in the first Duro case exceeded per-
missible bounds when she informed the employees involved in that case that union
security and, in effect, merit wage increases, were not bargainable matters, and
warned them that in the event of strike they would be replaced and would thereby
lose their jobs, not mentioning, of course, their rights as unfair labor practice strikers.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Selvin was unable, or unwilling, to estimate the percentage of cases in which she
served as an employer negotiator where agreement on a contract was reached,
but I think we can assume that if this were true in a majority of cases she would
readily have said so. Here, certified unions at both Tak-Trak and LCS, facing
Selvin as the employer negotiator, after more than a year have been unable to con-
clude bargaining agreements, and it was the testimony of Sam Schwartz, representa-
tive of an affiliate of 'the International Ladies' Garment Workers Union, that though
his union won 'a majority of some 20 representation elections, as the union's negotia-
tor with Selvin representing the respective employers, he was 'able to obtain an agree-
ment in only 4 cases, 1 of which resulted only after the Board's order in California
Girl, supra. On the national scene, it has been estimated that the percentage of cases
in which bargaining agreements are arrived at by certified unions and employers
varies from 92 percent in the Atlanta region to 84 percent in the Pittsburgh and
Boston 'areas. McCulloch, A Tale of Two Cities: Or Law an Action, 1962 Proceed-
ings, ABA, Section of Labor Relations Law 16-17.4
When the effectiveness of the Act in promoting economic stability depends in
large degree on the execution of bargaining agreements, and there is no evidence
that labor organizations are any more unreasonable in their demands on Selvin than
on other employer negotiators with a record of a high percentage of agreements, we
may properly take cognizance of the role she has played these many years vas-a-vis
the labor organizations which have been chosen to represent the employees of her
employer-clients. "The basic concepts underlying the Labor Management Relations
Act call for utilization of joint efforts ^at the bargaining table as a substitute for labor
strife." Fibreboard Paper Products Corp. v. N.L.R.B., 322 F. 2d 411 (C.A.D.C.).
"Enforcement of the obligation to bargain collectively is crucial to the statutory
scheme. And, as has long been recognized, performance of the duty to bargain
requires more than a willingness to enter into a sterile discussion of union-manage-
ment differences." N.L.R.B. v. American National Insurance Co., 343 U.S 395
No one-least of all this Trial Examiner-would deny Selvin her locus poemtentiae,
and she assures me that since the decision in Duro-presumably she means the
second Duro decision-she has bargained on such topics, previously excluded from
her individual category of the nonbargainable, as the union shop, but such verbal
assurances, lacking documentation, and very much the same as proffered this Trial
Examiner in the American Girl case, are, I am afraid, not very persuasive True, as
she testified, with some show of pride, many charges of refusal to bargain based on
her conduct as a negotiator have been filed, and few have resulted in the issuance of a
complaint I can only say that whereas good faith in bargaining is a state of mind,
and its detection is largely dependent on overt acts and statements, lipservice is
frequently indistinguishable, by objective tests, from the genuine article, and it
would be strange indeed if Selvin, after three adverse decisions against employers
she represented, learned nothing about preserving all the outward appearances of
bargaining. Labor organizations required to deal with her in her capacity as
negotiator, lacking the objective tests to substantiate their charges of a refusal to
bargain, necessarily resort to self-help in the form of strikes, picketing, etc , in order
to obtain reasonably satisfactory bargaining agreements.
The situation is such that picketing for a contract becomes almost indistinguishable
from picketing for the removal or replacement of Selvin as a negotiator. This is well
illustrated in Respondent's February 14 letter to Tak-Trak. Nevertheless, it is on
such a distinction that the complaint in this case rests, and though the results of such
a proceeding may be negligible, or actually harmful to the cause of bona fide bargain-
ing, I must find that technically, at least, the Respondent in picketing for Selvin's
removal violated Section 8 (b) (1) (B) of the Act.5 This finding rests on the fact
4 To forestall discursive argument, I state the obvious' The law does not require agree-
ment on a contract : it is written in the expectation that contractual agreements will fre-
quently he the end results of bona fide bargaining as indeed is the case The law does
not require the execution of consent-election agreements, even though there is no issue
with respect to an appropriate unit; in practice such agreements have greatly facilitated
the resolution of representation issues, and thus have contributed substantially to the
settlement of labor disputes through the processes of collective 'bargaining And, finally
nowhere in this report am I talking about "hard bargaining" which, of course. is both
usual and permissible
'In reliance on the rejection by the Supreme Court of the Board's "Curtis doctrine"
(NLRB. v Drv cis, Chaisifeurs and helpers Local Union No 679, International Brother-
hood of Teamsters, etc , 302 U S 274, 290), Respondent argues that inasmuch as its picket-
ing was at all tunes peaceful, it exerted no restraint or coercion within the meaning of
Section 8(b) (1) (B) Heie, however, unlike in the Curtis doctrine cases which related to
the employees of the employer picketed, the impact of the picketing was direct and iniineda-
ate and by no means suppositional
MISCELLANEOUS WAREHOUSEMEN, ETC., LOCAL 986 , 1519
that the coercion runs not against Selvin but against her employer, and while her
reputation in the vicinity of hei residence and in the field of labor relations is so
notorious that one may well question whether any employer desirous of establishing
a mutually satisfactory bargaining relationship with his employees' representative
would designate her as his negotiator, it may be assuming too much to say, without
more evidence than is present here, that this employer hired her not as his rep-
resentative for purposes of collective bargaining but for purposes of obstructing
the bargaining process In any event, I would be barred from reaching a contrary
conclusion by the precedent established by the Board in Helen Rose Co., Inc., 127
NLRB 1543.6 Except for that precedent, which I respect, regarding this case as
sui generis, I would incline to the view that there is no substantial distinguishing
factor in picketing for the removal of Selvin as negotiator and picketing for a
contract, such as to constitute a violation of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Employer described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and such of them as have been found to be unfair labor practices, tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent picketed Tak-Trak and LCS with an object
of requiring Selvin's removal as negotiator for Tak-Trak, I shall recommend that
Respondent cease and desist from picketing these employers, or engaging in other
conduct for accomplishing The proscribed object In my opinion, on the facts of
this case a broader cease-and-desist order is not required since there is no evidence
tendmg to show that there is a potential threat that this Respondent will engage in
the proscribed conduct with respect to employers generally. The General Counsel
suggested at the hearing, but did not renew the suggestion in his brief, that an
appropriate remedy would be to require the Respondent to cease and desist from
all picketing of these employers for a stated period. In my view such a restriction
would be neither appropriate nor lawful. The General Counsel has further sug-
gested that Respondent be required to notify Tak-Trak and LCS, and send a copy
of said notification to Selvin, that it has no objection to the retention of Selvin as
Tak-Trak's negotiator. I am sure the General Counsel would not have me employ
legal compulsion to accomplish perjury, though to adopt this suggestion for a remedy
:would be to require Respondent to tell a palpable lie. Ample grounds exist for
Respondent's objecting to Selvin as a negotiator, and it has every right to object
to her retention in that capacity so long as its objections do not take the form of
conduct proscribed by the Act The most that could be required of it would be
a statement that it would not object to Selvin's retention in an unlawful manner,7
a repetition of the cease-and-desist order recommended above, and would negotiate
with Selvin as Tak-Trak's bargaining representative, an obvious redundancy, since
to refuse to would be to object ,to her retention in an unlawful manner. Respondent
has already advised Selvin, and Tak-Trak through Selvin, in the open hearing on
its first representation petition, that it is willing to negotiate a contract with her. I
see no need for a further remedial order than that stated above.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Tak-Trak is an Employer within the meaning of Section 2(2) of the Act, en-
gaged in commerce within the meaning of Section 2(6) and (7) of the Act.
O In view of this ultimate conclusion herein, it may appear that a recitation of Selvin's
bargaining history is irrelevant and therefore gratuitous, but to omit such references
would have been to prejudice the Respondent's position on the point that* Selvin's reputa-
tion is such and so notorious that no employer in the Los Angeles area would designate hei
his representative for purposes of bona fide collective bargaining, and therefore picketing
for her removal was not picketing for the removal of a "representative for purposes of
collective bargaining," as that term is properly construed The argument, I feel, commands
respectful attention.
7 Cf. orders on interrogation of employees by employers.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
3. By picketing the premises of Tak-Trak and LCS with an object of restraining
and coercing Tak-Trak in its selection of Selvin as its representative for purposes
of collective bargaining and the settlement of grievances , the Respondent has en-
gaged in unfair labor practices within the meaning of Section 8 (b) (1) (B) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon ,the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that the Respondent , its officers , agents, representatives , successors,
and assigns , shall:
1. Cease and desist from:
(a) Picketing Tak-Trak and LCS with an object of effecting Selvin's removal as
Tak-Trak's representative for purposes of collective bargaining and the settlement
of grievances.
(b) In any other manner restraining or coercing Tak-Trak in the selection of
representatives for purposes of collective bargaining and the settlement of grievances.
2. Take the following affirmative action required to effectuate the policies of the
Act:
(a) Post at its business office and all other places where notices to members are
customarily posted, copies of the attached notice marked "Appendix." 8 Copies of
said notice, to be furnished by the Regional Director of the Twenty-first Region,
Los Angeles, California, shall, after being duly signed by Respondent's representa-
tive or agent, be posted immediately upon receipt thereof and be maintained for
60 consecutive days thereafter . Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Twenty-first Region signed copies of
the aforementioned notice for posting at the premises of Tak-Trak and LCS, at the
discretion of these Employers, for 60 consecutive days in places where notices to
employees are customarily posted. Copies of said notice shall be furnished by the
aforesaid Regional Director.
(c) Notify the Regional Director for the Twenty-first Region, in writing, within
20 days from the date of this Intermediate Report and Recommended Order, what
steps the Respondent has taken to comply herewith.9
e In the event 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."
9 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director , In writing, within 10 days from
the receipt of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF MISCELLANEOUS WAREHOUSEMEN, DRIVERS &
HELPERS, LOCAL 986, AFFILIATED WITH THE 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 you that:
WE WILL NOT picket or strike the premises of Tak-Trak, Inc., Royal Alumi-
num, or LCS Corporation, d/b/a Royal Sales & Manufacturing Company, to
procure the removal of Tak-Trak's representative for the purposes of collective
bargaining and we will not in any other manner restrain or coerce that Employer
BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN 1521
in the selection of representatives for the purpose of collective bargaining or
the adjustment of grievances.
MISCELLANEOUS WAREHOUSEMEN , DRIVERS, &
HELPERS, LOCAL 986, AFFILIATED WITH THE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA,
Labor Organization.
Dated------------------- By---------------------------------- --------(Representative) (Ti tle)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles 14, California, Telephone No. 688-5204, if they have any
question concerning this notice or compliance with its provisions.
Brotherhood of Locomotive Firemen and Enginemen and Grand
Lodge Employees ' Association . Case No. 8-RM-320. Febru-
ary 5, 1964 DECISION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Bernard
Levine. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.'
1 The Brotherhood , the Employer herein, urges that the National Labor Relations Board
has exclusive jurisdiction in this proceeding , and the Union does not contest the Board's
jurisdiction. The considerations appropriate to other employers under the Act apply to a
labor union when it is acting in the capacity of an employer. Office Employees Inter-
national Union , Local 11 v. N.L.R.B., 353 U.S. 313, 316 ; American Federation of Labor,
120 NLRB 969 , 970. See Section 2(2) of the National Labor Relations Act.
The application of the National Labor Relations Act to the Employer herein with respect
to its employees is not precluded by the fact that as a labor organization the Employer's
membership is employed by employers subject to the Railway Labor Act . Section 2(2) of
the National Labor Relations Act states that "[t]he term `employer' . . . shall not in-
elude any person subject to the Railway Labor Act . . . .' The term "employer" does not
appear and is not defined in the Railway Labor Act , but the term "carrier" is used in its
place. A "carrier" Is defined in section 1, first, as "any express company , sleeping car
company, carrier by railroad . . . and any company . . . which operates any equipment
or facilities or performs any service . . . in connection with the transportation , receipt,
delivery, elevation , transfer in transit , refrigeration or icing, storage , and handling of prop-
erty transported by railroad .. . . " Title II of that act extends its coverage to carriers
by air. Patently , the Employer in its relations to its employees herein is not "an employer
subject to the Railway Labor Act."
Section 2(3) of the National Labor Relations Act states that the "term ` employee'.
shall not include . . . any individual employed by an employer subject to the Railway
Labor Act . .. .. The employees Involved are employed and have their remuneration and
other working conditions determined by the Brotherhood. The Board has been administra-
tively advised by both the National Mediation Board and the National Railroad Adjustment
Board that neither has jurisdiction herein because the Brotherhood and its employees do
not qualify as a carrier or as employees of a carrier , respectively , under the Railway Labor
Act. Thus, since the Railway Labor Act Is only applicable to carriers and employees of
carriers , and does not regulate labor unions and their employees as such, it Is clear that
the National Labor Relations Board has jurisdiction over the parties to this proceeding.
Gf. Air Line Pilots Association, 97 NLRB 929 ; Bradley Flying Service, Inc., 131 NLRB 437.
145 NLRB No. 143.
734-070-64-vol. 145-97