North East Texas Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Sep 3, 1954

109 N.L.R.B. 1147 (N.L.R.B. 1954)

NORTH EAST TEXAS MOTOR LINES, INC. 1147
As we have found that the challenges to 8 ballots excepted to by the
Employer should be sustained, we find it unnecessary to pass upon the
remaining 17 challenges also contested by the Employer. The latter
17 ballots plus the 11 challenges recommended to be overruled by the
Regional Director (concerning which, in view of our decision, no
exceptions are before us) are insufficient to affect the results of tie
election. Accordingly, as the Petitioner secured a majority of, the
valid votes cast, we shall, as recommended by the Regional Director,
certify the Petitioner as the bargaining representative of the,em-
ployees in the appropriate unit.
[The Board certified International Union of Electrical, Radio and
Machine Workers, CIO, as the designated collective-bargaining repre-
sentative of the employees of the Employer, in the unit found appro-
priate in the Decision and Direction of Election herein.]
MEMBERS MURDOCK and RODGERS took no part in the consideration
of the above Supplemental Decision and Certification of Repre-
sentatives.
NORTH EAST TEXAS MOTOR LINES, INC. and RALPH G. DONLEY and
DALLAS GENERAL DRIVERS, WAREHOUSEMEN , AND HELPERS, LOCAL
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PARTY TO
THE CONTRACT
NORTH EAST TEXAS MOTOR LINES, INC. and M. D. O'NEAL and
DALLAS GENERAL DRIVERS, WAREHOUSEMEN , AND HELPERS, LOCAL
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PARTY TO
THE CONTRACT ,
NORTH EAST TEXAS MOTOR LINES, INC. and V. J. EISELE and
DALLAS GENERAL DRIVERS, WAREHOUSEMEN, AND HELPERS, LOCAL,
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CI3AUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PARTY TO
THE CONTRACT
NORTH EAST TEXAS MOTOR LINES, INC. and CHARLES M. GRIMES and
DALLAS GENERAL DRIVERS, WAREHOUSEMEN, AND HELPERS, LOCAL
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PARTY TO
THE CONTRACT
DALLAS GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS , LOCAL
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUIs'-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and RALPH
G. DONLEY and NORTH EAST TEXAS MOTOR LINES, INC., PARS W
THE CONTRACT
109 NLRB No. 171.
^ 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DALLAS GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
* FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and M. D.
O?NEAL and NORTH EAST TEXAS MOTOR LINES, INC., PARTY TO THE
CONTRACT
DALLAS GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and V. J.
EISELE and NORTH EAST TEXAS MOTOR LINES , INC., PARTY TO THE
CONTRACT
DALLAS GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL
UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and
CHARLES M. GRIMES and NORTH EAST TEXAS MOTOR LINES, INC.,
PARTY TO THE CONTRACT. Cases Nos, 16-CA-714, 16-CA-715,
16-CA-716, 16-CA-717, 16-CB-58, 16-CB-59, 16-CB-60, and
16-CB-61. September 3, 1954
Decision and Order
I' On May 12, 1954, Trial Examiner Lloyd Buchanan issued his In-
termediate Report in the above-entitled consolidated proceeding, find-
ing that the Respondents, North East Texas Motor Lines, Inc., herein
called the Respondent Company, and Dallas General Drivers, Ware-
housemen , and Helpers, Local Union 745, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL, herein called the Respondent Union, had engaged in and were
engaging in certain unfair labor practices and recommending that
they cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent Union and the General Counsel filed ex-
ceptions to the Intermediate Report and supporting briefs. The Re-
spondent Union also requested oral argume;lt. This request is hereby
denied because, in our opinion, the record,' the exceptions, and the
-briefs 2 adequately present the issues and the positions of the parties..,
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed 3 The
I The Respondent Unioii moved to supplement the record with a letter it addressed to the
General Counsel, dated January 28, 1954, which relates to the tolling of the payment of back
pay recommended by the Trial Examiner . The motion is hereby denied because the letter
is not material to this -proceeding and is not a proper supplement to the record.
8 The Respondent Union requested leave to file a reply brief in answer to the General
Counsel's exceptions and brief. As the Union has failed to give sufficient reason for grant-
ing such special leave, its request is hereby denied.
8 The Respondent Union excepted to admission in the record of the testimony of witness
Emerson, on the ground that his testimony related to a "visit to the office of an attorney
for respondent Union [which ] was to discuss 'some solution , some settlement of the mat-
NORTH EAST TEXAS MOTOR LINES , INC. 1149
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
proceeding, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications.4
We find, like the Trial Examiner, that the Respondent Company
violated Section 8 (a) (3) and (1) and the Respondent Union vio-
lated Section 8 (b) (2) and (b) (1) (A) as alleged in the complaint,
by maintaining and enforcing their collective-bargaining contract.
These are the contract clauses in issue :
Article V :
Section 2: A list of employees in the order of their seniority
shall be posted in a conspicuous place, at their place of employ:
ment. Any controversy over the seniority standing of an em-
ployee on this list shall be referred to the Union. for settlement'`
Such controversy shall be settled without regard to whether the
employees involved are members or not members of a Union.
* *
Section 4: Terminal seniority shall prevail except where all
Local Unions and a Company involved mutually agree otherwise.
The Trial Examiner properly found that section 2 violates the Act
because it is clear that the Company thereby delegated complete con-
trol over seniority of its employees to the Union and that the provi-
sion thus unlawfully had the tendency of encouraging membership in
the Union.5 With respect to section 4, the Trial Examiner appears
to have made inconsistent findings. At one point in his Intermediate
ter,' " and as such was "inadmissible and may not be held to be 'admissions .' " The record
shows that Emerson was retained as attorney by the Charging Parties to investigate and
determine whether their seniority rights were being improperly denied by the Respondents.
It is clear , therefore , that Emerson 's activities on behalf of the Charging Parties were
investigative in nature and not to effect a settlement , particularly because at the time
Emerson spoke to the Union 's representatives , he did not even know whether his clients
had any rights entitling them to a settlement . Accordingly, we find that the Trial E^-
aminer properly admitted Emerson's testimony as to the statements made to him by the
Union's representatives.
A The Intermediate Report contains certain minor misstatements and Inadvertencies , iioj^e
of which affects the Trial Examiner 's ultimate conclusions . Accordingly , we note the fol-
lowing corrections :
The Intermediate Report notes that there was no evidence in the record that decisions
to move equipment from various of the Company 's terminals to the Dallas terminal were
based on "discrimination in opportunity to transfer " therefrom or on anything other than
the Company 's business judgment . It is clear that the Trial Examiner intended to state
that there was no credible evidence in the record with respect to such decisions
The Intermediate Report states that the discrimination in the transfer of employees lnT
In the assignment of preference to the Sherman and Greenville drivers over those from
Paris. Obviously , the Trial Examiner meant that discrimination was present here because
preference was given to members of one local union over the members of another local,
rather than because preference was given to former employees of one terminal over the
employees of another terminal. i
The seniority list agreed upon by the Charging Parties and the Respondents during the
bearing was dated March 17, 1954, not 1953
5 Pacific Intermountain Express Company, 107 NLRB 837.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report he seems to have found that section 4 violates the Act but in
another that it does not. We find, in clarification, that section 4 is not
unlawful because, unlike section 2, it does not delegate to the Union
the authority to control employee seniority.
THE REMEDY
The Respondent Union asserts that the Trial Examiner's recom-
mendation that computation of back pay start from June 23, 1953, is
erroneous because : (1) The General Counsel and the Trial Examiner
stated at the hearing that the asserted violations of the complaint
were confined to July 24 and September 2, 1953; and (2) the initial
discrimination against the Charging Parties was based upon a sen-
iority list posted on June 22, a date on which a finding that the Act
had been violated was proscribed by the statutory limitation of Sec-
tion 10 (b). We find that the General Counsel's action which resulted
in the Trial Examiner's dismissal of the complaint allegation relating
to the June 22 list warrants an order requiring payment of back pay
only from the time of posting of the seniority list dated July 24, 1953,
because the complaint, as amended, gave clear notice to the Respond-
ents of illegality only as to the July 24 and September 2 lists.6
The Trial Examiner recommended that a broad cease and desist
order issue against the Respondent Union but not against the Re-
spondent Company. However, as no sufficient reason has been ad-
vanced for departure from our usual procedure of issuing a broad
order against both Respondent Company and Union in cases such
as this,7 we shall issue a broad cease and desist order against both Re-
spondents.
Order
Upon the basis of the entire record in this proceeding, and pur-
suant to Section 10 (c) of the National Labor Relations Act, the Na-
tional Labor Relations Board hereby orders that :
1. The Respondent Company, North East Texas Motor Lines, Inc.,
its officers, agents, successors, and assigns, shall :
(a) Cease and desist from :
(1) Performing or giving effect to that section of its contract cov-
ering the period February 1, 1952, to January 31, 1955, known as
"Southwestern Area Over-the-Road Freight Agreement" to which
the Respondents are parties and which covers the employees at the
Company's Dallas, Texas, terminal, which delegates to the Respond-
ent Union authority to settle controversies relating to seniority.
9 As to the Union 's second assertion , there is no question that the June 22 seniority list
had the effect- of discriminating against the Charging Parties on the very first day after
removal of the statutory 10 (b) limitation , and that back pay due the Charging Parties
would ordinarily be payable from that time, irrespective of the date the list was initially
posted
9 Pacifo Intermountain Express Company, supra
NORTH EAST TEXAS MOTOR LINES, INC . 1151
(2) Entering into, or renewing, any agreement with any labor or-
ganization which contains provisions delegating to such labor organ-
ization authority to determine the seniority of employees, or to settle
controversies relating to seniority, and enforcing such provisions.
(3) Encouraging membership in the Respondent Union, or in any
other labor organization of its employees, by maintaining, renewing,
or enforcing the clauses of any collective-bargaining agreement which,
contains illegal seniority provisions, by establishing and maintain-
ing unlawful seniority lists which deprive its employees of employ-
ment they would otherwise be entitled to, or by discriminating in any
other manner in respect to hire and tenure of employment, or any
term or condition of employment, except as authorized in Section 8
(a) (3) of the Act.
(4) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the 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 condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Upon request make available to the Board or its agents, for ex-
amination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other rec-
ords necessary for an analysis of the amounts of back pay due in ac-
cordance with the terms of this Order.
(2) Post at its terminal in Dallas, Texas, copies of the notice at-
tached hereto and marked "Appendix A." 8 Copies of said notice,
to be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by an official representative of the Re-
spondent Company, be posted by the Company immediately after re-
ceipt thereof, and be maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to its employees are customarily posted. Reasonable steps shall be
taken by the Respondent Company to insure that said notices are not
altered, defaced, or covered by any other material.
(3) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, as to the
steps it has taken to comply herewith.
H. The Respondent Union, Dallas General Drivers, Warehouse-
men, and Helpers, Local Union 745, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,
its officers, representatives, agents, successors, and assigns, shall:
8In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Cease and. desist from :
(1) Performing or giving effect to that section of its contract cov-
ering the period February 1, 1952, to January 31, 1955, known as
"Southwestern Area Over-the-Road Motor Freight Agreement" to
which the Respondents are parties and which covers the employees
at the Company's Dallas, Texas, terminal, which delegates to the Re-
spondent Union authority to settle controversies relating to seniority.
(2) Entering into, or renewing, any agreement with any employer
which contains provisions delegating to the Respondent Union au-
thority to determine the seniority of employees or to settle contro-
versies relating to seniority, and enforcing such provisions.
(3) Causing, or attempting to cause, the Respondent Company,
its officers, agents, successors, or assigns, to discriminate against em-
ployees in violation of Section 8 (a) (3) of the Act.
(4) In any other manner restraining or coercing employees of the
Respondent Company in the exercise of the rights guaranteed in Sec-
tion 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 in Section 8 (a) (3) of the
Act.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Post at its business offices in Dallas, Texas, copies of the notice
attached hereto and marked "Appendix B." 9 Copies of said notice,
to be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by an official representative of the Re-
spondent Union, be posted by the Union immediately upon receipt
thereof, and be maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to its members are customarily posted. Reasonable steps shall be
taken by the Respondent Union to insure that said notices are not al-
tered, defaced, or covered by any other material.
(2) Mail signed copies of the notice attached hereto as Appendix
B to the Regional Director of the Sixteenth Region for posting, the
Respondent Company willing, at the Company's Dallas, Texas, ter-
minal , for sixty (60) consecutive days in places where notices to em-
ployees are customarily posted. Copies of said notice, to be furnished
by the Regional Director for the Sixteenth Region, shall, after being
duly signed by the Respondent Union's representative, be forthwith
returned to the Regional Director for such posting.
(3) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, as to the
steps it has taken to comply herewith.
9In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
NORTH EAST TEXAS MOTOR LINES, INC. ; 1.15
III. The Respondents, North East Texas Motor Lines, Inc., its
officers, agents, successors , and assigns, and Dallas General Drivers,
Warehousemen, and Helpers, Local Union 745, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, its officers, representatives, agents, successors , and, as-
signs, shall, jointly and severally, make whole, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy" as
modified by the Board's Decision herein, Ralph G. Donley, M. D.
O'Neal, V. J. Eisele, and Charles M. Grimes for any loss of pay each
may have suffered because of the discrimination against him.
MEMBERS MURDOCK and RODGERS took no part in the-consideration
of the above Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that : E
WE WILL NOT perform or give effect to that section of the con-
tract covering the period February 1, 1952, to January 31, 1955,
known as "Southwestern Area Over-the-Road Motor Freight
Agreement" to which this Company is a party and which covers
the employees at this Company's Dallas, Texas, terminal, which
delegates to Dallas General Drivers, Warehousemen, arid'Helpers,
Local Union 745, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL, au-
thority to settle controversies relating to seniority.
WE WILL NOT enter into, or renew, any agreement with any labor
organization which contains provisions delegating to such labor
organization, authority to determine the seniority of our em-
ployees or to settle controversies relating to seniority, and we
will not enforce such provisions.
WE WILL NOT encourage membership in Dallas General Drivers,
Warehousemen and Helpers, Local Union 745, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, or in any other labor organization of
our employees, by maintaining, renewing, or enforcing, the clauses
of any collective-bargaining agreement which contains illegal
seniority provisions, by establishing and maintaining invalid
seniority lists which deprive our employees of employment they
would otherwise be entitled to, or by discriminating against them
in any other manner in respect to their hire and tenure of em-
1154 ' DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
ployment, or any term or condition of their employment, except
as authorized in Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the 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 in Sec-
tion 8 (a) (3) of the Act.
WE WILL make whole Ralph G. Donley, M. D. O'Neal, V. J.
Eisele, and Charles M. Grimes, for any loss of pay they may
have suffered by. reason of the discrimination against them.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of the above-named Union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of
the Act.
NORTH EAST TEXAS MOTOR LINES, INC.,
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.
Appendix B
NOTICE TO ALL MEMBERS OF DALLAS GENERAL DRIVERS, WAREHOUSE.
MEN, AND HELPERS, LOCAL UNION 745, INTERNATIONAL BROTHERHOOD
,OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL, AND TO ALL EMPLOYEES OF NORTH EAST TEXAS MOTOR
rLiNES9 INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT perform or give effect to that section of the con-
1 tract covering the period February 1, 1952, to January 31, 1955,
1 known as "Southwestern Area Over-the-Road Motor Freight
Agreement" to which this Union is a party and which covers the
employees at the Dallas, Texas, terminal, of North East Texas
Motor Lines, Inc., which delegates to this Union authority to settle
controversies relating to seniority.
WE WILL NOT enter into, or renew, any agreement with any -em-
ployer which contains provisions delegating to us authority to
determine the seniority of employees or to settle controversies
relating to seniority, and we will not enforce such provisions.
NORTH EAST TEXAS MOTOR LINES, INC. 1155
WE WILL NOT cause, or attempt to cause, North East Texas Motor
Lines, Inc., its officers, agents, successors, or assigns, or any other
employer, to discriminate against its employees in violation of
Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of North East Texas Motor Lines, Inc., in the exercise of the 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
in Section 8 (a) (3) of the Act.
WE WILL make whole Ralph G. Donley, M. D. O'Neal, V. J.
Eisele, and Charles M. Grimes, for any loss of pay suffered by
reason of the discrimination against them.
DALLAS GENERAL DRIVERS, WAREHOUSE-
MEN, AND HELPERS , LOCAL UNION 745,
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 clays from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
The complaints as amended in these consolidated cases allege respectively that the
Respondent Company and the Union have since May 7, 1953, maintained and en-
forced a collective -bargaining agreement which contained illegal seniority provi-
sions governing assignment to vacancies , new runs, and new positions , and layoffs
and reinstatements ; and that on or about July 24 and September 2, 1953,1 the Com-
pany discriminatorily and adversely demoted and changed or permitted a change in
seniority of Ralph G . Donley, M. D. O'Neal, V. J. Eisele, and Charles M. Grimes,
and deprived them of work because of their nonmembership in the Union and their
concerted activities or refusal to engage in such activities , and the Union attempted
to and did cause the Company so to discriminate ; all in violation of Section 8 (a)
( 1) and ( 3) and 8 ( b) (2) and (1) (A) of the Act.
The answers as amended deny that the Respondents have maintained and enforced
the agreement since May 7, 1953 , as alleged, and further deny the allegations of
violation by demotion and change in working conditions.
A hearing was held befofe me at Dallas, Texas , from March 15 to 18, 1954, in-
clusive. Various preliminary motions were disposed of as noted on the record;
mention need be made at this time only of motions by the Respondents to dismiss
the respective complaints , which motions were referred by Trial Examiner Stephen
S. Bean to the Trial Examiner hearing the cases . I considered these motions as
motions to dismiss or in the alternative to strike , and on the General Counsel's
statement that the violations which he charges in this connection are confined to
July 24 and September 2, 1953, granted them to the extent of striking the allega-
tions concerning June 22, 1953, in paragraph 5 of the complaints as being barred
by Section 10 (b) of the Act; these motions were otherwise denied.
3 The General Counsel declared that he does not seek any finding of Violation with
respect to acts which are without the 6-month statutory period and which allegedly
occurred on June 22, 1953
334811-55-vol. 109-74
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to leave granted to all parties, a brief was thereafter filed by the General
Counsel, the time to do so having been extended; counsel for the Union submitted
a letter in lieu of a formal brief.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Texas corporation with principal
office and place of business at Dallas, Texas, is engaged in the business of trucking
and the transportation of general freight among the States of Texas, Oklahoma, and
Arkansas, through approximately 11 terminals; that it is licensed as a carrier by the
Interstate Commerce Commission; and that it is engaged in commerce within the
meaning of the Act.
It was admitted and stipulated and I find that the Union is a labor organization
within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
References hereinafter made to the evidence, not ascribed to named witnesses,
represent uncontradicted testimony, or findings where conflicts have been resolved;
findings are made herein on the basis of reliable, probative, and substantial evidence
on the record considered as a whole and the preponderance of the testimony taken,
and evidence in conflict with the findings which is not discussed has not been cred-
ited. I have accepted as credible the testimony of some witnesses in part only;
rejecting portions, I have felt warranted in crediting other portions of their testimony.
A. The collective-bargaining agreement
On or about February 1, 1952, the Company's predecessor and the Union entered
into a collective-bargaining agreement for the period beginning on that day and end-
ing on January 31, 1955. On May 7, 1953, the Company succeeded to the interests
of the predecessor corporation and adopted the latter' s name , and, with the Union,
has since that date maintained and enforced the agreement. The denial in the answers
that the agreement as earlier entered into has been maintained and enforced is
prompted by modifications which have been made, but which are not pertinent;
it was agreed that the following paragraphs of article V, quoted in the complaint,
are in effect:
Section 2. A list of employees in the order of their seniority shall be posted
in a conspicuous place, at their place of employment. Any controversy over
the seniority standing of an employee on this list shall be referred to the Union
for settlement. Such controversy shall be settled without regard to whether the
employees involved are members or not members of a Union.
Section 3. Vacancies, new runs and new positions are subject to seniority
and shall be posted for bids. The employee with the highest seniority who bids
shall receive such vacancy, new run or new position. Posting shall be at a
conspicuous place so that all eligible employees will receive notice of the vacancy,
run or position open for bid. Bids shall remain open for a period of seven
days, and runs shall be awarded within seven days thereafter. Seniority shall
not govern assignment of equipment.
Section 4. Terminal seniority shall prevail except where all Local Unions
and a Company involved mutually agree otherwise.
Section 6. When it becomes necessary to reduce the working force, the last
man hired shall be laid off first, and when the fo?ce is again increased, the
men are to be returned to work in the reverse order in which they are laid off.
Section 4 permits the Local Union and the Company to modify the provision for
terminal seniority, thus giving them the power to restrict or extend the area of com-
petition in which seniority is to be determined without assurance of equal treatment
whether or not employees are members of the Union. The power to favor union
members is quite clear and tends to encourage membership in the Union, in viola-
tion of the Act.
As for section 2, the Board has held that language identical to that in the second
sentence is violative of the Act, and that the statement in the following sentence as
quoted above "is not by itself enough to cure the vice." 2 Not only do the facts of life,
8 Pacific Intermountain Express Company , 107 NLRB 837. See also , New York State
Employers Association, Inc., 93 NLRB 127, Intermediate Report, footnote 15.
NORTH EAST TEXAS MOTOR LINES, INC. 1157
organizationally speaking , support the decision in the Pacific Intermountain Express
Company case , but that the possibility and presumption of union exercise of control
over terms of employment in such a situation are very real is seen in the credited
testimony , infra, concerning the Union 's efforts to favor its own members as against
members of another local. For the reasons noted in the New York State Employers
Association case, the maintenance of the unlawful agreement constitutes a continuing
violation as a series of discriminatory and interfering acts throughout the period of
such maintenance .3 The situation is entirely different from any of claimed continuity
in a failure to rehire after an earlier discriminatory discharge . In the latter case,
there is a failure to remedy an earlier violation ; here we do not consider a failure to
remedy, but the violative effect of the continuing agreement . The discriminatory and
restraining effect of the agreement is manifest in the various situations cited in sec-
tions 3 and 6 of article V, and is specifically caused not only when the agreement
is executed , but each day that it is maintained . ( See footnote 6, infra. ) American
Federation of Grain Millers, AFL v. N. L. R. B.4 and N. L. R. B. v. Pennwoven,
Inc. ,5 cited by the Respondents , are not in point.
B. The seniority changes
The predecessor company had maintained its principal place of business at Paris,
Texas. With the transfer of the business, the Respondent Company established its
principal office in Dallas. The transfer was started immediately after May 7, and
included moving 5 drivers from Sherman , 5 from Greenville , and 11 from Paris, all
to Dallas. ( We need not concern ourselves with changes in method of operation.)
Five drivers who had previously worked out of the Dallas terminal remained there.
The Union has jurisdiction over Dallas , Greenville , and Sherman among other
places. Paris comes within the jurisdiction of Local 848 , a Little Rock, Arkansas,
local affiliated with the same international union.
There is no evidence of and the General Counsel disclaims any violation on the
ground of discrimination in opportunity to transfer from Sherman , Greenville, or
Paris. The discrimination urged is that the seniority in fact established by the date
of beginning of service at Dallas was discriminatorily modified at the expense of the
men from Paris. (Some claim was also made for "company seniority ," i. e., length
of service with the Company regardless of place of service , as distinguished from
"terminal seniority ." But there is no basis for any finding that the failure to follow
company seniority was discriminatory . Nor is it claimed by any of the parties that
the transfer of ownership should be considered in this connection: service and rights
accruing thereunder are treated as continuous and as if ownership were in the same
interests throughout.)
The testimony shows that the Company created removal opportunities as equip-
ment could be moved to Dallas, and that seniority at each terminal was considered in
connection with each such opportunity . It is not claimed that the Company acted
improperly or that unfair labor practices were committed in connection with either
the various decisions to move equipment or the recognition of seniority at each
terminal, however irregular in point of time the removal decisions may have been.
There is no evidence that such decisions were based on anything other than what
the Company considered to be best business practice . Neither plan nor arrangement
is shown to have existed to favor men from one terminal over men from another
terminal . If employees with less company seniority were given early opportunity
to move to Dallas as equipment was first moved from their terminal while others
elsewhere and with greater company seniority awaited an opportunity to move, the
result, however unfortunate for the latter , was not unlawful . The extreme of such
situations is seen in the case of the five original Dallas employees : the decision to
transfer operations to Dallas favored them , as did the actual transfer , as against men
at other terminals with greater company seniority ; but neither the decision nor the
result was discriminatory within the meaning of the Act. (That Paris drivers did
not avail themselves of the earliest opportunity to go to Dallas, as when Stauffer,
who had the least seniority among them , was permitted to go first , is not chargeable
to the Respondents . It is clear from the testimony of Eisele and Donley that transfer
opportunity was earlier presented ; I do not credit the general testimony of Grimes
IN. L. B. B. v. F H. McGraw and Company, 206 F. 2d 635 ( C. A. 6). If this question
was not specifically raised in the Pacific Intermountain Express case, the point was never-
theless decided when the Board found the earlier agreement to be a violation although it
was executed prior to the 6 -month statutory period.
'197F 2d451(C A.5).
5 194 F 2d 521 (C. A. 3).
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and O 'Neal in this respect . There is basis for finding that such opportunities were
not grasped because hope lingered that the Paris operation would be continued.)
A different problem arises, however, in connection with testimony that the Re-
spondents discriminated against the Paris drivers by ignoring the dates when they
moved to Dallas as compared with men from Sherman and Greenville , and relegating
them to the bottom of the seniority list. It is unnecessary to detail here the various
seniority lists posted and who prepared each. Such lists were prepared by the Union
or at its request on June 22,6 July 24, and September 2, 1953, and posted, and the
credible evidence clearly indicates that the order of seniority with the Paris men in a
group (aside from items which are not here material, the lists differ only in the order
of the Paris men among themselves) after the others was determined by the Union,
the Company acquiescing. (The actual dates of first employment at the Dallas
terminal were agreed to at the hearing. The order of terminal seniority based on
such dates and regardless of prior location is set forth in Appendix A attached
hereto.)
Dunn , the Company 's line driver supervisor, testified to the Union 's insistence that
the former Paris drivers, in a group, be placed below the former Sherman and
Greenville drivers on the seniority lists; 7 this despite the fact that, whatever con-
fusion or differences 8 may have appeared in connection with some of the dates of
employment or seniority, it is clear that at least some of the Paris men were ad-
mittedly entitled to greater Dallas terminal seniority than some of the Greenville and
Sherman men. Such action by the Company, modifying the relative seniority
ratings at the Union's request, was in violation of the Act. Even had there been a
controversy to bring the situation within the terms of article V, section 2, of the
agreement, the Company could not lawfully discriminate against employees as it
did here, where it joined in action contrary to the express provisions of the agreement.
It cannot be said that the Company resisted the Union's requests; but where the
Union was authorized to settle controversies, it would have been futile to create
controversy. This, of course, does not exculpate the Company especially since it
had itself granted the authority to the Union. But its indifference, although culpable,
is to be distinguished from insistence and is material to the question of remedy , infra.
The Union did not deny Dunn 's testimony concerning its insistence on relative
seniority as indicated in the posted lists . Its business agent , Stanford , would have us
believe that he did not know the facts of actual seniority and did not inquire con-
cerning them because no complaint was made. This explanation, if accepted, would
indicate wilful or careless unconcern; such unconcern was not consistently main-
tained , but was combined with a positive direction based on an alleged state of facts
which did concern the Union to such an extent that it issued that direction to the
Company. The Union cannot have it both ways; it assumed responsibility and
authority in directing the Company to place the Paris men at the foot of the list, yet
it denies responsibility for its alleged failure to ascertain the facts when it assumed
and acted on such authority.
Furthermore, Stanford did not favorably impress me as to his credibility. Given
an opportunity to explain his failure to check the seniority of the men from Green-
ville and Sherman 9 when he checked those from Paris and to explain his testimony
9 While it was agreed that the 6-month statutory period began on June 23, 1953, we are
not limited to consideration of the 2 later lists. That of June 22 governed assignments
thereafter and until the next went into effect. The procedure followed, particularly in
connection with "extra run" assignments, means that each daily application of a seniority
list is a separate act and, if unlawful, a separate violation. Distinction is noted between
such separate acts and the act of preparing and posting the list. (We need not press the
analogy of maintenance of the list with maintenance of the unlawful collective-bargaining
agreement ) There will be no finding of violation prior to June 23, 1953.
7 Although he testified that he received the seniority data from Dunn, the Union's repre-
sentative did not deny that he instructed Dunn to place the Paris men at the foot of the
June 22 list and continued that order on the later lists, as Dunn testified. They had had
a prior conversation concerning "the basis on which it was to be prepared," according to
the union man, and he later testified that he asked Dunn and was told that the order of
names was correct on the proposed list of July 24.
B The dates variously urged and the necessary changes are spread on the record and
need not be repeated here
8 Stanford had previously testified generally that he did try to list Dallas seniority of
the men from the various terminals ; yet his listing was clearly erroneous . As my conclu-
sion, infra, in this connection indicates, I do not regard these errors as accidental or coinci-
dental. I do not credit his testimony which suggests that he received such incorrect data
from company representatives . At the same point in his testimony he denied his earlier
NORTH EAST TEXAS MOTOR LINES, INC. 1159
that he asked the Company to list on the seniority roster the dates for the last five
men from Paris, he obviated further questioning on that point by his testimony
that Stauffer, the driver who had raised the issue of error in the roster, told him
that he was junior to all of the men from Greenville. Not only is it reasonable
to believe that under those circumstances the Union would check seniority and had
done so long before; not only is it likewise unreasonable to believe that Stauffer,
claiming greater seniority, volunteered (there is no suggestion that Stanford in-
quired of Stauffer, or from his testimony that he thought it necessary or was inter-
ested enough in the erstwhile Paris men to inquire of Stauffer) the information
that these others were ahead of him; but Stauffer, although clearly hostile to the
General Counsel, specifically denied that he mentioned these others to Stanford.
(Stauffer remains a member of the Union although he is now employed by another
company in Paris. The latter city was within the jurisdiction of Local 878 when the
Respondent Company maintained its office there. Whether the Respondent Union
has extended its jurisdiction is not material to the present issue.)
I do not rely on Donley's testimony to this effect since he also indicated un-
reliability on the stand. But in addition to Dunn's specific testimony, the inference
is not only clear, it is inescapable that the Union (there is no question concerning
Stanford's authority) relegated and persuaded the Company to relegate the Paris
men to the bottom of the seniority ladder. The further deduction is made in the
absence of any other indicated basis for distinction in assignment of seniority to the
2 groups, that the Greenville and Sherman men, commingled as 1 group and listed
according to their own relative seniority, were given preferred positions over the
Paris men, grouped separately, because the former had for sometime been mem-
bers of this Union, Local 745, while the latter were not or had lately become mem-
bers.10 (The Union's discriminatory intent here found is actually unnecessary to
the finding of violation. The Company's discrimination is clear, and the Union is
liable for having caused it.)
According seniority preference to the original Dallas terminal men would be
lawful and in accordance with the principle of terminal seniority. (We are not now
considering the effect of the unlawful collective-bargaining agreement.) But termi-
nal seniority recognition required that the drivers trom Sherman, Greenville, and
Paris should thereafter have been rated in seniority according to the date of their
arrival on the job for work out of the Dallas terminal, and without discrimination
or distinction because of their prior place of employment. The offense here lies in
the splitting of the 3-city group into 2 groups and the assignment of preference to
the Sherman and Greenville men over those from Paris when such preference was
not warranted. The idea of commingling was recognized and put into effect; but
its application was unlawfully restricted. I find that the Union caused the Company
to discriminate and itself restrained employees, both in violation of the Act."
The findings of violation by the Union are further supported by the testimony
of Emerson, an attorney retained by the discriminatees in the latter part of 1953
to probe the situation. He testified that Stanford told him that the Union had per-
suaded the Company to call in the men from Sherman, Greenville, and Paris, and
that he felt that in view of the Union's efforts, its own members (those from Sher-
man and Greenville) "should have priority over the men [from Paris] who didn't
testimony that a company representative had told him that except for Donley's position
the list of July 24 was correct. Here he declared that on a collect long-distance call to the
Company's office in Paris, where all of the records had been maintained, he inquired only
concerning Donley's position and not concerning any other man. (Evidently, he did not
even check on Stauffer, whose claim of error had prompted the call.)
10 The discriminatees joined the Union at various dates between July 15 and July 30,
1953. Stauffer testified that he joined a week or two after May 26.
u The instant situation may be compared with that outlined in the following language
from the court's opinion in N. L R B v. International Longshoremen's .f Warehousemen's
Union, 210 F. 2d 581 (C. A. 9), at page 582.
. . . any attempt on (the Employer's) part to hire . . . outside of the hall would
have resulted in union trouble. The inference that the instructions to the dispatchers
caused the Employers to discriminate against (the employees) Is a reasonable infer-
ence, and one within the power of the Board to draw. See Radio Officers' Union v.
N L. R. B , (347 U. S. 17, February 1, 1954).
The cases are of course different; but the Union's authority and exercise of authority in
coniiectidn'with seniority in the instant case are clear both from the collective-bargaining
agreement and from such testimony as Dunn's and Emerson's. We have here more than
inference as a basis for the finding made.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
belong to [that] local." I have not overlooked Emerson's statement that Stanford
told him that the men from Paris had "reported in last." The fact, of course, is
that they had not as a group reported in last. Nor is his reliability lessened by his
claim for company seniority or his conclusion that the Union favored terminal
seniority. His confusion concerning terms and his relative unfamiliarity with the in-
dustry do not lessen the effect of his clear and unambiguous testimony concerning
Stanford's declared preference for the Union's men over those who had belonged
to another local prior to the move to Dallas. I do not credit Stanford's denial of
Emerson's testimony.
The Union argued at the hearing that there is no proof of monetary loss sus-
tained by the discriminatees; nor would I receive testimony on the question of such
loss. Testimony concerning financial loss and its extent is properly left for com-
pliance proceedings. Even if there were no financial loss (if for example the Com-
pany had not operated, or the discriminatees earned as much in other employment),
subordination on the seniority ladder would itself constitute discrimination and tend
to encourage union membership. The violations established, a remedial order would
issue; where there is no pecuniary loss, the provision that the employees be made
whole would in such case result in no payment to them. As the court declared in
N. L. R. B. v. Alaska Steamship Co. and American Radio Assn., C1O,12 affirming the
Board's order, "[The Board] further determined that the removal of Underwood's
name from the assignment list constituted in itself discrimination against Underwood,
in violation of Section 8 (a) (1) and (3) by the Company and Section 8 (b) (2) and
(1) (A) by the Union." The distinction is immaterial that the Union there removed
the employee from its assignment list while here it was the employer which subordi-
nated the employee on its seniority (and assignment) list at the Union's direction.
After the unfair labor practice has been determined, the extent of any loss suffered is to
be determined in compliance proceedings.13 This procedure is further supported by
the Alaska Steamship Company case, where the court stated: "Naturally no determi-
nation of the amount of lost pay flowing from the discriminatory treatment of Under-
wood has yet been made."
It is clear that the finding of violation and issuance of a remedial order do not
depend on prior proof of pecuniary loss It is procedurally and administratively
desirable that a definitive finding of violation of the Act precede matters which can
be left for compliance proceedings "
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
IV. THE REMEDY
Since it has been found that the Respondents have engaged in and are engaging in
unfair labor practices affecting commerce, I shall recommend that they cease and
desist therefrom and take certain affirmative action to effectuate the policies of the
Act.
During the hearing and after agreement on a seniority roster, as set forth in
Appendix A attached hereto and based on order of employment in Dallas terminal,
indicated by log and payroll records, the Respondents declared on the record that
the seniority list thereafter employed would be according to such agreed upon roster.
That evening, March 17, the Company posted the new seniority roster on its bulletin
board, a statement to that effect being made on the record the following morning,
March 18 , on which latter date the Union submitted a letter to the Company in
which it noted its own acceptance of the new seniority list, suggested posting on the
bulletin board, and waived the contract provision for referral of seniority con-
troversies to the Union for settlement . I had stated at the hearing, on March 17,
that if the seniority agreement and action taken thereunder were broad enough, they
'2 211 F. 2d 357 (C. A. 9).
'S N L. R B v. Royal Palm Ice Company , 201 F. 2d 667, 668 (C. A 5).
14 Also in point on the general issue and perhaps more immediately relevant Is the fol-
lowing from Pacific Intermountain Empress Company, 107 NLRB 837: "Moreover, the
mere fact that it may be difficult to determine, on the record herein , the precise amounts
of back pay due is no basis for a denial of our usual remedy "
NORTH EAST TEXAS MOTOR LINES, INC. 1161
would toll any liability for back pay. 16 (No question was raised concerning the suf-
ficiency of notice of the change in seniority ratings. Their new positions on the
roster and consequent relative availabilities were made clear to the discriminatees.)
The General Counsel argues that terminal seniority in this case is discriminatory
in view of the taint of the contract provisions concerning seniority, and that to con-
tinue such seniority as indicated in the list of March 17, 1953, is to continue the
violation. Without endorsing any seniority plan, but stating that there are several,
he proposes only "that a method be established which is not discriminatory." He
indicated as one method of accomplishing a nondiscriminatory listing, complete re-
vision of the present seniority roster "wholly in accordance with company seniority."
(In his brief the General Counsel prays "that the [sic] proper remedy be provided
therefor.")
While company seniority would favor the discriminatees, we must consider the
policies of the Act and the rights both of all of the parties and of the other employees.
A finding that the collective-bargaining agreement violated the Act because of the
discretion and power granted to the Union does not require that we discard in its
entirety the general concept of seniority, or the more specific idea of terminal
seniority." Everyone concerned has accepted the seniority principle, and we need
not cast aside what they have accepted because the parties to the agreement went to
an unlawful extreme. Nor am I prepared to say that but for the illegality of the
agreement, some system other than terminal seniority would have been followed.
While no evidence was submitted on the period of time during which terminal
seniority has been followed and by how much it antedates the provisions of the Act
which declare the illegality found in the agreement, it is clear that Employer, em-
ployee, and Union alike accept the principle of terminal seniority.
Admittedly we cannot determine to what extent such acceptance is due' to the
illegal agreement. But aside from the question of my authority to write a collective-
bargaining agreement, there is no evidence that any other form of seniority would
be preferable. (This is in general terms, not considering individual preferences.)
Judging from past experience and despite an indication that the Company may prefer
companywide seniority, it is clear that directed to prepare a new agreement, Company
and Union would select and provide for terminal seniority. (If I be mistaken in
this respect, their exceptions can include reference to a different preference. Unlike
the parties to the agreement, the General Counsel may not point to his preference;
he is limited to the questions of legality and public policy.) Finally, ignoring, since
we must, the unknown effect of the existing agreement on the selection of the seniority
method, can it be said that terminal seniority, any more than another form of
seniority which might be adopted, offends the principles of natural justice, the
statute, or our own sensibilities?
We can properly retain the principle of terminal seniority and provide a remedy
in accordance with it. With the adoption of the new seniority roster, it is unneces-
sary to direct the establishment of such by the Company or notice by the Union that
it agrees thereto. A proper i4 remedy in that connection need include only a direc-
tion to cease and desist from the discrimination with respect to seniority and to make
the discriminatees whole for any loss suffered between June 23, 1953, and March
17, 1954.
As for the agreement, it does not appear that violative provisions affected
employees with respect to the date when they went to work at the Dallas terminal.
While the terminal seniority provision may well have led individuals to delay in
moving from other terminals, that provision is not itself violative of the Act (dis-
tinguishing it from the authority granted to the Union), and the decisions to delay
moving reflected individual choice, as noted supra. As for the practice followed,
whatever desire and intent the Union may have had to favor its members, it was
under no obligation to give nonmembers notice or advice concerning removal to
Dallas. That obligation was assumed by the Company, and there is no evidence of
is This was, of course, no determination that the Respondents were liable or on the
other hand that their agreement on seniority and action thereunder were sufficient, these
being matters for initial determination in this report.
10 The Charging Parties were polled by the Union on acceptance of the seniority list
which was finally prepared and posted on March 17. The General Counsel afterward de-
clared on their behalf that by agreeing to that list they did not waive any claim for back
pay or of prior or subsequent violation. In any event, neither the Respondent' s action in
this connection nor the agreement by the discriminatees limits the Board's duties or powers.
The General Counsel has filed the complaint, and the Charging Parties cannot themselves
press for dismissal or even for withdrawal of their charges at this stage.
17 Cf. Efco Manufacturing, Inc., 108 NLRB 245.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violative intent by the latter or of any unlawful delay in notifying the Paris terminal
drivers. That the latter may have delayed their removal to Dallas is therefore not
chargeable to the Respondents as a violation of the Act, and again our remedy is
properly limited to the seniority list established in accordance with the dates of
employment at the Dallas terminal. As for the Union's declared waiver of the pro-
vision for referral to it for settlement of seniority controversies, violation prior to
such waiver has been found. Compliance anticipatory of such finding does not
cancel the need and advisability of a cease and desist order even if the prospective
effect of the waiver be fully endorsed.
It has been found that the Company violated Section 8 (a) (3) and (1) of the
Act, and that the Union violated Section 8 (b) (1) (A) and (2) of the Act by main-
taining and enforcing a collective-bargaining agreement which contained illegal sen-
iority provisions. I shall therefore recommend that the Respondents cease and desist
from giving effect to the clauses of the agreement's which violate the Act, or similar
clauses of any extension or renewal thereof.
It has been further found that the Company, by establishing and maintaining in-
valid seniority lists, discriminated against Ralph G. Donley, M. D. O'Neal, V. J.
Eisele, and Charles M. Grimes in regard to their hire, tenure, terms, and conditions
of employment in violation of Section 8 (a) (1) and (3) of the Act, and that the
Union caused the Company so to discriminate, and itself restrained and coerced em-
ployees, in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. I shall
therefore further recommend, a valid seniority list having been established, that the
Company and the Union, jointly and severally, make said employees whole for any
loss of pay they may have suffered from June 23, 1953, to March 17, 1954, inclusive,
by reason of the discriminatory action aforementioned by payment to each of them of
a sum of money equal to that which he would normally have earned had he been
properly placed on the seniority list, less his net earnings,19 which sum shall be com-
puted `° on a quarterly basis. It is also recommended that the Board order the Com-
pany to make available to the Board upon request payroll and other records to
facilitate the checking of the amount of back pay due.21
Since the Company's violation does not indicate an intent generally to interfere
with the rights of employees, and it is not reasonably to be apprehended that it will
commit unfair labor practices different from and not related to those found herein,
I shall further recommend only that the Company cease and desist from the unfair
labor practices found, and any like or related conduct.'
The Union was the prime mover and determining authority, and its unfair labor
practices found herein indicate a purpose to limit the lawful concerted activities of
the Company's employees. Such purpose is related to other unfair labor practices,
and it is found that the danger of their commission is reasonably to be apprehended.
I shall therefore recommend a broad cease and desist order against the Union, pro-
hibiting infringement in any manner upon the rights guaranteed in Section 7 of the
Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Dallas General Drivers, Warehousemen, and Helpers, Local Union 745, In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, is a labor organization within the meaning of Section 2 (5) of the
Act.
2. By discriminating in regard to the hire, tenure, terms, and conditions of em-
ployment of Ralph G. Donley, M. D. O'Neal, V. J. Eisele, and Charles M. Grimes,
thereby encouraging membership in a labor organization, the Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. By such discrimination, thereby interfering with, restraining , and coercing its
employees in the exercise of rights guaranteed in Section 7 of the Act, the Company
nt There is neither allegation nor evidence attacking the majority status of the Union. It
will therefore not be recommended that the agreement be set aside in its entirety.
'*Crossett Lumber Company, 8 NLRB 440. See also Republic Steel Corporation v.
N. L. If. B., 311 U. S. 7.
W F. W. Woolworth Company, 90 NLRB 289.
n Ibid.
kCf:•Kram.bo Food Stores, Incorporated, 106 NLRB 870.
BROTHERHOOD OF PAINTERS, ETC. 1163
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) of the Act.
4. By causing the Company to discriminate in regard to hire, tenure, terms, and
conditions of employment in violation of Section 8 (a) (3) of the Act, the Union
has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the
Act.
5. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act , the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
6. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix A
1. A. J. Rogers
2. M. H. Miller
3. A. M. Pool
4. M. E. Barbee
5. W. B. Ashmore
6. J. D. Smith
7. R. L. Sparks
8. W. G. Gray
9. R. F. Phelps
10. D. Sales
11. V. J. Eisele
12. J. E. Phelps
13. E. L. Hudson
14. C. M. Grimes
15. R. K. Nails
16. M. D. O'Neal
17. R. G. Donley
BROTHERHOOD OF PAINTERS , DECORATORS & PAPERHANGERS OF AMERICA,
LOCAL UNION NO. 1730 and PAINTING AND DECORATING CONTRAC-
TORS OF AMERICA , GEORGIA STATE COUNCIL, AUGUSTA CHAPTER.
Case No. 10-CC-60. September 3,1954
Decision and Order
On February 23, 1954, Trial Examiner Thomas S. Wilson 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 copy of the
Intermediate Report attached hereto. The Trial Examiner also found,
that the Respondent had not engaged in certain other alleged unfair
labor practices and recommended dismissal of those allegations of the
complaint. Thereafter, the General Counsel and the Charging Party,
hereafter called the Association, filed exceptions to the Intermediate
Report and supporting briefs. The Respondent filed a reply brief.
The Board bas 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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the exceptions and modifications
noted below.
As detailed in the Intermediate Report, the Association and the
Respondent had been without a contract in the Augusta-Aiken area
109 NLRB No. 166.