Brotherhood of Railway Airline & Steamship Clerks

National Labor Relations Board - Board Decisions

Dec 15, 1969

180 N.L.R.B. 126 (N.L.R.B. 1969)

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Railway , Airline and Steamship
Clerks, Freight Handlers, Express and Station
Employees, AFL-CIO; and Brotherhood of
Railway, Airline and Steamship Clerks, Freight
Handlers, Express and Station Employees, Local
1902, AFL-CIO (Safety Cabs, Inc., and New Deal
Cab Company, Inc.) and Albert D. Edwards. Case
12-CB-1029
December 15, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On June 30, 1969, Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed
exceptions to the Trial Examiner's Decision and a
supporting memorandum.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed ; except as noted below the rulings are
hereby affirmed.' The Board has considered the
Trial Examiner's Decision, the exceptions, the
memorandum , and the entire record in this case and
finds merit in the Respondents ' exceptions.
Accordingly, the Board adopts the Trial Examiner's
findings , conclusions , and recommendations only to
the extent that they are consistent with the
following.
1. In agreeing with the Trial Examiner ' s finding
that the Board has statutory jurisdiction herein, we
rely in the circumstances of this case only on the
recent commerce data stipulated in the 1968
representation case involving the Respondents and
the Employer.'
2. The Trial Examiner found that the
Respondents caused the Company (Safety Cabs,
Inc.) to refuse employment to Edwards because of
'At the hearing , Edwards, the Charging Party, began to testify as to
what he was told by Marvin Marion , the vice president of Safety Cabs,
Inc The Respondents' counsel made timely objection on the grounds that
the testimony was hearsay . The Trial Examiner ruled that the testimony
would be received but not as to the truth or falsity thereof. On the
following day after Edwards had finished testifying the Trial Examiner's
reversed his ruling and stated that he was receiving the testimony not only
for the fact that it was made by the Employer, but also for the truth or
falsity of the matter contained therein. The Respondents contend the Trial
Examiner 's ruling resulted in gross prejudice to them In view of our
findings herein , we find it unnecessary to pass on or comment on the Trial
Examiner's ruling in this regard.
'Safety Cabs, Inc, 173 NLRB No 4.
his activities on behalf of a rival union in violation
of Section 8(b)(2) and (1)(A) of the Act. We do not
agree.
The occurrences with which we are concerned
herein followed a hard-fought election campaign in
which Local 1902's predecessor replaced Local 512,
International Brotherhood of Teamsters as
bargaining representative of the taxi drivers
employed by the Employer (Safety and New Deal
Cab companies).' On August 14, 1968, Edwards, the
Charging Party, resigned from the Taxi Drivers
Union organizing committee; in September he quit
his job with Safety as a taxi driver to become a
Teamsters business agent and campaign against the
Taxi Drivers Union. The Taxi Drivers Union won
the election held on October 25, 1968. On January
3, 1969, Edwards lost his job as Teamsters business
agent, and thereafter allegedly sought employment
with the Employer.
Initially, we note that the only evidence adduced
with regard to the Company's position on employing
Edwards came from his testimony of conversations
he had with the Company officials, in which, the
Trial Examiner found, it was intimated that the
Union was keeping Edwards from working. Not
only does this fail to assert a positive statement to
this effect, but no company official testified at the
hearing to substantiate Edwards' claim. The
Respondents contend that such testimony is hearsay
as regards the Respondents and cannot be used as
evidence of the Respondents' alleged attempt to
cause the Company to refuse to employ Edwards.
We agree.'
The Trial Examiner found that there is
nonhearsay evidence which shows that the
Respondents caused the Company to refuse
employment to Edwards. In our opinion, the only
evidence that would tend to to support the allegation
is Edwards' testimony that on January 24 or 31
Fitzgibbons, the Railway Clerks director of
organization , told Edwards:
He [Company Vice-President Marvin] talked
to me. He told me about givin' you a week's
work at the airport, which he broke his promise
to me. I want you to understand that the
[Railway Clerk's] don't owe you anything .... I
told the men about it, and they voted unanimously
no -speakin' about my [Edwards'] job.
But, there is one thing, if you will raid the
Teamsters or raid the companies that are under
contract with the Teamsters, and get 'em on
[Railway Clerks] pledge cards, I'll see what I can
do about gettin' your job back.
'Taxi Drivers' Union , Brotherhood of Railway, Airline & Steamship
Clerks, Freight Handlers, Express & Station Employees , AFL-CIO (herein
Taxi Drivers Union) was certified by the Board on November 5, 1968 On
January 1, 1969, Taxi Drivers Union was chartered by Brotherhood of
Railway , Airline and Steamship, Freight Handlers , Express and Station
Employees , AFL-CIO as Local 1902
See, Carpet Man, Inc, 170 NLRB No 45, Gouverneur Iron Works,
149 NLRB 316; N L .R B. v. Local 776 IATSE (Film Editors ), 303 F.2d
513, (C A. 9).
180 NLRB No. 21
BROTHERHOOD OF RAILWAY AIRLINE &,STEAMSHIP CLERKS 127
Fitzgibbons denied Edwards' version of the
conversation; the Trial Examiner credited Edwards.
The remainder of the evidence set forth by the
Trial Examiner to support his 8(b)(2) and (l)(A)
finding establishes only that there was considerable
ill-will toward Edwards because of his activities
during the election campaign, and that the union
membership and officers may have been reluctant to
receive him back into the Union.' But in this case
where the collective- bargaining agreement between
the Respondents and the Employer neither includes
an exclusive referral procedure nor requires union
membership at any time, that reluctance was no
,impediment to hiring Edwards. Viewed in this light
the other evidence upon which the Trial Examiner
relied does not support his finding that the
Respondents attempted to cause the Employer to
refuse employment to Edwards. Thus, Fitzgibbons'
statement to taxidriver O'Quinn that, "if [the union
membership] wanted [Edwards] back, they'd put
him back," indicates only that the membership
would have to decide whether they wanted Edwards
in the Union.6 Likewise union president Lytwinick's
comment to O'Quinn that Edwards was a turncoat
and "that we don't need him back in our Union"
indicates only that Lytwinick was not overly fond of
Edwards. Neither of these incidents establishes an
8(b)(2) or (1)(A) violation.
In this regard we note that the Trial Examiner
has not referred to unrefuted testimony which would
indicate that the Respondents were not concerned
whether Edwards returned to work for the
Employer. Thus, he failed to mention that according
to O'Quinn's undenied testimony Union
secretary-treasurer Daley, in response to an inquiry
about Edwards, told him that it did not matter to
him (Daley) and "he didn't have no objection about
[Edwards] gettin' his job back." The Trial Examiner
indicates that taxi driver Evors credibly testified that
Lytwinick told him, "that it wasn't anything
personal, it was just the fact that part of the
membership disagreed on his actions he took when
we were organizin' ",but does not mention Evors'
further undenied testimony that, "Mr. Fitzgibbons
at no time made any remark about the employment
of Mr. Edwards to me.' 17
And, finally, the Trial Examiner failed to mention
Lytwinick's uncontradicted testimony that he had
talked to Marvin (vice president of Safety Cabs) in
January or February upon learning that Edwards
had filed or intended to file charges, and told
Marvin that "we have no objection whatsoever to
your employing Mr. Edwards."'
In conclusion, we are of the opinion that the
nonhearsay evidence relied on, for the most part,
shows only that some of the union officers and
membership were neither overly fond of Edwards
nor anxious for him to become a union member. As
noted above no official of the Company which the
Union allegedly caused to refuse to hire Edwards
testified; in our opinion, this leaves a significant gap
in the General Counsel' s case . Indeed, on the record
as a whole, the only evidence which tends to support
the 8(b)(2) allegation is the statement Fitzgibbons
made to Edwards. In view of the testimony
discussed above, we do not think that statement
sufficient; we are constrained to find that the
General Counsel has not carried his burden of
proving, by a preponderance' of the evidence, that
the Respondents caused the Company to refuse
employment to Edwards. Accordingly, we shall
dismiss the 8(b)(2) and (1)(A) allegation of the
complaint.
The Trial Examiner further stated:
In view of these violations [that Respondents'
caused the Company to refuse employment to
Edwards in violation of 8(b)(2) and 1(A)], I also
find that director of organizations Fitzgibbons
statement to Edwards on January 31, offering to
assist Edwards in getting his job on condition that
he would help in raiding the Teamsters, interfered
with Edwards' Section 7 right to refrain from
supporting the Railway Clerks, in violation of
Section 8(b)(1)(A) of the Act.
Since this finding is predicated on the 8(b)(2) and
(1)(A) finding which in our opinion is not supported
by the record, we shall likewise dismiss this
8(b)(1)(A) allegation, and the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
in this connection , we also note that two other employees (Hammond
and Copeland) took leave of absence during the election campaign to work
for the Teamsters and returned to work without incident
'The extent of the opposition to Edwards' becoming a member of the
union was not put to the test , however, since Edwards apparently did not
apply for membership
'In this regard , it should be noted that O' Quinn only asked the Union
officials about Edwards' obtaining employment after Edwards had told
O'Quinn he had gone to the National Labor Relations Board, and
O'Quinn said that he would do whatever he could to help Edwards
Moreover , as the Respondents point out, while O'Quinn wanted to help
Edwards, he admitted that he never went directly to the Company to ask
about a job for Edwards
'Nor did the Trial Examiner discuss the testimony of taxi driver Sadler,
called by the General Counsel, who testified that during a discussion which
included union members and officers someone mentioned that Edwards
was'offered his job back but did not want it
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner This case was
tried at Jacksonville, Florida, on May 6-7, 1969,' pursuant
to a charge filed on February 3, and amended February 4,
by Albert D. Edwards (an applicant for reemployment at
Safety Cabs, Inc., herein called the Company) against the
Respondents, Brotherhood of Railway, Airline and
All dates, unless otherwise indicated , are from August 1968 to May
1969
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steamship Clerks, Freight Handlers, Express and Station
Employees, AFL-CIO, and its Local 1902, herein also
called the Railway Clerks and the Taxi Drivers Local,
respectively, and pursuant to a complaint issued on April
7 and amended April 16. The primary issues are whether
the Respondents (a) caused the Company not to rehire
Edwards (who had quit to serve as business agent for a
rival union ), and (b ) offered to assist Edwards in getting
back his job on the condition that he help in raiding
bargaining units represented by that rival union, in
violation of Section 8(b)(2) and (1)(A) of the National
Labor Relations Act, as amended.
Upon the entire record,' including my observation of
the demeanor of the witnesses , and after due consideration
of the briefs filed by the General Counsel and the
Respondents, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER AND THE UNIONS
INVOLVED
The Company operates fleets of Safety and Yellow
taxicabs in Jacksonville , Florida . Since about March 1, it
has operated these taxicabs from the same terminal from
which New Deal Cab Company, Inc., hiring Negro
drivers , operates a separate fleet of taxicabs.
In 1966, when New Deal was operating 70 taxicabs, the
Board asserted its jurisdiction in a representation
proceeding , New Deal Cab Company. Inc., 159 NLRB
1838, based on a stipulation that New Deal alone had an
annual volume of business exceeding $500,000 , and more
than $50,000 in annual purchases of taxicabs from outside
the State . Although the Respondents were not parties to
that proceeding , their counsel stipulated at the June 20,
1968, hearing in a later representation proceeding , Safety
Cabs , Inc., and New Deal Cabs Company , Inc., Case
12-RC-3095 , that both the Company and New Deal have
an annual taxicab business exceeding $500,000, that each
of them "in the last 12 months " has in excess of $50,000
in out-of-state purchases of taxicabs , supplies , materials or
equipment, and that there had been no essential change in
the ownership , management , or actual operation of New
Deal and the Company since the Board's decision in the
1966 case . On September 27, 1968 , the Board issued its
Decision and Direction of Election , 173 NLRB No. 4,
finding the Company and New Deal to be a single
employer . A Certification of Representative was issued to
the Taxi Drivers Local ' s predecessor ("Taxi Drivers
Union , Brotherhood of Railway , Airline & Steamship
Clerks, Freight Handlers , Express & Station Employees,
AFL-CIO") on November 5. The current case involves
conduct alleged to have begun less than 2 months after
this certification.
Based on the recent commerce data stipulated in the
1968 representation case , I find that the Company and
New Deal are a single employer , that they have an annual
gross volume of business of at least $500,000 and that the
Board has statutory jurisdiction . They therefore satisfy the
Board ' s discretionary standards for asserting jurisdiction
over a taxicab business. Supreme , Victory and Deluxe
Cab Companies , 160 NLRB 140, 144 . The Respondents
having offered no proof of any material change in the
commerce data , there was no necessity (as contended by
them ) for the jurisdictional matter again being litigated in
this proceeding. Greene County Farm Bureau Cooperative
The General Counsel 's motion to correct transcript , filed May 28, is
granted and the transcript is corrected accordingly.
Assn., Inc. v. N.L.R.B. 317 F.2d 335, 336 (C.A.D.C.);
Plant City Welding and Tank Co., 123 NLRB 1146,
1150-51; Montex Drilling Co., 122 NLRB 139, 140; and
Associated Grocers of Port Arthur, Inc., 134 NLRB 468,
471.
Moreover, the evidence shows that Company and New
Deal constitute a single employer, that their gross
revenues far exceed $500,000 annually, and that there is
statutory jurisdiction (the Company having purchased at
least 20 new taxicabs since June 1968). Concerning the
volume of business, there are between 90 and 100 metered
cabs (Yellow), and between 103 and 105 zoned cabs (28-30
Safety and about 75 New Deal cabs). The taxicabs are
operated 24 hours a day, on two shifts. Although the
"combined gross revenue received as fares for taxicabs,"
Checker Cab Co., 141 NLRB 578, 584, was not available
at the trial, merely the employer's rental on the zoned
cabs would exceed $500,000. Thus, if only 60 of the over
100 zoned cabs were rented to the drivers at the
contractual rate of $13.52 a shift, the rental for two shifts
would be $1,622.40 daily, or $592,176 annually. Of course,
the total fares charged by these drivers of zoned cabs, and
the total fares on the metered cabs, would far exceed
$500,000.
I find that the Company and New Deal are an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that the Taxi Drivers
Local and the Railway Clerks are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On August 14, taxi driver Albert D. Edwards resigned
from the Railway Clerks' "Taxi Drivers Committee,"
which was seeking to replace Teamsters Local 512 as the
bargaining representative of the taxi drivers employed by
the Company and by New Deal. Thereafter in September,
Edwards quit his employment as a taxi driver for the
Company, to serve as a business agent for the Teamsters
and to campaign against the Railway Clerks. During the
election campaign, the Railway Clerks' "Taxi Drivers
Organizing Committee" issued literature referring to
Edwards as a "turncoat."
The Railway Clerks' "Taxi Drivers Union" won the
Board election, and was certified on November 5 in a unit
of all full-time and regular part-time taxicab drivers
employed by New Deal and the Company. Thereafter, the
Company orally assured Edwards (who was an
experienced, satisfactory taxi driver) that if he lost his job
as a Teamster business agent , he "would always have a
job as a cab driver" for the Company.
On January 3, Edwards was replaced as a Teamsters
business agent . Beginning that same day, he sought
reemployment at the Company, but was never rehired
(except for 8 days about the third or fourth week in
January, when he was hired by the Company on an
"undercover" job at the airport, checking the number of
passengers on airport limousines ). Both before and after
January 3, the Company was advertising in the newspaper
for cab drivers. No company official testified at the trial.
The main question is whether the Railway Clerks and
the Taxi Drivers Local (which was chartered by the
Railway Clerks on January 1) caused the Company to
discriminate against Edwards.
BROTHERHOOD OF RAILWAY AIRLINE & STEAMSHIP CLERKS 129
B. Union Causation
Although objecting to the General Counsel's evidence
of conversations between Edwards and company officials
as hearsay, the Respondents' counsel himself elicited the
information, when cross-examining Edwards, that
throughout the month of January, Company Executive
Vice President Marion F. Marvin intimated to Edwards
that "it was the union" that was keeping Edwards from
working Despite the denials of such causation by
Respondents' representatives, there is nonhearsay evidence
indicating this union causation.
Edwards testified that on Friday, January 24 or 31, he
met Railway Clerks Director of Organizations Thomas
Fitzgibbon in Fitzgibbon's hotel room in Jacksonville.
After Respondents' Counsel Robert J. Mozer left the
room, Fitzgibbon told Edwards
He [Company Vice President Marvin] talked to me He
told me about givin' you a week's work at the airport,
which he broke his promise to me. I want you to
understand that the [Railway Clerks] don't owe you
anything. . . . I told the men about it, and they voted
unanimously no - speakin' about my [Edwards'] job
But, there is one thing, if you will raid the Teamsters
or raid the companies that are under contract with the
Teamsters, and get 'em on [Railway Clerks] pledge
cards, I'll see what I can do about gittin' your job
back [Emphasis supplied.]
On cross-examination, Edwards testified that in the
conversation, Fitzgibbon stated that Edwards was in a
position to know the Teamsters contract expiration dates,
and Edwards agreed that he was. (When called as a
defense witness, Fitzgibbon testified that he did talk to
Edwards on January 31, but claimed that it was only over
the telephone, and that Edwards was seeking a job with
the Railway Clerks, not employment at the Company
Fitzgibbon did not impress me as a reliable witness,
whereas Edwards did - despite his conviction for grand
larceny 13 years ago. Having observed his demeanor on
the stand, and having closely scrutinized his testimony, I
find that Edwards was an honest, forthright witness, and
credit his version of what happened.)
Director of Organizations Fitzgibbon, admittedly an
agent of the Retail Clerks, was on the union negotiating
committee with Taxi Drivers Local's representatives,
including Temporary President William Lytwinick. On
January 3 (the date Edwards first applied for
reemployment at the Company), a collective-bargaining
agreement was reached, covering not only the taxi drivers
in the certified unit, but also the limousine drivers Marvin
signed the agreement as president of New Deal and as
vice president of the Company. Lytwinick and three others
signed on behalf of "Taxi Drivers Union, Local 1902,"
and Fitzgibbon signed on behalf of "Allied Services
Division" of the Railway Clerks. The agreement does not
contain an exclusive referral procedure (There being no
allegation in the complaint concerning the provision in
Article III of the agreement, that "The company shall
collect fees, assessments and dues from each driver in the
first week of the calendar month in which the driver is
employed," I do not rule on the legality of the provision.)
Negotiations continued after January 3, and an agreement
covering dispatchers, mechanics, and laborers was signed
on February 13.
in the meantime, about February 10, taxi driver Brown
M. O'Quinn asked Temporary President Lytwinick
"about givin' Mr. Edwards' job back," stating "I thought
he needed his job back, that he couldn't hurt any longer,
that we wanted a new union, and there was no way in the
world he could hurt us, that this boy needed his job
back." Lytwmick responded that Edwards was a turncoat,
and "that we didn't need him back in our union ." (This
testimony, given by O'Quinn, was not denied) Also in
February, during a union meeting , O'Quinn followed
Director of Organizations Fitzgibbon into the hall and
"asked him about Edwards gettin' his job back "
Fitzgibbon answered, "The Teamsters owed Edwards a
job." Then O'Quinn asked, "What's the chances of him
gettin' his job back," and stated that Edwards needed the
job. Fitzgibbon motioned toward the men in the union
meeting and said, "If they wanted him back, they'd put
him back." (Fitzgibbon admitted that two or three drivers
mentioned Edwards to him, and that he might have said
to one or more of them that "The Teamsters owe
Edwards a job." However, he denied saying that if the
men want him back, they can put him back. I discredit
the denial, and credit the testimony given by O'Quinn,
who appeared on the stand to be a trustworthy witness.)
Taxi driver Theron S. Evors credibly testified that
during a discussion of Edwards, Litwinick stated "that
there wasn 't nothin' personal, it was just the fact that part
of the membership disagreed on his actions he took when
we were organizin'." (This testimony is not denied.)
Having considered all the evidence, including
particularly the shortage of taxicab drivers in the area, the
Company's prior promise to rehire Edwards, the admitted
union hostility toward Edwards, and the credited
testimony of Edwards, O'Quinn, and Evors concerning the
Railway Clerks' and the Taxi Drivers Local's involvement
in the Company's failure to reemploy Edwards, I find that
the Respondents, as alleged , caused the Company to
refuse employment to Edwards because of his activities on
behalf of the rival union, Teamsters Local 512, in
violation of Section 8(b)(2) and (1)(A) of the Act. In view
of these violations , I also find that Director of
Organizations Fitzgibbon' s statement to Edwards on
January 31, offering to assist Edwards in getting back his
job on the condition that he would help in raiding the
Teamsters, interfered with Edwards' Section 7 right to
refrain from supporting the Railway Clerks, in violation
of Section 8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
By causing the Company to discriminate against
Edwards in violation of Section 8(a)(3), and by interfering
with Edwards' right to refrain from union activity, the
Railway Clerks and the Taxi Drivers Local engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(b)(2) and (1)(A) and Section 2(6)
and (7) of the Act
THE REMEDY
Having found that the Respondents have committed
certain unfair labor practices, I shall recommend that they
be ordered to cease and desist from such conduct, and to
take affirmative action , which I find necessary to remedy
and to remove the effect of the unfair labor practices and
to effectuate the policies of the Act.
The Respondents having unlawfully caused Safety
Cabs, Inc., to refuse employment to Albert D. Edwards as
a taxicab driver on and after January 3, 1969, 1 shall
recommend that the Respondents be ordered to notify the
Company in writing that the Respondents have no
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objection to Edwards' reemployment as a taxicab driver,
and that the Respondents be ordered to make him whole
for any loss of earnings suffered from January 3, 1969,
until the date 5 days after the Respondents serve on the
Company the above-required notice. The loss of earnings
shall be computed in the manner set forth in F W.
Woolworth Company, 90 NLRB 289, with interest at 6
percent per annum as provided in Isis Plumbing &
Heating Co., 138 NLRB 716.
Accordingly, on the basis of the foregoing findings and
conclusions, and on the entire record, I recommend
pursuant to Section 10(c) of the Act, issuance of the
following:
[Recommended Order omitted from publication.]