NLRB v. Marcus Trucking Co.

• Decision Date: 26 January 1961
• Docket Number: No. 118,Docket 26336.,118
• Citation: 286 F.2d 583
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MARCUS TRUCKING CO., Inc., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

286 F.2d 583 (1961)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MARCUS TRUCKING CO., Inc., Respondent.

No. 118, Docket 26336.

United States Court of Appeals Second Circuit.

Argued December 9, 1960.

Decided January 26, 1961.

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Melvin Welles, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles and Robert Sewell, Attys., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

William Biederman, New York City, (Harris J. Klein and Irving Klein, New York City, of counsel), for respondent.

Before CLARK, WATERMAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

This petition for enforcement brings before us another aspect of the N.L.R.B. "contract-bar" rule, which has recently concerned us in Local 1545, United Brotherhood of Carpenters and Joiners v. Vincent, 1960, 286 F.2d 127, and in N. L. R. B. v. Lundy Manufacturing Corp., 1960, 286 F.2d 424. In Local 1545 a union claimed the rule prevented the Board from ordering an election; in Lundy an employer urged that it precluded the Board from holding him guilty of an unfair labor practice for discouraging another union during the period of the contract bar. Here it is the Board that relies on the rule; it contends that it was an unfair labor practice for an employer to recognize another union during the protected period. Although not without some misgivings, we uphold generally the Board's determinations of fact and of law. Consequently, we enforce its order, but with modifications we shall discuss.

I. The Facts.

Respondent, Marcus Trucking Company, having its garage at Monroe, N. Y., transports milk and milk products in New York and New Jersey. In July, 1956, it became a member of the Dairy Transport Association, a New York membership corporation, one of whose functions is to represent members in labor matters; respondent executed a document appointing the Association its attorney-in-fact for such matters. Thereupon the Association and Local 770, I.B. T., which had been recently certified as exclusive bargaining representative of Marcus' drivers, extended a 1955 contract to cover them.

The 1955 contract was to terminate July 31, 1957. On May 29, 1957, the Association held a meeting of its members, including Marcus. The members voted to dissolve the existing powers of attorney, but appointed a committee to negotiate a new labor contract. New powers of attorney were sent to the members; Marcus signed such a power, but claimed this not to have been effective since it called for an acceptance by the Association which did not occur. Per contra the General Counsel contended the dissolution of the earlier power was ineffective as a revocation because the power provided that revocation could only be made by registered mail not later than December 31 of any year, and also because respondent had agreed to keep the power alive until May 31, 1958, and the action taken on May 29, 1957 did not bind the Association as a consent to revocation since it was a vote by the members rather than the directors, see N. Y. General Corporation Law, McK.Consol. Laws, c. 23, § 27.

Bargaining between the Association's committee and three union officials, Decker, Hickman and Hickey, took place in June, July and August, 1957; Charles H. Marcus, originally vice president and later president of respondent, was not a member of the committee but attended some sessions as an observer. Dissatisfied with lack of progress, Local 770 struck the members on August 20; the strike was shortly ended by an oral agreement with the committee as to the major provisions of a new contract. Respondent thereupon adopted wage rates and overtime provisions in accordance with the oral agreement, although Charles Marcus told the President of the Association he did not like these. Negotiations for the contract went on into November, 1957, and January, 1958.

On January 20, 1958, the Association and Local 770 signed a memorandum agreeing on a draft previously submitted by the union together with a number of changes outlined in the memorandum. At some time between January 28 and February 3, 1958, the Association and Local 770 executed a contract for the period August 1, 1957-July 31, 1960, embodying this agreement. Suffixed to the contract was a legend "Dairy Transport Association Inc.'s authority to execute the foregoing agreement on behalf of this organization is confirmed," with spaces for the signatures of the members, including respondent. A quorum failed to attend a meeting of the Association called to obtain such signatures, and the spaces provided for them remained blank. The President of the Association testified the negotiating committee's authority was limited to a certain increase in wages, which the agreement exceeded. Meanwhile, on January 9, 1958, respondent wrote the Association "revoking our power of attorney with the Association, if any did exist at any time prior to this writing." The General Counsel claimed this was ineffective both because of the contract provision cited above and because it was not sent by registered mail before December 31, as the first power of attorney required.

A sore point with Marcus, both before and after January 20, 1958, was the union's demand for time and a half for more than 10 hours per day; Charles Marcus complained repeatedly to his drivers that he was unable to bid competitively against another trucker whose contract, with Local 602, I.B.T., did not contain such a provision. Late in April or early in May, 1958, a large majority of respondent's drivers held a meeting, chaired by Meisner, the shop steward; they instructed Meisner to see whether one of four I.B.T. locals, including 602, would take them. There is no evidence that respondent stimulated the meeting, save as this may have been done indirectly by Charles Marcus' complaints as to the effect of the overtime payments on respondent's business. Petitions for transfer to Local 602 were signed by 35 of respondent's 46 drivers.

Local 770 responded by removing Meisner as shop steward, appointing Bedford in his stead, and calling a strike on the night of May 30. The strike was abortive. Bedford was the only employee who joined the protesting group that formed outside respondent's garage; all the other employees continued to work. However, during the early morning hours, Charles Marcus drove to Middletown, N. Y., to confer with the Local 770 officials. They presented him with a contract covering his seven mechanics; this he refused to sign. They also requested him to sign the confirmation of the contract negotiated by the Association with respect to the drivers. The testimony is in complete accord that he did not sign but in the sharpest discord as to why. Charles Marcus testified he declined because of the petitions for transfer to Local 602, Hickman and Decker that he did so because "I have got a contract with Local 770, and there is no reason why I should sign this one." On Charles Marcus' return to Middletown, the 602 representative demanded he sign a contract with a union security clause but without the offending overtime provision, threatening a really effective strike if he did not. Respondent complied.

The only other facts required to be stated at this point relate to Bedford. He was on vacation from June 15 to June 21, 1958. On returning he found he had been assigned a run to New York instead of upstate where he had previously been. Calling Charles Marcus to complain, Bedford was told, as he testified, "You have lost your seniority * * * Because you are not a member of Local 602. And you have been — they have told me to drop you to the bottom of the list."

II. The Board's order.

Upon this record the Board, on March 11, 1960, ordered Marcus to cease and desist from recognizing Local 602 and from giving effect to the contract of May 30, 1958, unless and until Local 602 is certified by the Board as the representative of Marcus' drivers; to recognize Local 770 as such representative and give effect to the collective bargaining agreement until July 31, 1960; to "restore to its employees * * * the system of overtime pay existing prior to May 30, 1958, and make such employees whole for any loss of earnings they may have suffered by reason of the elimination of such overtime pay"; to reimburse its employees the dues, fees and assessments they have paid Local 602; and to restore Bedford to his prior seniority status.

The Board does not charge that Marcus pressured its employees into transferring to Local 602, and the evidence would not support such a charge. The claim is rather that when an employer who has made a valid collective bargaining agreement with a Board-certified union recognizes another union during the period of "contract-bar" protection — now two years, Pacific Coast Assn. of Pulp & Paper Manufacturers, 121 N.L. R.B. 990 (1958) — he thereby violates various subsections of § 8(a) of the Act enumerated hereafter. 29 U.S.C.A. § 158(a).

III. The Board's determination that respondent entered into a new contract with Local 770.

Before we reach the question of law thus presented, we must consider the indispensable premise, namely, that respondent became bound to the three year contract between the Association and Local 770 signed in the winter of 1958. The Examiner's finding to this effect seems to have rested on four bases: (1) the alleged ineffectiveness of respondent's revocations of the 1956 power of attorney; (2) respondent's alleged failure to comply with Board-prescribed "tests for withdrawing effectively from multi-employer bargaining"; (3) apparent authority of the negotiating committee; and (4) conduct of respondent evidencing an intention to be bound — the two latter being grouped somewhat misleadingly under the rubric of "ratification." The Board stated in a footnote that it was unnecessary to pass...