A & H Truck Line, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1976

226 N.L.R.B. 1153 (N.L.R.B. 1976)

A & H TRUCK LINE 1153
A & H Truck Line, Inc. and Johnnie A. Engler. Case
9-CA-9685
November 24, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
The issues concern whether Respondent has discriminato-
rily refused to transfer Johnnie A. Engler from its Ev-
ansville, Indiana, location to its Paducah, Kentucky, loca-
tion in order to unlawfully encourage membership in
Teamsters Local 236.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the General
Counsel and Respondent and have been considered.
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:
On April 20, 1976, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and the Respondent
filed a brief in support of the Decision of the Admin-
istrative Law Judge and in opposition to the excep-
tions of the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
i The General Counsel has in effect excepted to certain credibility find-
ings made by the Administrative Law Judge concerning findings that the
Respondent had an established practice or policy of not transferring drivers
between terminals represented by different local unions It is, of course, the
Board's established policy not to overrule an Administrative Law Judge's
resolutions with respect to credibility unless the clear preponderance of all
of the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362
(C A 3, 1951) We have carefully examined the record and find no basis for
reversing his findings
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on February 4, 1975, at Paducah, Kentucky.
The charge and amended charge were filed on Septem-
ber 29, 1975, and November 4, 1975, respectively. The
complaint in this matter was issued on November 25, 1975.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and ad-
missions therein.
A & H Truck Line, Inc., the Respondent, is an Indiana
corporation, engaged in business in several States of the
United States as a common carrier operating over desig-
nated routes, under authorization from the Interstate Com-
merce Commission, from its Evansville and Paducah facil-
ities, the locations involved herein. During a representative
12-month period, Respondent received revenues in excess
of $50,000 for services performed as a common carrier in
the interstate transportation of goods and commodities.
As conceded by Respondent and based upon the fore-
going, it is concluded and found that Respondent is, and
has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED'
Local Union No. 215 and Local Union No. 236, affiliat-
ed with the International Brotherhood of Teamsters,
Chauffeurs and Warehousemen and Helpers of America
are, and have been at all times material herein, labor orga-
nizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Findings; Supervisory Status2
At all times material herein, the following named per-
sons, employed by Respondent in the position set opposite
their respective names, are, and have been, supervisors ac
defined in Section 2(11) of the Act and agents of Respon-
dent acting on its behalf:
Lawrence Mattingly-Executive Vice President
Richard Young-Director of Safety and Driver Super-
vision
B. Background
1. A & H Truck Line, Inc., Respondent , is, and has been
for many years, engaged in business in several States of the
1 The facts are based upon the pleadings and admissions therein
Z The facts are based upon the pleadings and admissions therein
226 NLRB No. 179
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States as a common carrier. It appears that it has
had for many years a number of terminals and that at the
present it has 17 terminals , including terminals at Ev-
ansville , Indiana, and Paducah , Kentucky . Respondent ap-
pears to have had for many years a large employee comple-
ment, and it now has a total of approximately 700 drivers
(city and over-the-road) and maintenance employees. At
the present 390 to 400 employees of Respondent are em-
ployed in the category of city drivers, 120 to 125 employees
are employed in the category of over-the-road drivers, and
the remainder of its 700 employees are employed as main-
tenance employees . Respondent's general business office is
located at its Evansville terminal , its largest terminal. Ap-
proximately 96 of Respondent's over-the-road drivers are
employed at the Evansville terminal . The remainder of the
over-the-road drivers are located at 10 of the other 16 ter-
minals. The Respondent employs 1 over -the-road driver at
Paducah , Kentucky , and employs 20 to 22 city drivers at its
Paducah terminal.
2. The Respondent has had a collective -bargaining rela-
tionship with various Teamsters locals for a number of
years. The details , however , as to such relationship or col-
lective -bargaining contracts governing such relationship
have not been specifically presented.
It is clear and the facts reveal that Respondent, Local
236, Local 215, and apparently a number of other Team-
sters locals are parties , along with other employers and
other Teamsters locals, to a current collective -bargaining
agreement known as the national freight agreement This
agreement sets forth that the agreement in effect creates a
multiemployer-multiunion collective-bargaining unit for
the employees in the bargaining unit defined therein. Said
bargaining unit includes employees who are in the catego-
ries of ( 1) city and (2) over-the-road drivers.
It is clear from the testimony of witnesses and an exami-
nation of said contract that the national freight agreement
governs the employer-local unions-employee relationship
as to city drivers and over-the-road drivers at the Paducah
and the Evansville terminals . It is clear from the stipula-
tions of the parties and the overall evidence that the parties
construe that Local 215 represents , as exclusive collective-
bargaining representative , all of the employees in the de-
scribed collective-bargaining unit in the national freight
agreement (said description including both city drivers and
over-the-road drivers ) who work within the geographic
area of the jurisdiction of Local 215, and that employees
are subject to typical union -security requirements. Simi-
larly, it is clear that Local 236 represents , as exclusive col-
lective -bargaining representative , such employees who
work in such categories within the geographic area of the
jurisdiction of Local 236 , and that employees are subject to
typical union -secunty requirements.
It is clear that the employees covered by the national
freight agreement who work for Respondent within the
geographical jurisdictional area of Local 215 either ( 1) con-
stitute a separate collective -bargaining unit which is
deemed to be a part of an overall multi-employer-multi-
union national bargaining unit, or (2) constitute a separate
and clearly identifiable part, on the basis of geography and
local representation , of a national bargaining unit.
3. The question of seniority rights and application and
determination thereof as regards Respondent 's Evansville,
Paducah , and apparently all other terminals , is largely gov-
erned by the national freight agreement and supplemental
agreements thereto. In major effect, employees enjoy "Ter-
minal" seniority rights Because of the nature of work re-
quirements , it appears that "city drivers" layoffs are de-
termined on the basis of the need at a local terminal and
that local terminal seniority is applied for such layoffs. It
appears that the assignment of over - the-road drivers to the
various terminals is done on the basis of need for drivers in
such terminals, that some terminals do not have over-the-
road and that most of the over-the-road drivers are as-
signed to Evansville so as to allow flexibility in handling
the needs of all the terminals . As a result when there is a
need for a layoff, because of the built-in flexibility, the
overall needs for all terminals are best met by initial layoffs
being made at Evansville . This is not a question of compa-
ny or multiterminal seniority . Terminal seniority is used as
to the layoffs at Evansville or at other terminals.
As indicated , the national freight agreement sets the
guideline for determination of problems as regards senior-
ity when new companies are absorbed . In such case, se-
niority is determined by Respondent and the involved
unions In merger cases, the contract requires that the se-
niority of employees in the "merged" companies be dove-
tailed into existing seniority. As to change of operations,
the shifting of jobs and employees from one terminal to
another , a joint area committee determines the ultimate
handling of seniority and establishment of seniority place-
ment. As to the establishment of "new branches ," compa-
ny seniority in bidding for jobs prevails. In the closing
branches, employees have first opportunity, on their com-
pany seniority basis, to bid for new openings.
4. The parties dispute whether Respondent has a policy
against the transferring of an employee from a job in an
area where the employees are represented by one union to
an area where the employees are represented by a different
union. It is undisputed that Respondent does not have a
written policy governing such type transfers excepting in a
limited manner as referred to in the national freight agree-
ment. The said agreement , as noted, has provisions regard-
ing employees bidding for openings pursuant to seniority
rights when branches are closed . The said agreement also
provides for the use of company seniority in the bidding
for new jobs.
Evidence was presented with respect to certain changes
in operations or transfers as having a bearing upon the
issue of whether Respondent had an unwritten policy
against transfers of employees from jobs in the geographic
jurisdictional area of one union to the geographic jurisdic-
tional area of another union. Such facts and evidence are
set forth as follows. (1) Such evidence reveals that in 1969,
1970, or 1971 Respondent acquired a trucking line called
Tennessee Cartage, that at such time an over-the-road
driver named Looney was domiciled in Princeton, Ken-
tucky, an area within the geographic jurisdiction of Local
215 of the Teamsters , that Looney 's job was, however, at
the Nashville, Tennessee , terminal, an area apparently
within the geographic jurisdiction of another Teamsters lo-
cal, that Respondent for a while had temporary control or
management , that at such time or later Looney transferred
A & H TRUCK LINE
his membership from Local 215 to the Nashville Local In
my opinion , this evidence merely reveals a transfer of
membership in a union and not a transfer of job In any
event the facts reveal that any change that was made ap-
pears consistent with contractual guidelines concerning the
merging of operations . (2) The parties litigated the question
of a transfer of an employee named Bolin from Indianapo-
lis, where employees were represented by an Indianapolis
Teamsters local to Terre Haute, where employees were rep-
resented by another local. Engler testified to the effect that
Bolin had prior thereto transferred from Evansville, Indi-
ana. No details otherwise were presented as to such trans-
fer from Evansville to Indianapolis . As to Bolin 's transfer
from a job at Indianapolis to Terre Haute, the evidence
reveals that Bolin lived in West Terre Haute at the time of
the transfer . It appears that there was only one over-the-
road driver position at Terre Haute. It would not appear
therefore that a problem existed as regards the dovetailing
of Bolin 's seniority into the existing seniority board at Ter-
re Haute.3 The evidence is sparse and practically nonexis-
tent otherwise concerning the circumstances of the transfer
of Bolin from Indianapolis to Terre Haute The evidence
does not reveal whether there was or was not a reasonable
basis to believe that the local union at Terre Haute would
have reason to represent local area unit employees in con-
tention for the opening involved. There is no evidence that
any employee , in any area represented by local Teamsters
unions as part of the unit covered by the national freight
agreement , filed a greivance contending a right to bid on
such job.' However , there appears to have been some
grumbling by some employees in the Evansville local (No.
215 of the Teamsters ). It appears that after the transfer of
Bolin from Indianapolis , Indiana, to Terre Haute, Indiana,
Respondent , perhaps because of questions by some union
local or the grumbling of employees , filed a change of op-
erations and presented the same for approval to the joint
area committee pursuant to the national freight contract.
(3) Evidence was presented with respect to the acquisition
of the Hargis Truck Lines in 1954 and the negotiation by
Respondent with several local unions over the placement
of certain drivers in their respective geographic jurisdic-
tional area of the bargaining unit and the establishment of
seniority . It appears that the acquisition of such truck line
resulted in an overage of drivers at certain locations and
the need for readjustment of placement of jobs. Essentially,
the matter seems to have been handled similar to the
method for handling a change in operation excepting there
occurred negotiations with the respective local unions (4)
Evidence was also presented with respect to what appears
to have been a change in operation (change of jobs from
one location to another) involving transfers of over-the-
road drivers from Evansville, Indiana, to Owensboro, Ken-
tucky, and from Evansville , Indiana, to a town called Jas-
3It appears that "seniority " is maintained by separate classification
Thus, city drivers have a different seniority from over - the-road drivers
The national freight agreement does not appear to present guidelines for
the handling of such a transfer The supplemental agreements to such agree-
ment are not in evidence in this case The evidence further does not reveal
that Respondent has accorded , as a matter of right , the opportunity to bid
on a seniority basis for such jobs , excepting in situations wherein Respon-
dent , as a matter of need , decided to do so
1155
par. These transfers were handled on a voluntary basis and
were worked out between Respondent and Local 215, the
representative of employees in the areas involved.
5. In late February 1975, Engler spoke to Richard
Young, Respondent's director of safety and driver supervi-
sion , about his desire to transfer from his over -the-road
driver's job at Evansville, Indiana, to the over-the-road
driver's job at Paducah, Kentucky, when the incumbent
driver retired. Young told Engler in effect that this could
not be done because two unions were involved . (Local 215
of the Teamsters at Evansville, Indiana, and Local 236 of
the Teamsters at Paducah, Kentucky.) Engler thereafter
wrote Respondent 's executive vice president, Mattingly
Mattingly replied by letter, dated April 10, 1975, and indi-
cated his understanding that the alternatives available to
Respondent for the possible filling of the over-the-road
driver position at Paducah , Kentucky , if it came open were
(1) the hiring of a new man from the Paducah area or (2)
handling the matter on a voluntary transfer basis with
posting and bidding for the job based on seniority. Mat-
tingly indicated that he believed the latter preferable since
there were drivers on furlough , and additional furloughs
might be necessary . Later, Engler also had conversation
with Respondent 's vice president of operations , Les Aber-
nathy. Abernathy also told Engler that a problem concern-
ing a possible transfer to the Paducah, Kentucky, driver's
slot was the fact that two unions (Local 215 and Local 236)
were involved in such transfer question.
Young credibly testified to the effect that he had told all
the drivers that he had hired that the policy was not to
transfer employees from jobs within the geographical juris-
diction of one local to the geographical jurisdiction of an-
other local Young and Mattingly credibly testified in com-
posite effect to the effect that there were practical reasons
for a policy against the transfer of employees from jobs in
a geographical jurisdiction of one union to a job in a geo-
graphical jurisdiction of another union . Thus, there were
problems as to where to place employees on the seniority
lists, problems about having to post such jobs for bids, and
problems created by the timing requirement needed to in-
sure that all interested employees could bid.5
Considering all of the above, I am persuaded that Re-
spondent had a practice or policy concerning the transfer
of work between the geographical jurisdictional area of the
bargaining unit of one union to another as follows. Re-
spondent had a general policy or practice against such
transfers because of the administrative problems relating to
posting and to avoid argument with the Local Union over
the rights of the employees to retention of work in their
geographical area. Where emergency or specific need for
5 Although there is evidence in the case to reveal that Local 236's repre-
sentative told Young in late June or thereafter that, in effect , the Local
wanted a local area man to get the opening, there is no evidence that such
communication had been made at the time Young initially told Engler of
the problem concerning two unions and the possible job opening The evi-
dence indicates , however . that there were layoffs of unit employees in the
geographical jurisdictional areas of both Local 215 and 236 It appears rea-
sonable to believe that Respondent was aware , since there were such layoffs,
that Local 236 would contend for retention of work for bargaining unit
employees in its geographical jurisdictional area It would appear reason-
able that Respondent would be aware at the time of any work shortage that
the Local Union involved would be representing such employees as to such
interest in the retention of work
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent outweighed these problems, Respondent con-
sidred that it could make such transfers and would, if nec-
essary, exercise such option. I am persuaded that the limit-
ed number of instances of change of operations and
voluntary transfers left Vice President Mattingly with the
belief that Respondent would exercise its choice of alterna-
tives in a prudent manner and with regard to a view of
aiding in decreasing the overall question of layoffs. I am
also convinced that Young, faced with the problem of
transfers more directly, correctly determined from past ex-
periences that the use of voluntary transfer, at least for the
convenience of the employee, was the exception and not
the rule, and that the practice and policy was against the
use of such voluntary transfers. Thus, I am persuaded that
Respondent had a general but not inflexible policy against
the voluntary transfer of employees from the geographical
area serviced by one union to a geographical area serviced
by another local union.
C. The Alleged Discrimination
The General Counsel contends and Respondent denies
that on or about September 12, 1975, Respondent discrimi-
natorily refused to transfer Johnnie Engler from its Ev-
ansville , Indiana, location to its Paducah, Kentucky, loca-
tion in order to unlawfully encourage membership in
Teamsters Local 236.
Engler has been employed by Respondent as an over-
the-road driver since August 12, 1959, at Respondent's Ev-
ansville terminal . Such terminal is within the geographical
jurisdictional area of Respondent's employee complement
covered by the national freight agreement represented by
Local 215 of the Teamsters. Respondent's employees cov-
ered by such contract are subject to union-security condi-
tions of employment. Engler is and has been a member of
Local 215 of the Teamsters. At some point of time in
Engler's employment by Respondent, Engler has served as
a union steward for Local 236. There is absolutely no evi-
dence to reveal any hostility at any time toward Engler by
Respondent, by Local 215, or by Local 236 of the Team-
sters because of his union or protected concerted activities
or attitude concerning Local 215 or Local 236 or Respon-
dent. Nor is there any evidence to reveal that Respondent
or Local 236 has at any time had any reason to believe that
Engler would create any problem by his union or protected
concerted activities if he (Engler) were transferred to Padu-
cah.
At some point of time after Engler commenced employ-
ment with Respondent at the Evansville terminal, appar-
ently recent in point of time, Engler married a widow who
had a 15-year-old son. Prior to Engler's marriage, his new
wife and son had lived at Burna, Kentucky. Because En-
gler liked the part of country where Burna is located, and
because Enlger considered the Burna, Kentucky, environ-
ment better for his new son, Engler moved to Burna, Ken-
tucky, but has continued to work out of Respondent's Ev-
ansville terminal.
Burna, Kentucky, is located near Paducah, Kentucky,
where Respondent has another terminal. Respondent's em-
ployees at Paducah, Kentucky, are within that geographi-
cal area of the collective-bargaining unit of Respondent's
employees covered by the national freight agreement de-
fined as the geographical jurisdictional area of Local 236 of
the Teamsters. As previously indicated , Respondent's em-
ployees at Evansville, Indiana, are within the geographical
area of the collective-bargaining unit of Respondent's em-
ployees covered by the national freight agreement defined
as the geographical jurisdictional area of Local 215 of the
Teamsters.
The facts are clear that in early 1975 Engler was interest-
ed in transferring from his over-the-road driver position at
the Evansville terminal to a similar position at the Paducah
terminal so as to be closer to his home in Burna , Kentucky.
It appears that Engler had made this interest known to the
one over-the-road driver at the Paducah terminal. The
over-the-road driver at the Paducah terminal was an em-
ployee named Archie Harris. Toward the latter part of
February 1975, Harris told Engler that he (Harris ) was re-
tiring in July 1975 and suggested that, if Engler were inter-
ested in making a transfer to Paducah, he should start
making preparations. Engler then contacted Richard
Young, Respondent's director of safety and driver supervi-
sion, and asked whether it would be possible for him to be
transferred to the Paducah terminal . Young told Engler in
effect that there was no way possible to do so because there
were two locals (unions) involved
Apparently a few days later, on March 5, 1975, Engler
wrote Lawrence Mattingly, Respondent's executive vice
president, and requested a transfer from the Evansville ter-
minal to the Paducah terminal.
On April 10, 1975, Mattingly wrote a letter to Engler as
follows:
April 10, 1975
PERSONAL AND CONFIDENTIAL
Mr. Johnnie A. Engler
Road Driver
Evansville, Indiana
Dear Mr. Engler
My apologies for the delay in answering your letter of
March 5, 1975. I appreciate your request was an im-
portant personal matter and an explanation on my
part is in order This time of the year I become quite
covered up with tax returns, budgets, etc.; and I
placed your letter along with some other files requiring
an answer. Unfortunately, I have just dug my way
down to this.
To my knowledge, we have not yet received a letter of
resignation from Mr. Archie Harris; and as a result
have not made any decisions concerning his replace-
ment. As I understand the alternatives available to us
with regard to hiring his replacement, they would be
as follows:
1. Hiring a new man from the Paducah area, or
2. Consider this a voluntary transfer and post same
on our road board and give everyone an opportuni-
ty to make this voluntary transfer, and our decisions
would be based solely on seniority.
At the moment, I would imagine we would follow the
second alternative since we have a number of drivers
furloughed, and our projections of business at this mo-
A & H TRUCK LINE
ment are that additional furloughs may be necessary.
Therefore, it would seem rather foolish to hire a new
employee when we have furloughed experienced peo-
ple.
As soon as we have received a formal letter of resigna-
tion from Archie, I will again contact you with our
final decision; and it would be my suggestion that if
you haven't heard from me by June 1 that you call my
office. Thank you for your interest.
Sincerely,
Lawrence R. Mattingly
Executive Vice President
Thereafter, on June 2, 1975, Mattingly wrote another
letter to Engler as follows:
June 2, 1975
PERSONAL AND CONFIDENTIAL
Mr. Johnnie A. Engler
Road Driver
Evansville, Indiana
My letter to you date April 10 was diaried ahead until
today, as I had hoped I could give you more definite
information regarding the replacement.
A check with the transportation department as recent
as this afternoon indicates that Archie is planning to
retire July 1 of this year.
Mr. Abernathy will, of course, make the decision as to
how his replacement is to be handled, and I would
suggest that if you have any questions, you might con-
tact him at an early opportunity.
Sincerely,
/s/ Lawrence R. Mattingly
Lawrence R. Mattingly
Executive Vice President
Apparently on June 3 or 10, 1975, Engler contacted Ab-
ernathy, Respondent's vice president for operations, con-
cerning his interest in a transfer and was invited to
Abernathy's office for a discussion concerning the transfer
possibilities. Shortly thereafter Engler went to Abernathy's
office for such discussion. Abernathy told Engler in effect
that he would like to see him get the transfer but that there
were two locals involved. Abernathy told Engler in effect
that one way of getting around the problem of two locals
was for Engler to resign at Evansville and be rehired at
Paducah. Engler told Abernathy in effect that he thought
this would be in conflict with prior company policy to the
effect that if an employee quit or was fired, the employee
was through. Abernathy indicated that this policy would
not affect a gentlemen 's agreement as discussed. Engler
then asked Abernathy about the effect of a resignation and
rehiring on his fringe benefits. Abernathy told Engler in
effect that he did not think there would be an effect on
fringe benefits but that he would check into it. Abernathy
told Engler that the over-the-road driver in Paducah would
not be replaced as long as there were over-the-road drivers
laid off in Evansville. Abernathy told Engler that he (Aber-
nathy) was taking a vacation and that he was turning the
matter concerning the replacement of the Paducah driver
over to Richard Young.
1157
In the meantime , in June, July, August, 1975, Dupree, of
the Paducah Local (Local 236), spoke to Young and told
Young that he did not want to give up the position of
over-the-road driver at Paducah, that he did not want the
position filled by anyone transferred in there because his
own people were laid off.
In July 1975, Dupree, or Local 236, had conversations
with James Elkins, terminal manager at Paducah, concern-
ing the filling of the over-the-road driver position. The de-
tails of exactly what was said are not revealed by the rec-
ord. After Respondent had decided on the replacement of
the over-the-road driver at Paducah and after charges had
been filed in this case, Elkins related to Mattingly the ex-
tent of the conversations with Dupree.6
Around July 25, 1975, Engler wrote Mattingly about his
conversation earlier with Abernathy, about not having
been contacted by Abernathy, and requested that Matting-
ly check into the matter of his requested transfer. Matting-
ly replied by letter to Engler on July 29, 1975, and told
Engler in effect that he had discussed the matter with Ab-
ernathy, that the ultimate decision had to lie with what was
best for the company. Said letter also indicated that the
considerations as to the Paducah over-the-road driver in-
volved not only Engler's request but also the establishing
of a policy for future requests.
On September 12, 1975, Richard Young spoke to Engler
and told him that he did not know that he (Engler) was still
interested in the transfer to Paducah. Engler told Young he
should have known of his interest, that everyone else in
management knew of his interest in the transfer. Young
told Engler that he had been delegated by Respondent to
tell him that the transfer was denied, that the over-the-road
driver position in Paducah would be filled from the Padu-
cah local. The over-the-road driver position was filled
around that time by the transfer of Floyd Rice, a city
driver at Paducah, from his city driver position to the over-
the-road driver position.
In addition to the foregoing, Young credibly testified to
the effect that he made the decision concerning the rejec-
tion of the requested transfer of Engler and determined the
selection of Rice as the over-the-road driver. Young also
credibly testified to the effect that his decision was moti-
vated by the policy of not transferring employees from one
local to another, and by the administrative problems and
costs thereto. Young testified to the effect that he was not
motivated by pressure from Local 236 and that he did not
receive pressure from Local 236 concerning the filling of
the over-the-road driver position. To the extent that this
testimony was intended to convey that the contentions of
Local 236's representatives were not a factor in consider-
ation as to the replacement of the over-the-road driver po-
sition, it is discredited and no weight given thereto.?
6 The General Counsel contends in effect that Mattingly's testimony re-
veals that such conversation between him and Elkins occurred before the
refusal to transfer Engler on September 12, 1975 A careful examination of
Mattingly's testimony reveals that Mattingly indicated that the Dupree-El-
kins conversation occurred before September 12, 1975, and that Elkins'
conversation with Mattingly occurred after September 12, 1975, and before
Mattingly spoke to a Board investigator
1 Evidence was also presented to indicate that the representative of Local
Continued
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Young also credibly testified to the effect that at some
point of time , apparently around September 12, 1975, En-
gler spoke to him about the possibility of his (Engler) re-
signing at Evansville and being rehired at Paducah. Young
credibly testified to the effect that he told Engler that this
could not be done.
Later Engler filed a grievance under the national freight
agreement and thereafter the grievance body decided that
Respondent had not violated the contract with regards to
the way it had filled the Paducah over-the-road driver posi-
tion.
Contentions ; Conclusions
The General Counsel contends that Respondent discrim-
inatorily refused to transfer Engler on September 12, 1975,
from a position as an over-the-road driver at Evansville,
Indiana, to a position as an over-the-road driver at Pa-
ducah , Kentucky , in order to unlawfully encourage mem-
bership in Teamsters Local 236 and to discourage member-
ship in Teamsters Local 215. Respondent contends that the
refusal to transfer Engler was not based on discriminatory
motivation but was based on a policy of not transferring
employees from one geographical area represented by one
local to a geographical area represented by another be-
cause of administrative problems as to such transfer. Re-
spondent also contends that the complaint should be dis-
missed because the Board should honor the determination
of the grievance procedure that the refusal to transfer En-
gler was lawful under the contract.
Considering Respondent 's contentions concerning its ar-
gument that the Board should dismiss the complaint be-
cause of the grievance procedure 's determination that the
refusal to transfer Engler was lawful under the contract, I
reject such contention.
It suffices to say that the evidence does not reveal that
such grievance determining body passed upon a question
of discriminatory consideration . Rather, the issue pre-
sented was the narrow issue of whether Respondent was
acting within or outside the contract in its actions. The
question of discriminatory consideration as bearing upon
transfers is not subsumed in such issue . Accordingly, a
grievance determination in such regard is not binding or
diapositive of the issues in this case.
Considering all of the facts , however, I am persuaded
that the evidence does not support the General Counsel's
complaint and contentions to the effect that the refusal to
transfer Engler on September 12, 1975, from Evansville to
Paducah was discriminatorily motivated and in violation
of Section 8(a)(3) and (1) of the Act.
In making the foregoing considerations and the conclu-
sions herein , I note that there is no evidence that Respon-
dent has had or has any hostility toward Engler because of
any of his union or protected concerted activities , nor that
Respondent has any reason to believe that Engler would be
a disruptive influence at Paducah because of his union or
215 had offered to agree to the transfer of Engler from Evansville to Padu-
cah, Kentucky This would appear consistent with Local 215 's interest in
alleviating the layoff problem in its area
8 Trygon Electronics, Inc 199 NLRB 404 (1972)
protected concerted activities . Nor is there any evidence to
reveal any hostility by either Local 215 or 236 of the Team-
sters toward Engler.
Although Respondent ' s officials and Local 236's repre-
sentative spoke in terms of two locals and of members
when discussing the question of replacement for the over-
the-road driver position at Paducah, such terminology
must be considered in the context of the facts . In this case
Local 215 or Local 236, as the case may be, is either (1) the
exclusive collective-bargaining agent of the employees cov-
ered by the national freight agreement , within a defined
geographical area coinciding with the respective local
union 's jurisdiction or (2) the designated representative of
the multiunion exclusive bargaining agent for the geo-
graphical area of the overall bargaining unit as defined by
the geographic jurisdictional area of the Union . Both local
unions are the beneficiaries of the union-security provision
of the master contract
In my opinion , it is clear that in real effect Respondent
was opposed to transferring Engler in part because it knew
that Local 236 was opposed to the transfer of Engler be-
cause local area employees of Respondent represented by
Local 236 were laid off. Respondent knew this and was
aware also of the administrative expenses and problems
concerning a transfer under such circumstances . I am per-
suaded that Respondent runs its business in a pragmatic
basis , that Mattingly initially was not aware that there was
a layoff factor as to employees represented by Local 236,
but was aware of layoffs of employees represented by Lo-
cal 215. I am persuaded that Young was aware of all such
problems . In my opinion , Respondent was aware of Local
236's interest in maintaining the integrity of the bargaining
unit, or section of the bargaining unit represented by it,
and of representing the employees who were laid off. Such
interest and consideration thereto on a geographical basis
does not constitute unlawful or discriminatory consider-
ation . I note further that there is no evidence to reveal any
discriminatory practices of Respondent and Local 236 with
respect to the hiring or retention of employees in the Padu-
cah area. In sum , I find no evidence to warrant a finding
that Respondent was discriminatorily motivated in fact
against Engler , or that Respondent 's general policy of not
transferring employees from one geographical area repre-
sented by one union to another geographical area repre-
sented by another local is inherently discriminatory. Ac-
cordingly, I conclude that the facts do not reveal that
Respondent has violated Section 8 (a)(3) and ( 1) of the Act
by refusing to transfer Engler from an over - the-road driver
position at Evansville , Indiana, to a similar position at Pa-
ducah , Kentucky. Rather , I am persuaded from all of the
facts that Respondent was motivated in its refusal to trans-
fer Engler and in its selection of a city driver at Paducah
for the over-the-road driver's position at Paducah upon the
realization that Local 236 desired that the job go to an
employee in the bargaining unit in the geographical area of
Paducah and that this was reasonable. I am also persuaded
that Respondent 's general policy of not transferring em-
ployees from one local to another local 's area is not unlaw-
ful because of the same above considerations.9
9 Romanoff Electric Corp, 221 NLRB 1131 (1975), General Drivers and
A & H TRUCK LINE 1159
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. A & H Truck Line, Inc., Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Union No. 215 and Local Union 236, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, are, and
have been at all times material herein, labor organization
within the meaning of Section 2(5) of the Act
Helpers Local Union No 229, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (Associated
Transport, Inc) 185 NLRB 631 (1970)
3. Respondent has not violated Section 8(a)(3) and (1)
of the Act by refusing to transfer Johnnie Engler on Sep-
tember 12, 1975, from its Evansville, Indiana, terminal to
its Paducah, Kentucky, termmnal.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 10
The complaint in this matter is dismissed in its entirety.
10 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings.
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes