05/18/67 Truck Drivers and Helpers

1967.CDC.0000102 (1967) | Cited 0 times | D.C. Circuit | May 18, 1967

Before the second election was held on December 2, the Company actually closed the Abbey Street terminal and shifted the work to the Airport Drive terminal. Although the two groups of employees were now working side by side, the Company decided to let each continue under the terms of its contract until the representation issue was settled. The Board found that during this period the Company discriminated between the Teamsters and UTE in affording overtime work, and that the Company brought the results of this discrimination to the attention of the employees as an incentive to vote for UTE in the impending election. When that election was held, UTE again prevailed by a very narrow margin. Again the Teamsters objected, and again the election was set aside. The unfair labor practice charges against UTE and the Company derived, respectively, from the conduct described above prior to the first and second elections. II.

1. The letter concluded: "Even if seniority is dovetailed, you know a majority of UTE employees will go to the bottom of the board should the Teamsters win. "When the Union of Transportation Employees wins the election, the Teamsters Union will have no bargaining rights and no say-so at all. You can rest assured that the Union of Transportation Employees will never agree that its members will go to the bottom of any seniority list and that your seniority will be respected and protected against all others. Do not be fooled by long, legal, complicated letters. This is a plain statement of the position of the Union of Transportation Employees."

2. Compare Cox, The Duty of Fair Representation, 2 Vill. L. Rev. 151 (1957) with Albert, NLRB-FEPC, 16 Vand. L. Rev. 547 (1963). See also Sovern, The National Labor Relations Act and Racial Discrimination, 62 Colum. L. Rev. 563 (1962); Sovern, Race Discrimination and the National Labor Relations Act: The Brave New World of Miranda, N.Y.U. 16th Annual Conference on Labor 3 (1963); Summers, Individual Rights in Collective Agreements and Arbitration, 37 N.Y.U.L. Rev. 362 (1962); Wellington, Union Democracy and Fair Representation: Federal Responsibility in A Federal System, 67 Yale L. J. 1327 (1958); Comment, Discrimination and the NLRB, 32 U. Chi. L. Rev. 124 (1964); Comment, Racial Discrimination and the Duty of Fair Representation, 65 Colum. L. Rev. 273 (1965); Note, Administrative Enforcement of the Right to Fair Representation, 112 U. Pa. L. Rev. 711 (1964).

3. 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173 (1944). E.g., Syres v. Local 23, Oil Workers, 350 U.S. 892, 100 L. Ed. 785, 76 S. Ct. 152 (1955).

4. Miranda Fuel Co., 140 NLRB 181 (1962).

5. In a concurring opinion in which the Chief Justice and Mr. Justice Harlan joined, Mr. Justice Fortas stated that "a claim that the union has breached its statutory duty of fair representation . . . is a claim of unfair labor practice . . ." 87 S. Ct. at 922 (1967).

6. Cargo Handlers, Inc., 159 N.L.R.B. 321, 159 NLRB No. 17, 62 LRRM 1228 (1966); Independent Metal Workers Union, Local 1 (Hughes Tool Co.), 147 NLRB 1573 (1964); Local 1367, International Longshoremen's Ass'n (Galveston Maritime Ass'n), 148 NLRB 897 (1964).

7. Cf. Mount v. Grand Int'l Brotherhood of Locomotive Eng'rs, 226 F.2d 604 (6th Cir. 1955), cert. denied, 350 U.S. 967, 76 S. Ct. 436, 100 L. Ed. 839 (1956); Hargrove v. Bhd. of Locomotive Eng'rs, 116 F. Supp. 3 (D.D.C. 1953); see also O'Donnell v. Pabst Brewing Co., 12 Wis. 2d 491, 107 N.W. 2d 484, 90 A.L.R.2d 995 (1961).

8. Cf. Kahn, Seniority Problems in Business Mergers, 8 Ind. & Lab. Rel. Rev. 361, 378 (1955); Mater & Mangum, The Integration of Seniority Lists in Transportation Mergers, 16 Ind. & Lab. Rel. Rev. 343 (1963); Blumrosen, The Worker and Three Phases of Unionism: Administrative and Judicial Control of the Worker-Union Relationship, 61 Mich. L. Rev. 1435, 1482 (1963).

9. Cf. the Supreme Court's elucidation of not only the duty imposed upon the union but also the discretion which must be accorded it in Ford Motor Co. v. Huffman, 345 U.S. 330, 337-39, 97 L. Ed. 1048, 73 S. Ct. 681 (1953). In the related context of negotiations resulting in preferential seniority rights for some veterans but not for others, the Court said: That the authority of bargaining representatives . . . is not absolute is recognized in Steele v. Louisville & N.R. Co. . . . Their statutory obligation to represent all members of an appropriate unit requires them to make an honest effort to serve the interests of all of those members, without hostility to any. . . . The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion. Compromises on a temporary basis, with a view to long-range advantages, are natural incidents of negotiation. Differences in wages, hours and conditions of employment reflect countless variables. Seniority rules governing promotions, transfers, layoffs and similar matters may, in the first instance, revolve around length of competent service. Variations acceptable in the discretion of bargaining representatives, however, may well include differences based upon such matters as the unit within which seniority is to be computed, the privileges to which it shall relate, the nature of the work, the time at which it is done, the fitness, ability or age of the employees, their family responsibilities, injuries received in course of service, and time or labor devoted to related public service, whether civil or military, voluntary or involuntary.

10. The Board may legitimately measure other proposals for handling the problems occasioned by merging the seniority rosters by a dovetailing standard, as experience has demonstrated it generally to be an equitable and feasible solution in other situations. See, e.g., Humphrey v. Moore, 375 U.S. 335, 347, 11 L. Ed. 2d 370, 84 S. Ct. 363 (1964) and authorities cited in footnote 10; O'Donnell v. Pabst Brewing Co., 12 Wis. 2d 491, 107 N.W. 2d 484 (1961), cf. Kent v. CAB, 204 F.2d 263 (2d Cir.), cert. denied, 346 U.S. 826, 74 S. Ct. 46, 98 L. Ed. 351 (1953); Kahn (supra) at 373-78. The condemnations of refusal to dovetail are legion. E. g., Commercial Telegraphers' Union v. Western Union Telegraph Co., 53 F. Supp. 90, 96 (1943); In re City of Green Bay, Wisconsin, 44 Lab. Arb. 311, 315 (1965); Blumrosen, Union-Management Agreements Which Harm Others, 10 Journal of Public Law 345, 371 (1961). Apparently most employees have come to accept dovetailing as the preferred procedure when mergers occur. In discussing the fair representation duty in a hypothetical merger situation, Professor Wellington has concluded that "where company A acquired company B, and the B employees were treated as new employees for the purpose of seniority, the union would be in a breach of duty. Although position on the seniority ladder is subject to revision, bargaining for its total elimination seems clearly outside the expectation of the employee community. Some sort of dovetailing would accordingly be required to approximate community expectation." Wellington, Union Democracy and Fair Representation: Federal Responsibility in a Federal System, 67 Yale L.J. 1327, 1360-61 (1958).

11. Cf. Professor Blumrosen's proposal that before a union abridges seniority rights it be required to demonstrate "not only that it exercised an honest judgment but also that it made an appropriate decision, one based on objective factors, which would persuade a rational decision-maker, and not compelled by the internal political make-up of the union." Blumrosen, supra note 8, at 1482. Compare NLRB v. Wheland Co., 271 F.2d 122 (6th Cir. 1959).

12. It is by no means clear that all campaign promises which, if effected, might arguably constitute unfair labor practices are required to be treated by the Board as unfair labor practices. The setting aside of the election may be an adequate remedy without pressing the matter further. Pledges made in the full flush of election campaigning are notoriously fragile and represent a form of speech which frequently falls short of action. We note, however, that this record shows the Board as having already set aside two elections at Airport Drive, and the representation dispute remains unresolved.

13. Professors Cox and Bok have suggested that the soundest course would be to confine Section 8(b)(1) to three classes of cases: "(1) cases of physical violence and intimidation, including mass picketing in connection with an organizational strike; (2) cases involving the deliberate deception of individuals as distinguished from allegedly false propaganda and general promises or accusations; (3) threats to use the power of the union to take economic reprisals against specific individuals if they fail to join, as distinguished from the use of bargaining power in arranging terms and conditions of employment." Cox & Bok, Cases and Materials on Labor Law 330-31 (1962). At the time their suggestions were made, unfair representation had not been recognized as an unfair labor practice. Although it may in future seem reasonable to add to their formulation a fourth classification of cases where a union had threatened to violate its duty of fair representation, the threats to refuse seniority privileges to the Teamsters here would seem to approximate the third category suggested, although of course a Teamster's seniority would be threatened even if he did vote for UTE.

14. "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of 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 as authorized in section 8(a)(3)." 61 Stat. 140, 29 U.S.C. § 157 (1964).

15. An employer's promises of benefit are sometimes at least as efficacious as threatened detriment in discouraging union activity, and have been found to be violative of Section 8(a)(1). E.g., Joy Silk Mills v. NLRB, 87 U.S. App. D.C. 360, 367, 185 F.2d 732, 739 (1950), cert. denied, 341 U.S. 914, 95 L. Ed. 1350, 71 S. Ct. 734 (1951). In framing Section 8(b)(1), it was Congress' intention to impose upon unions the same restrictions which the Wagner Act imposed upon employers with respect to violations of employee rights. International Ladies' Garment Workers' Union, AFL-CIO, v. NLRB, 366 U.S. 731, 738, 6 L. Ed. 2d 762, 81 S. Ct. 1603 (1961). A union's promise of benefit may be as disruptive of free choice as a threat, and may exert no less restraining influence on that choice. Cf. NLRB v. Gilmore Indust., Inc., 341 F.2d 240 (6th Cir. 1965); NLRB v. Gorbea, Perez & Morell S. en C., 328 F.2d 679, 680 (1st Cir. 1964); Sewell Mfg. Co., 138 NLRB 66, 70 (1962). The potential for disruption is all the stronger when the union offers as an inducement that it will violate a statutory duty.

16. The Teamsters' contract provided for overtime pay after 8 hours a day, the UTE contract after 10. The Teamsters' contract, unlike the UTE contract, called for overtime pay for work on the sixth day and doubletime for work on the seventh. Under the Teamsters' contract an employee was entitled to a 3-week vacation after 11 years of service and 4 weeks after 16 years, whereas under the UTE contract 3 weeks were allowed only after 12 years and no provision was made for a 4-week vacation. The Teamsters' contract also provided superior employer-supported pension, health and welfare plans, and employee cost-of-living allowances.

17. The possibility that considerations like these may have significantly affected the ultimate choice of the bargaining representative is evident from the figures. At the Abbey Street terminal there had been approximately thirty employees, and all were Teamsters both before and after the merger. At the Airport Drive terminal were approximately fifty employees, all of whom were UTE members both before and after the merger. At the first election 37 ballots were cast for the Teamsters, 39 for UTE, and 2 were challenged. At the second election 36 ballots were cast for the Teamsters, 38 for UTE, 1 for neither union, and 6 were challenged.

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