NLRB v. Miranda Fuel Co.

• Citation: 284 F.2d 861
• Decision Date: 28 November 1960
• Docket Number: No. 70,Docket 26232.,70
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIRANDA FUEL CO., Inc., Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 553, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

284 F.2d 861 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIRANDA FUEL CO., Inc., Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 553, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent.

No. 70, Docket 26232.

United States Court of Appeals Second Circuit.

Argued November 2, 1960.

Decided November 28, 1960.

Herman M. Levy, Atty., National Labor Relations Board, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Asso. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, Atty., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

Jack Last, New York City (Stanley B. Blumberg, of Cohen & Weiss, New York City, on the brief), for respondent Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.

Before SWAN, CLARK, and MEDINA, Circuit Judges.

CLARK, Circuit Judge.

The National Labor Relations Board petitions for enforcement of an order enjoining respondents Miranda Fuel Co., Inc., and Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, from giving effect to any arrangement which delegates to the Union exclusive control over the seniority status of the Company's employees. The order further directs the Company to restore Michael Lopuch, an employee and a member of the respondent Union, to the seniority position of which he had been deprived at the request of the Union. The Board has found that the Company, by acquiescing in the Union's insistence that Lopuch lose his seniority, violated § 8(a) (3) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(a) (3) and (1), and that the Union violated § 8(b) (1) (A) and (2) of the Act, as amended, 29 U.S.C. § 158(b) (1) (A) and (2).

Lopuch's loss of seniority arose in the following manner. In April 1957, Lopuch had been employed as a truck driver by the Company, a seller of fuel oil, for approximately eight or nine years. He then enjoyed the eleventh position on a seniority list of approximately twenty-one. About the beginning of April 1957, Lopuch spoke to Jerry and Fred Miranda, chief officers of the Company, and told them he wished to spend the summer in Ohio and do some work for his sister-in-law, whose husband had just died. The period from April 15 to October 15 was a slack season in the fuel oil business, and was so designated in section 8 of the collective bargaining agreement between the Union and the Company, quoted below. Lopuch obtained permission to leave at the close of business on Friday, April 12, 1957. He told his employers he would return by October 12. In mid-October, however, Lopuch got sick, and he did not return to work until October 30. The illness was evidenced by a doctor's certificate, and the late return was excused by the Company.

Shortly after his return, the Union, at the urging of various of its members, demanded that the Company reduce Lopuch to the foot of the seniority list, on the ground that his late return violated section 8 of the collective bargaining agreement. The relevant portion of that section provides:

"During the slack season, April 15 to October 15, any employee who according to seniority would not have steady employment shall be entitled to a leave of absence and maintain his full seniority rights during that period. Any man so described must report to the Shop Steward not later than 8 A. M. on October 15 and sign the seniority roster in order to protect his seniority, and the Employer agrees to accept the certification of said Shop Steward as to availability of such men when called by the Employer. If October 15 falls on a Saturday or Sunday, the reporting day shall be the next work day. Any man failing to report as above specified shall forfeit all seniority rights."

When the Union discovered that Lopuch's failure to return to work on time was because of an excused illness, it abandoned the claim that he be dropped from seniority because of a late return to...