St. Johnsbury Trucking Co., Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1958

120 N.L.R.B. 636 (N.L.R.B. 1958)

636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Johnsbury Trucking Co., Inc . and Herman Ericksen and Local
478, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America
Local 478, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Herman Ericksen
and St. Johnsbury Trucking Co., Inc. Cases Nos. 22-CA-5 (for-
merly 2-CA-5126) and 22-CB-8 (formerly 2-CB-1838). April 28,
1958
DECISION AND ORDER
On February 19, 1957, Trial Examiner David London issued his
Intermediate Report in this consolidated proceeding, finding that the
Respondents had engaged in some, but not in others, of the unfair
labor practices alleged in the complaints, 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. He
also recommended that the complaint be dismissed in part. There-
after, the General Counsel filed exceptions, and a brief in support
thereof. Respondent Union filed a brief in answer to the exceptions
and the General Counsel filed a reply brief thereto.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings,2 conclusions, and recommendations s
of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act,
as amended, the Board has delegated its powers in connection with the case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
2 Having found that the contract provision is not unlawful, we agree with the Trial
Examiner that it is unnecessary to decide whether the single incident of discrimination
remaining in the case is also violative of Section 8 (a) (2). The Board does not generally
find that a single violation of Section 8 (a) (3) constitutes, without more, a violation
of Section 8 (a) (2).
8 Before the close of the hearing, the parties restored Herman Ericksen to number 4
position on the seniority list. As the Board was not a party to the settlement among the
parties, it is not limited thereby. N. L. R. B. v. Hekman Furniture Company, 207 F. 2d
561, 562 (C. A. 6) ; N. L. R. B. v. Spitzer Motor Sales , Inc., 211 F. 2d 235 (C. A. 2). The
discontinuance of the unlawful conduct does not divest the Board of jurisdiction to issue
an order to ensure against possible future violations of the same character and to require
that Ericksen be made whole for the discrimination against him . See N. L . R. B. v. Bell
Aircraft Corporation, 206 F. 2d 235, 238 (C . A. 2) ; N. L. R. B. v. George W. Reed, 206
F. 2d 184 , 191 (C. A. 9).
120 NLRB No. 85.
ST. JOHNSBURY TRUCKING CO., INC. 637
A. The Respondent, St. Johnsbury Trucking Co., Inc., its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in the Respondent Union, or in any
other labor organization of its employees, by refusing employment to
any of its employees, or by down-grading the seniority of any of its
employees, pursuant to the request of the Union, or by discriminating
against them in any manner in regard to their hire or tenure of em-
ployment or any term or condition of employment, except to the extent
permitted by Section 8 (a) (3) of the Act.
(b) 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 condition of employment, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Restore Herman Ericksen on the seniority list of employees at
its Newark terminal at his rightful position, no lower than number 4,
and grant him all the rights pertaining to that position which he
would now be enjoying if it were not for the discrimination against
him.
(b) Post at its terminal at Newark, New Jersey, copies of the
notice attached hereto marked "Appendix A." 4 Copies of said notice,
to be furnished by the Regional Director for the Twenty-second Re-
gion, shall, after being duly signed by an authorized representative of
the Company, be posted by it immediately upon receipt thereof and
maintained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Company to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay due
and the rights of employees under the terms of this Order.
(d) Notify the Regional Director for the Twenty-second Region
in writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
* In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be sui stituted 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."
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Respondent, Local 478, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, its officers,
representatives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Causing or attempting to cause Respondent Company to dis-
criminate against Herman Ericksen in violation of Section 8 (a) (3)
of the Act.
(b) In any other manner restraining or coercing the Company's
employees in the exercise of the rights guaranteed by Section 7 of the
Act, except to the extent permitted by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Give its approval to the restoration of Herman Ericksen at his
rightful position on the seniority list of the Company's employees at
its Newark terminal, no lower than number 4 thereon.
(b) Post at its business offices and meeting halls in Newark, New
Jersey, copies of the notice attached hereto marked "Appendix B." 5
Copies of the notice, to be furnished by the Regional Director for the
Twenty-second Region, shall be posted by the Respondent Union im-
mediately upon their receipt, after being duly signed by an official
representative of the Union. When posted, they shall be maintained
by it for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by said Union
to insure that these notices are not altered, defaced, or covered by any
other material.
(c) Mail copies of the said notice to the Regional Director for the
Twenty-second Region, for posting at Respondent Company's Newark
offices and terminal, in places where notices to drivers are customarily
posted. Copies of the notice, to be furnished by the Regional Director
for the Twenty-second Region, shall be returned forthwith to the Re-
gional Director after they have been signed by an official representative
of the Union, for such posting.
(d) Notify the Regional Director for the Twenty-second Region
in writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
C. The Respondent Company and the Respondent Union shall
jointly and severally take the following action which the Board finds
will effectuate the policies of ' the Act :
Make whole Herman Ericksen for any loss of pay he may have suf-
fered by reason of the discrimination against him in the manner set
forth in the section of the Intermediate Report entitled "The Remedy."
5 See footnote 4, supra.
ST. JOHNSBURY TRUCKING CO., INC. 639
IT IS FURTHER ORDERED that the allegations of the complaint that the
Company violated Section 8 (a) (2) of the Act be, and hereby are,
dismissed.
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 Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT encourage membership in, or activities in behalf
of, Local 478, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or in behalf of
any other labor organization of our employees, by discriminating
in any manner in regard to hire, tenure, or any term or condition
of employment.
WE WILL offer to Herman Ericksen immediate and full re-
instatement to his former or substantially equivalent position
without prejudice to his seniority or other rights previously en-
joyed by him, and make him whole for any loss of,earnings as a
result of the discrimination against him.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through repre-
sentative of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from engaging in any or all such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment in conformity with Section 8 (a) (3)
of the Act.,
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization except to
the extent above stated.
ST. JJOHNSBURY TRUCKING CO., 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.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 478, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA AND TO ALL EMPLOYEES OF ST. JOHNSBURY TRUCKING
CO., 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 cause or attempt to cause St. Johnsbury Trucking
Co., Inc., its officers, agents, successors, or assigns, to discriminate
against its employees within the meaning of Section 8 (a) (3)
of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of the above Company in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent permitted by Section
8 (a) (3) of the Act, as amended.
WE WILL, jointly with St. Johnsbury Trucking Co., Inc., re-
store Herman Ericksen's name to his rightful position on the
seniority list at its Newark terminal, and grant him all rights
pertaining to that position.
WE WILL make whole Herman Ericksen for any loss of pay he
may have suffered because of the discrimination against him.
LOCAL 478, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(R(,presentative) (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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges, and an amended charge, filed by Herman Ericksen, the General
Counsel of the National Labor Relations Board, by the Regional Director for the
Second Region, issued an order consolidating the above-entitled cases, and a com-
plaint, dated November 20, 1956, against St. Johnsbury Trucking Co., Inc., herein-
after called the Company, and Local 478, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, herein called the
Union.
The complaint alleges that on or about October 5, 1956, the Company and the
Union executed, and since then have maintained in effect and enforced, a collective-
bargaining agreement relating to hire, tenure, terms, and conditions of employment
of the Company's employees at its Newark plant which agreement contains, inter alia,
provisions which give and delegate to the Union final and exclusive control over the
seniority ranking of the Company's employees and which seniority ranking deter-
mines the order of employment and layoff of said employees. The complaint also
ST. JOHNSBURY TRUCKING CO., INC. 641
charges that on or about October 8, 1956, and since that date, the Union required
and demanded that the Company reduce the seniority ranking of Herman Ericksen
from 4th place to 15th place on the seniority list pursuant to the provisions of the
aforementioned agreement because said Ericksen refrained from assisting the Union
and from engaging in other concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection. The complaint further alleges that since on
or about October 8, 1956, the Company failed and refused to continue the employ-
ment of Ericksen in accordance with his previous seniority ranking, and refused
thereafter to reinstate or reemploy him, because he had refrained from assisting the
Union and from engaging in other union activities. By the complaint, the General
Counsel concludes that the conduct of the Company aforementioned was violative
of Section 8 (a) (1), (2), and (3) of the Act, and that of the Union as violative
of Section 8 (b) (1) (A) and 8 (b) (2) of the Act.
The charges and amended charge, order of consolidation, the complaint, and
notice of hearing were duly served upon all the parties thereto. Both Respondents
denied the commission of any conduct violative of the Act. Pursuant to notice,
a hearing was held at New York, New York, on various dates between December
20, 1956, and February 1, 1957, before the Trial Examiner duly designated to con-
duct the hearing. The General Counsel and the Union appeared through counsel,
the Charging Party appeared in person, and the Company by its district manager and
terminal manager . Full opportunity to be heard, to examine and cross -examine
witness, and to produce evidence was afforded all parties.
Upon 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 COMPANY
St. Johnsbury Trucking Co., Inc., is engaged in the business of providing trans-
portation and related services and maintains a terminal at Newark, New Jersey.
During the past year, its gross revenue exceeded $1,000,000 of which in excess of
$100,000 was derived from its interstate operations between and among the States
of New Jersey, Massachusetts, Vermont, and other States. The Company concedes,
and I find, that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO, the Union herein, is a labor organization within
the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In or about March 1956, the Company and the Union entered into a collective-
bargaining agreement covering the Company 's truckdrivers and other employees
which agreement , as subsequently amended, was made effective until August 31,
1958. The agreement contains a valid union-security agreement and the following
relevant provisions concerning seniority:
Section 5: Seniority.
(a) Seniority-according to job classification-shall prevail at all times.
(b) The employer shall compile a Seniority List from the regular payroll
records, subject to the approval of the Union.
Herman Ericksen has been employed by the Company since January 1952 as a
truck-trailer driver out of its Newark terminal . In accordance with a collective-
bargaining agreement between the Company and the Union , drivers receive their
work assignments every morning in the order of their respective standing on the
seniority list. On September 1, 1956 , while Ericksen was a member of the Union
in good standing , a strike occurred at the Newark terminal causing a complete cessa-
tion of operations until the morning of the following October 8 . At the time of the
strike , Ericksen had achieved the number 4 position on the seniority roster.
Though drivers normally commenced work between 7 and 8 a . m., Ericksen re-
ported for work on the morning of October 8 at about 6:30. At approximately 6:55,
Devlin , the Union 's shop steward , after talking with Peter Gallo, the Company's
terminal manager , told Ericksen that he had been placed at the bottom of the seniority
list under instruction from Milton Liss, the Union 's president , because he had not
performed enough picketing duty during the strike . After all of approximately 15
drivers left with their trucks that morning , Ericksen went to Gallo and asked why,
483142-59-vol . 120-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in view of his number 4 position on the list, he had not been put to work. Gallo
answered that he had been informed by Devlin that Ericksen had been relegated to
the bottom of the seniority list. Gallo stated that he did not think the Union could
so dispose of Ericksen 's seniority and that as far as he, Gallo , was concerned , Erick-
sen "was number 4 man." He added, however, that he could do nothing about the
matter because of "union orders." Though Gallo had authority to assign work,
Ericksen received no assignment. Ericksen asked Gallo whether he could go to the
Union and see Liss, and Gallo gave his approval. Ericksen waited until shortly after
the last driver left the terminal and went to see Liss.
Liss told him that he had been placed at the bottom of the seniority list to
"punish" him because he had not "done enough picket duty during the strike." Liss
also told him that the foregoing neglect of duty would be brought to the attention of
the Union's executive board . Ericksen vainly reported ,for work "a couple of times"
thereafter until about October 19, when he received a telegram from Gallo asking
him "to come in." Though the two men talked , Ericksen was not returned to work.
The testimony of Gallo , and Joseph Cirnigliaro , the assistant terminal manager,
and the Company's letter to the Board dated November 26, 1956, which served as its
answer to the complaint herein , are to the effect that on and after October 8 Ericksen
failed to make himself "available for work." This appears to be the only defense
presented by the Company to the charge that it discriminated against Ericksen as
alleged in the complaint . I find no credible evidence in the record to support that
defense. On the contrary, I find that Ericksen presented himself to work early on
the morning of October 8, and on several occasions thereafter , and that he was denied
employment by the Company pursuant to instructions from the Union, which in turn
were prompted by Ericksen's alleged failure to perform satisfactory picket duty dur-
ing the strike which ended on October 7. By that conduct, the Company interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, and discriminated in regard to the hire and tenure of employ-
ment and other terms and conditions of employment of its employees , all in violation
of Section 8 (a) (1) and (3) of the Act. Radio Officers' Union v. N. L. R. B., 347
U. S. 17.1
By requiring and demanding since October 8 , 1956 , that the Company re-
duce Ericksen 's seniority rating because he had not allegedly engaged in sufficient
picket duty, the Union restrained and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act and thereby violated Section 8 (b) (1) (A) of the
Act. By causing the Company to discriminate against Ericksen , the Union violated
Section 8 (b) (2) of the Act.
There remains for consideration the allegations of the complaint that by executing
and maintaining in effect , since October 5, 1956 , the agreement containing the sen-
iority provision heretofore quoted , the Company granted to the Union "final and
exclusive control over the seniority ranking of the Company 's employees " The Gen-
eral Counsel contends that by incorporating that provision in the contract the Com-
pany violated Section 8 ( a) (1), (2), and ( 3), and the Union violated Section 8 (b)
(1) (A) and 8 (b) (2) of the Act. As support for that contention, the General
Counsel relies on Pacific Intermountain Express Company, 107 NLRB 837, enfd. as
mod. 225 F. 2d 343 (C. A. 8).
In that case, however, the contract provided that "[a]ny controversy over the sen-
iority standing of any employee . . . shall be referred to the Union for settlement."
The Board, with court approval, concluded that by that grant of authority, the "Com-
pany delegated to the Respondent Union complete control over the determination of
seniority ; and seniority , in turn , was made the determinative factor in the assignment
of jobs and making layoffs. Thus the Company in effect delegated to the Union com-
plete authority in both instances to determine work assignments and reductions in
force." (Emphasis supplied. ] Other cases 2 in which similar findings of violation
were entered also involved agreements couched in almost the identical language by
which the Union was given complete control over the determination of seniority in
Pacific Intermountain.
' I find it unnecessary to determine whether the foregoing conduct by the Company was
also violative of Section 8 (a) (2) of the Act as alleged in the complaint. I refrain from
doing so , not only because of the doubts I entertain whether this isolated act of assist-
ance is of the character proscribed by that section, but also because, assuming that a vio-
lation of Section 8 (a) (2) were found, the remedy for that violation would be no
broader or more extensive than that hereafter prescribed for the violation of Section 8
(a) (1) which I have already found.
2 Minneapolis Star and Tribune Company, 1Q9 NLRB 727 , Chief Freight Lines Com-
pany, 111 NLRB 22; Kenosha Auto Ti ansport Corporation, 113 NLRB 643.
ST. JOHNSBURY TRUCKING CO., INC . 643
In the agreement before me, however , there was no such abdication by the Em-
ployer. Here, the only provision in the contract which is under attack directed the
Company to "compile a seniority list from [ its] regular payroll records, subject to
the approval of the Union ." Such a provision , however , does not "delegate to the
Respondent Union complete control over the determination of seniority" which was
condemned in Pacific Intermountain . Here, if the Union did not approve of the sen-
iority list prepared by the Company , the Union was not given authority to settle the
dispute as it was in Pacific Intermountain and the cases which followed that decision.
Here, the contract provides that if the Union did not approve of the seniority lists
prepared by the Company, either party could invoke the arbitration machinery pro-
vided by section 17 of the contract . By that section , the parties agreed that "[ s]hould
any dispute arise between . . . the employer and the Union . . . concerning any
term or condition of employment , or otherwise , the representatives of the employer
and the representatives of the Union shall attempt to adjust the controversy between
themselves . In the event they are unable to adjust the same, the dispute shall
within two ( 2) days after the request of either party , be submitted to arbitration to the
New Jersey State Board of Mediation , Newark , New Jersey [ the arbitration
authority ] whose decision shall be final and binding upon the parties hereto. The
disputes referred to herein shall include but shall not be limited to disputes con-
cerning the discharge of an employee." [Emphasis supplied.]
It thus appears that if the Company and the Union are unable to resolve their
differences with respect to the seniority list, the dispute is to be decided by the
State Board of Mediation , and not by the Union . Accordingly I cannot conclude,
as the complaint alleges, that the contract under consideration gave to the Union
"final and exclusive control over the seniority ranking of [the Company's ] employees,
which seniority ranking determines the order of employment and layoff of said
employees." It will, therefore , be recommended that the allegations of the com-
plaint charging that the Company and the Union violated the Act by incorporating
in their contract and maintaining in effect the provisions concerning seniority
presently under consideration be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondents ' activities , set forth in section III , above , occurring in connection
with the Company 's operations , 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 commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, I
shall recommend that each of them cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act 3
The respective Respondents having discriminated against and caused the dis-
crimination against Herman Ericksen at all times since October 8, 1956 , 1 recom-
mend that they immediately restore him on the seniority list for the Newark
terminal at his rightful position thereon , no lower than number 4 , with all rights
attached thereto . It is also recommended that the Company and the Union , jointly
and severally , make him whole for any loss of pay he may have suffered by reason
of the discrimination against him by payment to him of a sum of money equal to
that which he normally would have earned as wages had he been - occupying said
fourth position on the list from October 8, 1956, to the date when , pursuant to the
8 After a recess during the course of the hearing, counsel for the Union announced that
Ericksen , the Company , and the Union had arrived at a settlement of the proceeding.
Under their agreement Ericksen was to be returned to work on the following morning
"with, his full seniority as number 4 . . . as if he were never out of employment," and
that Ericksen would "not seek or accept back pay from either of the parties." The Gen-
eral Counsel however , did not give his consent to the proposed settlement because of the
refusal by the Company and the Union to incorporate in the notice customarily required
to be posted by the parties a provision that Ericksen be "made whole for any discrim-
ination that may have been caused him " Counsel for the Union then announced that it
would not further participate in the hearing because, in his opinion , the Union had "a set-
tlement whether the Board has or not." The hearing was thereafter resumed without
the presence of counsel or representative of either the Company or the Union. Under
the circumstances, and the record as it presently exists, I see no reason for prescribing
any remedy other than that which the Board has uniformly and consistently invoked to
remedy unfair labor practices of the type found herein.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendations herein contained, Respondents shall restore him to his rightful'
position , less his net earnings during said period . Back pay is to be computed on
a quarterly basis in the manner established by the Board in F . W. Woolworth
Company, 90 NLRB 289. As provided in the Woolworth case, I recommend fur-
ther that Respondent Company make available to the Board , upon request , payroll
and other records, in order to facilitate the checking of the amount of back pay due.
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. St. Johnsbury Trucking Co., Inc ., is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. Local 478, International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , AFL-CIO, is a labor organization within the meaning
of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Company has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment and other
terms and conditions of employment of Herman Ericksen , the Company has engaged
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
5. By attempting to cause and causing the Company to discriminate against
Herman Ericksen , and thus to commit an unfair labor practice within the meaning
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.
6. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Union has engaged in unfair labor practices within
the meaning of Section 8 (b) (1) (A) of the Act.
7. The unfair labor practices herein found are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The collective -bargaining agreement between the Company and the Union
does not give and delegate to the Union final and exclusive control over the
seniority ranking of the Company's employees , or the final and exclusive right toa
determine the order of employment of the Company's employees.
9. The Company has not engaged in unfair labor practices within the meaning
of Section 8 (a) (2) of the Act.
[Recommendations omitted from publication.]
Allis-Chalmers Manufacturing Company and International"
Union , United Automobile , Aircraft and Agricultural Imple-
ment Workers of America, AFL-CIO. Case No. 6-CA-11493.
April 28, 1958
DECISION AND ORDER
On January 23, 1958, Trial Examiner Charles L. Ferguson 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. Thereafter, the Respondent
filed exceptions to the Intermediate Report with a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
1 The Respondent's request for oral argument is hereby denied as , in our opinion, the
record, exceptions , and brief adequately present the issues and positions of the parties.
120 NLRB No. 86.