Consolidated Freightways

National Labor Relations Board - Board Decisions

Jun 8, 1964

147 N.L.R.B. 348 (N.L.R.B. 1964)

848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for the Nineteenth Region , in writing, within
20 days from the date of receipt of this Decision , what steps the Respondent has
taken to.comply herewith.4
It is further recommended that, unless on or before 20 days from the date of re-
ceipt of this Decision , the Respondent shall notify the said Regional Director, in
writing,,that it will comply with the foregoing recommendations , the National Labor
Relations Board issue an order requiring the Respondent to take the action aforesaid.
4In the event that this Recommended Order be adopted by the Board , this provision
,shall be modified to read : "Notify said Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order , what steps the Respondent has taken
to comply herewith."
Clark-Inland Cartage, Division of Consolidated Freightways and
Garland J. Jones
Local Freight Drivers, Local No. 208, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America and Garland J. Jones. Cases Nos. 21-CA-5051 and
£1-CB-2074. June 8, 1964
DECISION AND ORDER
On March 5 ,1964, Trial Examiner Louis S. Penfield issued his Deci-
sion in the above -entitled proceeding finding that the Respondents had
not engaged in any unfair labor practices as alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in his attached Decision . Thereafter, the Charging Party
filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Leedom].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions ,and briefs, and the entire record
in the case, and hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the Board hereby adopts as its Order; the Order recom-
mended by the Trial Examiner.
3 we are unable to agree with the opinion of our dissenting colleague . His position
rests on the conclusion that the "72 hour notice" constituted an illegal attempt to cause
the Employer to discriminate against Jones . Although the bare words of the notice could
147 NLRB No. 45.
CLARK-INLAND CARTAGE, ETC. 349
MEMBER LEEnoaz, dissenting in part :
I would find that the Respondent Union 'unlawfully attempted to
cause the Respondent Employer to discriminate against Jones, the
Charging Party herein.
As the record establishes and the Trial Examiner found, Jones
sought to join the Respondent Union as a new member and tendered
sums in payment of the required initiation fees and dues. The Re-
spondent Union rejected these tenders, not because they were, deemed
insufficient, but because it contended that under the applicable bylaws,
Jones was not entitled to join as a new member, but was required
to transfer his membership from the local in Alaska of which he was
then a member. Jones refused to transfer; and thereafter, the Re-
spondent Union sent the so-called 72-hour notice, demanding his re-
moval from the job under the union-security provisions- of the con-
tract between the Respondents.
Section 8 (b) (2) of the Act provides inter alia that it "shall be an un-
fair labor practice for a labor organization . . . to . . . attempt to
cause an employer . . to discriminate against an employee with re-
spect to whom membership in such organization has been denied ...
on some ground other than his failure to tender the periodic dues
and the initiation fees uniformly required as a condition of acquiring
or retaining membership." The above-noted facts establish, in my
opinion, that Jones was denied membership in the Respondent Union
on some ground other than his failure to tender the uniformly required
dues and initiation fees, i.e., because he refused to give up his member=
ship in the Alaska local; they further established that the 72-hour no-
tice was an attempt to cause the Respondent Employer to discriminate
appear to direct the removal of the employee until he received union clearance , that is
not the effect which the parties themselves attributed to it. There is abundant evidence
in the record to support the Trial Examiner's finding that it was both the desire of the
local and the understanding of the Employer that this notice merely produces a future meet-
ing between Jones and the Union . Blackmarr , the Union 's secretary-treasurer , testified
that the notice was intended to get Jones to come to the union office to discuss the matter
of the transfer with the union officials . He stated further that if the Union' s attorney
had approved Jones' application , the local would have been willing to allow him to join as
a new member . MacDonald, the Employer's dispatcher , testified that notices were re-
garded as requests to direct an employee to contact the Union. He testified without contra-
diction that the Employer never bothered to determine whether an employee covered by a
notice ever received the Union 's clearance and that no employee had ever been terminated
on the basis of such a notice . In addition, he stated that the Company currently employed
two other men who had not presented any union clearance despite the fact that they had
been the subject of recent notices. We find that the Union made no attempt to cause the
Employer to discriminate against Jones in light of the absence of any intention or reasons-
able expectation that the notice would have any such effect.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against him for that reason 2 The Trial Examiner's conclusion that
there was no unlawful discrimination or causation of discrimination,
because Jones quit before the efficacy of the attempt could be tested,
cannot, in my opinion, negate the illegal nature of the attempt.
In view of the foregoing I would find that the Respondent Union un-
lawfully attempted to cause the Respondent Employer to discriminate
against Jones, in violation of Section 8(b) (2) and (1) (A),' and
would enter an order appropriate to remedy that violation. As my
colleagues are dismissing the complaint in its entirety, I must dissent.
2 In the absence of evidence that Jones was clearly Informed as to the asserted "desire
of the local and . . . understanding of the Employer .. ." concerning the intended effect
-of this notice , I am unwilling to accord such unexpressed desire and understanding con-
trolling precedence over the objective facts.
8 See Pape Broadcasting Company ( Radio Station WALA), 104 NLRB 29, enfd. 217 F.
2d 197 ( C.A. 5). Food Machinery and Chemical Corporation , 99 NLRB 1430 , relied on by
the Respondent Union, is In my opinion distinguishable . The Food Machinery case was
concerned with the reasonableness and legality of requiring different financial obligations
from former members than from new members . The issue here , on the other hand, as in
Pape, Is the legality of Imposing any nonfinancial condition as a prerequisite to member-
ship for the purpose of enforcing a union -security provision in a bargaining agreement.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding with all parties represented was heard before Trial Examiner
Louis S. Penfield in Los Angeles, California , on November 20 and 21 , 1963, upon a
consolidated complaint of the General Counsel and answers by Clark-Inland Cart-
age, Division of Consolidated Freightways, herein called Clark-Inland, and Local
Freight Drivers, Local No. 208 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, herein called Local 208.1 The issues litigated
were whether Clark-Inland violated Section 8 (a) (1) and (3), and whether Local 208
violated Section 8(b)(1)(A ) and (2 ) of the National Labor Relations Act, as
amended , herein called the Act.
Upon the entire record, including consideration of briefs filed by the parties, and
upon my observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF CLARK-INLAND
Clark-Inland is, and at all material times has been , engaged in the interstate
transportation by truck of various goods and commodities . During the calendar
year 1962 Clark-Inland 's gross revenue from the interstate transportation of goods
and other commodities exceeded $50,000. I find that Respondent is, and at all
times material has been, an employer engaged in commerce , and in a business af-
fecting commerce, within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local 208 is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues and the background
The sole issue in this proceeding centers upon the General Counsel's contention
that Garland J. Jones, having been denied membership in Local 208 on grounds
other than his failure to tender the periodic dues and initiation fees uniformly re-
' The consolidated complaint issued on May 24, 1963 , and is based upon charges filed
with the National Labor Relations Board, herein called the Board, on March 18, 1963.
Copies of , the consolidated complaint and the charges have been duly served upon both
Clark-Inland and Local 208.
CLARK-INLAND CARTAGE, ETC. 351
quired, was thereafter unlawfully terminated by Clark-Inland upon the unlawful
demand of Local 208. More particularly, the General Counsel asserts that Local 208
conditioned membership in the local- on Jones' willingness to transfer his member-
ship from a sister local , and that although Jones tendered initiation fees and dues
to Local 208, he refused to give up membership in the sister local and become a
member of Local 208 by transfer, and that this resulted in a demand by Local 208
for his discharge pursuant to the union-shop provisions of its collective-bargaining
agreement with Clark- Inland . It is further asserted that Clark-Inland unlawfully
acceded to this demand by Local 208 and terminated Jones' employment. Local 208,
while acknowledging that it sought to have Jones transfer his membership, denies
that Jones ever made a valid tender, denies that it ever demanded his discharge for
refusing to transfer, and insists that even assuming such a demand to have been
made it was a.lawful one. Clark-Inland contends that Jones quit its employ, and that
he was not terminated because of demands by Local 208, whether lawful or not.
To evaluate the circumstances surrounding Jones' termination we must first con-
sider both the collective-bargaining contract between Clark-Inland and Local 208,
and certain practices and procedures followed by both Respondents in the course of
their collective-bargaining relationship.
Clark-Inland and Local 208 have been parties to collective-bargaining agreements
for many years. The controlling agreement contains, among other things, a union-
shop provision requiring that new employees "shall become and remain members
in good standing of the Local Union as a condition of employment on and after
the 31st day following the beginning of their employment . . ." and "upon written
notice from the Union that any employee has failed to acquire membership in the
Union, as herein provided,' or has failed thereafter to maintain good standing, as
herein provided, the Employer shall, within seventy-two (72) hours of such notice
discharge said employee." It is the practice under the contract for Clark-Inland to
hire employees as needed and thereafter to. send a notice of hire to Local 208 when
the new employee has completed 30 days of employment. Upon receipt of this
notice, -a Local 208 business agent normally calls Clark-Inland and requests that it
send the new employee to the local office for the purpose of his acquiring member-
ship. The bylaws of Local 208 require, among other things, that in becoming a
member the new employee fill out certain applications and pay.an initiation fee of
$50. This procedure is followed with respect to all new employees not already
members of Local 208. A slightly difficult procedure, however, is invoked when the
new employee is found to be a member of a sister local of International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein
called the International. According to the bylaws of Local 208 the transfer pro-
cedures are governed by the provisions of the constitution of the International. Ar-
ticle XVIII of this constitution deals directly with the question of transfer. This
article reads in part as follows:
Section 1.- It shall be compulsory upon every Local Union to accept the
transfer card of a member in good standing with any Local Union of the Inter-
national Union, without any extra charge or fees, except as set forth in the
International Constitution, provided, however, the member seeking to transfer
has already obtained employment within the jurisdiction of the Local Union;
provided, further, the member seeking to transfer shall comply with all rules
and regulations',set forth in this Constitution respecting transfer; and provided
further he shall- comply with rules and regulations of the Local Union and its
Constitution. and Bylaws. A member who has transferred to a Local Union
shall be entitled to the rights and privileges of membership in the Local Union
in accordance with the rules and regulations of the Local Union.
Section 2. (This section spells out the content of a transfer card.)
Section 3 (a). It shall be compulsory for a member working under the
jurisdiction of another Local Union to procure a transfer card from the Local
Union. of which he is a member, and to deposit the same with the Local Union
under whose jurisdiction he is working. Immediately upon going to work, or
before if practicable, he shall make a request in writing to the Local Union
of which he is a member and from which he seeks to transfer for the issuance
of a transfer card to him, and shall also apply to the 'Secretary-Treasurer of
the Local Union into which he is seeking to transfer for approval of that
Secretary-Treasurer so to transfer. No transfer card shall be issued unless
such approval has been obtained in writing attested to by such Secretary-
Treasurer. Within forty-eight (48) hours after a member'has received a trans-
fer card he shall deposit the same with the Local Union to which he seeks to
transfer, and upon such deposit the transfer shall become effective. Upon trans-'
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fer, the member is subject to the rules, Bylaws and agreements of the Local
Union to which he has transferred. The Local Union from which a member has
been transferred shall be obliged to refund to such members dues paid in ad-
vance to such Local Union covering the period from the end of the month in
which such member has transferred to the end of the period for which such dues
have been paid in advance. If a member continues to work under the jurisdic-
tion of another Local Union after having been refused a transfer card or after
having failed to apply for such transfer card as specified herein, or after the
Joint Council has decided he should transfer, and he has refused, he thereby
forfeits his membership, and his Local Union must not accept any more dues
or furnish him with a button. Refusal to issue a transfer card or to approve
a transfer may be appealed to the General President and thereafter to the Gen-
eral Executive Board in accordance with the appeal procedures provided for in
this Constitution, excluding, however, appeal to the convention.
As a practical matter in implementing these constitutional provisions, Local 208,
upon ascertaining that the new employee is a member of another local, instructs the
employee to apply for a transfer and writes to the sister local for information concern-
ing his status. When the good-standing status of the new employee in the sister local
has been determined, and his transfer card has been received, his status as a member
of Local 208 is perfected by the payment of a 50-cent-transfer fee. Such transfer
procedure purports to be applicable to members of all locals of the International upon
taking employment within the jurisdiction of another local. There is no provision in
the constitution which deals with the possibility of membership by an individual
in more than one local of the International at any one time.
B. The employment and termination of Jones
Garland J. Jones was first employed by Clark-Inland as a truckdriver on Septem-
ber 31, 1960. He continued to work for Clark-Inland in this capacity until April 5,
1962, when he quit his employment to go to Alaska to work as a truckdriver in the
construction industrythere. Jones had first become a member of Local 208 in 1959.
He remained a member in good standing throughout the entire period of his employ-
ment with Clark-Inland. Upon going to Alaska he utilized the transfer procedure
above described, and transferred his membership from Local 208 to a sister local in
Alaska known as Local 959. When weather conditions in Alaska made further work
in the construction industry unavailable, Jones returned to the Los Angeles area. He
then approached Findley H. MacDonald, Clark-Inland's dispatcher, and solicited a
job. MacDonald put him to work on September 18, 1962. Jones continued to work
for Clark-Inland thereafter until February 8, 1963, when his employment terminated
under circumstances which become the subject matter of this proceeding.
According to Jones, almost immediately after obtaining his job with Clark-Inland
he visited the office of Local 208. He states that on this initial visit in September he
contemplated a transfer of his membership from Local 959 to Local 208. He ex-
plained his situation to the receptionist at the desk and to Business Agent William
Croysdill. Both advised him that no steps concerning his membership were
appropriate until Local 208 had received a notice of his hire from Clark-Inland, and
that this would not come in for 30 days .2
After Jones had worked for 30 days, Clark-Inland sent a notice of hire to Local 208.
The business agent, acting in the customary manner, telephoned Clark-Inland and
requested that it ask Jones to come to the union office. In response to this request
Jones visited the office on or about October 18. 1963. By this time Jones had changed
his original point of view as to transfer, and he advised the receptionist that he now
wished to become a member of Local 208. He then proceeded to give the receptionist
$50 to cover the cost of his Local 208 initiation fee. The receptionist, noting in
the records that Jones was a former member of Local 208 who had transferred his
membership to Local 959, advised him that the appropriate procedure to follow
would be to transfer back into Local 208 from Local 959. Jones told her that he
desired to keep his membership in Local 959, and at the same time to become a mem-
ber of Local 208, and that he was ready to take all steps and pay all fees required of a
new member to achieve this end. The girl then called Business Agent Croysdill, and
2 Business Agent Croysdill testified that he does not recall the September meeting with
Jones. However, he does not dispute that it may have taken place for he acknowledges
that it was his uniform practice to advise each person seeking information on membership
to defer taking further steps until Local 208 had received a notice of hire from his
employer.
CLARK-INLAND CARTAGE, ETC. 353
Jones explained to him the manner in which he wished to proceed .3 Croysdill advised
Jones that he was not certain if union regulations would permit him to have dual
membership in two locals of the same International. Croysdill explained that be-
cause of this uncertainty Local 208 could not accept the $50 initiation fee, and the
money was thereupon given back to Jones. Croysdill, however, told Jones that he
would check into the matter further by taking up Jones' request with the attorneys for
the local. He told Jones to return to work and to await further word from Local 208
concerning the matter. Jones admits, that although Croysdill clearly indicated he
regarded the transfer procedure as the proper one, Croysdill did not at this time tell
him that he could not become a member of Local 208 by any means other than
transfer.
Nothing of significance concerning the status of Jones as a union member took
place for several months. Immediately after Jones' October visit, Local 208 wrote
to Local 959 concerning Jones' status, and some time later it received information
that Jones was in good standing with the Alaska local. The records of Local 208
show that some union representative made a call to Clark-Inland on December 6,
1963, apparently to ask Jones to come to the local office. There is nothing to indicate
that this message ever reached Jones, or that Local 208 took any immediate steps
to follow upon it. According to the testimony of Local 208 representatives, they
were preoccupied with an election of officers during December and most of January
and, as a result, no one pursued the matter as promptly as might otherwise have
been the case .4
There is some controversy as to the next time that Jones came to the union office to
take up the problem of his status as a member of Local 208. According to Jones he
was advised by MacDonald in the latter part of January 1963 that Local 208 wanted
him "to come down and join the union." Jones states that, acting upon this request,
he went to the Local 208 office at a time which he places near the end of January and
met with two union representatives, one of whom he identifies as Edwin Blackmarr.
Dispatcher MacDonald denies receiving a request from Local 208 for Jones to visit
the office until approximately February 5. Blackmarr denies seeing Jones at the office,
or anywhere else, at any time during the month of January. Jones, in an affidavit
given to a Board representative shortly after filing the charge does not note a January
visit to the union office, although he claims this to be an oversight. A ledger card,
in the name of Jones, kept by the local, and upon which notations are normally made
concerning the dealings between the local and Jones, indicates a telephone call to
Jones from the local sometime in January followed by a notation that Jones would
be in the union office on January 31, 1963. I am of the opinion that this record is
more likely to be accurate than the memories of either MacDonald or Blackmarr,
and that Jones actually did visit the union office on January 31, 1963. Blackmarr,
although denying that he was in the union office at all for most of January, acknowl-
edges that he. assumed office as secretary-treasurer in the latter part of that month.
It is reasonable to expect that after a long period of inaction, Jones' status should again
come up for consideration with a new officer taking charge. The normal procedure
for reactivation would start with a request, through Clark-Inland, that Jones come into
the office. It is possible that Jones is mistaken in his belief that he saw Blackmarr
in January rather than some other union representative, but I am convinced from all
the circumstances, and especially from the notation on Jones' ledger card, that in
fact he did visit the office at this time and that the events occurred substantially as
he relates them. According to Jones, whatever official he saw discussed further with
'Jones testified that in the previous year when he had transferred into Local 959 he
had been treated as a new member and placed in a low position on the union hiring hall
lists for job dispatch. As a result he had had to wait for nearly 2 months before being
sent out on a job. He contemplated returning to Alaska again in 1963 when weather
conditions permitted construction jobs to resume, and he felt that if he transferred back
from Local 208 he would once again find himself in an unfavorable position for dispatch
purposes, a situation which he believed would be obviated if be could continue his member-
ship in Local 959 on a current basis.
4 The principal executive officer of Local 208 is the secretary-treasurer. William Croys-
dill was secretary-treasurer in September and October when Jones first came in. At the
same time Edwin Blackmarr was serving as a business agent for the local. In the ensuing
election Edwin Blackmarr was elected as secretary-treasurer of the local. Blackmarr, how-
ever, did not assume office until the latter part of January 1963. After Blackmarr became
secretary-treasurer Croysdill continued to serve as a business agent for the local.
756-236- 65-vol. 147-24
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him the possibility of his becoming a member of Local :208 by paying the initiation
fees-rather than by the transfer procedure. It is quite clear that it was repeated to
Jones that Local 208 regarded the transfer route as the appropriate one, but it is
by no means clear that at this time anyone insisted that he come in by transfer or
suffer the consequences. On cross-examination Jones was specifically asked if anyone
had insisted that he become a member by transfer, and Jones testified "he said that
if I didn't -transfer that he didn't know what he was going to do-I don't know
actually-yes he insisted on his suggestion ." While this in no way suggests an
abandonment by Local 208 of its previous position with regard to the appropriateness
of the transfer procedure, it does connote continued uncertainty, and it falls short of
an outright demand that Jones become a member by transfer if he wanted to
retain his job with Clark-Inland.
Following the January 31 visit to the local office, Jones. sent a check for $25 to
the local together with a letter stating that if "this wasn't enough for [his] dues and
[his] back dues" to let him know, and "also I said I would pay them the initiation
fee if they wanted it." This check was not cashed by Local 208 but was returned
to Jones by mail after his termination without a covering letter .5
Jones' next meeting with union representatives occurred at Clark-Inland on
February 5, 1963, when Secretary-Treasurer Blackmarr and Business Agent Shapiro
appeared to supervise a shop-steward election. At this time Blackmarr and Jones
engaged in a somewhat heated exchange concerning Jones' status. According to
Jones, Blackman told him that he could not join but that he should come down
and transfer into Local 208. Jones states that he again insisted that he wanted
to join and Blackman responded that he could not let him, and that Jones had
better come down and get the matter straightened out "or else." The "or else"
appears to have referred to the sending of the 72-hour notice under the contract
concerning Jones' continued employment. Jones testified that he also spoke to
Blackmarr about the $25 check, and advised him that if this were not enough he
was prepared to make up any difference and to pay the initiation fee in full. Jones
then asked Blackman specifically if Blackmarr was "going to let [him] join if [he]
came down the next morning," and Blackman replied that "he handles all his business
in the office..." and "to come down there and we would talk about it." Blackmarr's
version of this meeting and that of Shapiro are in substantial accord with that of
Jones. Again this meeting appears as a further expression by Local 208 of ad-
herence to its position that Jones become a member by transfer. It occurred, how-
ever , in a nonbusiness setting, and while Blackmarr suggested the possibility of a
72-hour notice, the principal thrust of his remarks does not show an adamant
demand that Jones become a member of Local 208 by transfer or face discharge,
but rather an insistence that further discussion was in order at the union office,
where Blackman carried on his business.
Blackman testified that when Jones failed to appear at the union office on the
day following the February 5 conversation, he concluded that inasmuch as Jones
was taking no steps to become a member of the local, and was not even willing to
come to the office for further explanation of the legal problem of dual membership,
a 72-hour notice under the contract was needed to bring matters to a head. A so-
called 72-hour notice was sent to Clark-Inland on February 6, 1963, reading as
follows:
The contract between your Company and Freight Drivers Union, Local 208
states a 72 hour notice must be given before the Company is required to remove
any employee from the job.
Kindly accept this letter as official notice that the following employees have
failed to become and/or remain members in good standing of Local No. 208
and, therefore, must be removed from the job until such time as they present
you with a clearance from this Local Union.
Only the name of Jones was listed upon this notice. Immediately after the notice
was received, Clark-Inland informed Jones of its content. It is acknowledged that
both Dispatcher MacDonald and Assistant Manager Burbidge urged Jones to go
5 Local 208 claims that the amount was not sufficient to cover back dues . While this
appears to be true, the check was accompanied by an expression from Jones of his willing-
ness to pay all dues required as well as the initiation fee. It thus stands as a further effort
by Jones to perfect his membership in Local 208 , to which Local 208, by its failure to reply,
only indicated its continued adherence to an already expressed position that it regarded
transfer as the more appropriate means for Jones to become a member of the local.
CLARK-INLAND CARTAGE, ETC. 355
to Local 208 to straighten out his difficulties 6' The version of Jones and those of
Burbidge and MacDonald as to what transpired after receipt.of the 72-hour notice
differ in some particulars. Jones states that Burbidge told him that he would be
through on Friday, February 8, if he did not clear up his problems with Local 208.
Burbidge acknowledges a conversation with Jones concerning the 72-hour notice,
but states that when Jones inquired what Clark-Inland proposed to do about the
notice, Burbidge had replied, "I'm not going to do anything." According to Jones,
on Friday, February 8, he had a telephone conversation with Dispatcher MacDonald,
during the course of which MacDonald had informed him that he had been told
by Local 208 that the 72-hour period would not be up until Monday, February 11,
because-the days in the intervening weekend were not to be counted. Jones, in
effect, acknowledges that he was told he could take the truck and go down to
Local 208 on Friday afternoon but he states that he told MacDonald that he had
"been down there already quite a bit . . ." and that he did not see "much point in
[his] going down there again." Jones says that he then told MacDonald that
"being as I only got one more day to work, how would it be if I take off Monday
and go down to the Union and see if these people can't reconsider and let me join
their local," to which MacDonald replied, "This would be fine." Jones states he
then asked MacDonald, "Now if I don't get this situation straightened out, there
won't be any need in my showing up for work . . ." to which MacDonald replied,
"I can't let you go to work if you don't have a card from the union because the
72-hour notice would be up Tuesday definitely." MacDonald acknowledges the
telephone conversation with Jones, admits that he told Jones that the 72-hour period
would be up on Monday, and that he might take the truck on Friday to go to the
union office. He denies, however, that Jones asked for time off on Monday, but
claims that when he asked Jones if he had straightened out his problems with
Local 208, Jones had replied, "It makes no difference anyway. - I am quitting at
the end of the day." MacDonald denies that he ever told Jones that he would not
be permitted to work after the expiration of the 72-hour notice without a clearance
card from Local 208.
Jones did not report to work at Clark-Inland on Monday, February 11. According
to him, early on the morning of that day, he went to the local office. He was advised
by the receptionist that neither Secretary-Treasurer Blackmarr nor any other union
representatives were present in the office at that time, and that she had no authority
to help him with his problems. Jones acknowledges that he remained at the office
only a few minutes and that neither during the remainder of the day nor at any
other time did he make further efforts to reach Blackmarr or any other representa-
tive of Local 208. Representatives of Local 208 testified that at all times during
that day one or more business agents were present in the union office. Jones did
not report for work on the following day at Clark-Inland. He insists that he did
not do so because he did not have a clearance card from Local 208 and he "had
already been informed if [he] didn't have a card [he] wouldn't be eligible to go
back to work." Jones returned to Clark-Inland either Friday, February 15, or
Monday, February 18, to pick up his check. At that time he observed that the
termination given him by Clark-Inland showed him as having voluntarily quit on
February 8. He protested to Dispatcher MacDonald that he had actually been
forced off the job because he was unable to get a union clearance, and he asked
that MacDonald correct the termination to show this to be the fact. MacDonald
took the position that Jones had quit, and told him that if he wished to have any
change made in the record, he would have to take up the matter with Assistant
Manager Burbidge and Manager Schaeffer. Jones went to Burbidge and Schaeffer
O Both Burbidge and MacDonald deny obtaining knowledge of the nature of the diffi-
culties Jones was having with Local 208 until sometime following Jones' termination.
Jones insists that he both explained and discussed his transfer problem with MacDonald.
I credit Jones in this regard. MacDonald himself was a former member of Local 208 and
was well informed concerning its functioning. His duties as a dispatcher demanded some
familiarity with the operation of the contract, and he was in frequent contact with repre-
sentatives of Local 208. MacDonald appears to have thought well of Jones as a driver,
and there is nothing to indicate that the two were not on good terms in other respects.
I am unable to believe that when it became apparent that Jones was having problems
with Local 208 which might affect his continued employment, MacDonald was not in-
formed either by Local 208 representatives or by Jones himself of the nature of the diffi-
culty. Accordingly, I find that, at least since shortly after receiving the 72-hour notice,
Clark-Inland had knowledge of the position Jones was taking regarding membership by
transfer, and knowledge that this was an issue between Jones and Local 208.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and urged them to make the change in the records , pointing out that unless this was
done , he would have to undergo a 5-week waiting period before becoming entitled
to unemployment compensation . After checking with MacDonald , both Burbidge
,and Schaeffer upheld . MacDonald in his view that Jones had quit , and.refused to
make any change in the records . It is the position of Clark-Inland that, in substance,
Jones acknowledged to them that he had quit but was pressing for the change in
.the records to enable him to get unemployment compensation at an earlier date?
C. Discussion and conclusions
The central factual issues turn on whether Jones reasonably concluded that further
efforts on his part to become a member of Local 208 by means other than transfer
would be futile, and whether he reasonably concluded that failure to obtain a union
clearance would necessarily result in his termination by Clark -Inland . Although
it is not beyond the realm of possibility that such results might have come about,
I am convinced , upon the entire record , that it is more reasonable to conclude that
such were not the inevitable consequences to Jones if he persisted in his refusal
to accept membership by the transfer process.
It is clear that by mid-October , both Jones and Local 208 had taken firm positions.
Jones announced , at that time, that he wished to become a member of Local 208,
and he forthwith tendered his initiation fees. Local 208 advised him that it doubted
the legality of dual membership and could not then grant him membership except
through use of the transfer procedure.8
As noted above, whatever expression of its views Local 208 made at this time,
it was also made clear to Jones that it took this position solely because it questioned
the legality of dual membership. He was told then that the matter would be given
further consideration, and that any action on his status would be deferred until the
issue could be thoroughly explored with legal counsel and higher union officials.
Croysdill thereafter did take up 'the matter with counsel for Local 208, but got no
firm answer . For a period of some months, the issue remained in a state of suspen-
sion while the union officials concerned themselves with election problems. How-
ever , when Edwin Blackmarr took over as secretary -treasurer in the latter part of
January, a new effort was initiated to resolve Jones' status . It was not until Janu-
ary 31, 1963, that Jones again visited the union office, ostensibly to discuss his pro-
7 The State of California Department of Employment initially ruled that Jones had
voluntarily left )its employment without good cause, and that therefore he was disqualified
to receive unemployment benefits for 5 weeks thereafter . Jones appealed this ruling, and
a hearing was held before a referee who affirmed the initial ruling of the department. The
referee's decision was thereafter appealed . The decision was affirmed by the appeals board
of the department to the extent that benefits were denied during the 5-week period. It is
apparently the view of the department that a claimant leaves his work without good cause
when he refuses for noncompelling reasons to join a bona fide labor organization . Essen-
tially the appeals board holds that no compelling reason existed for Jones not becoming a
member by using the transfer process , and that thus he left work without good cause.
The instant case arises under a different statute and does not necessarily present the
same issue . Therefore I place no reliance upon the decision of the department in reaching
any of my conclusions herein.
8 Local 208 argues that neither at this or any other time did Jones make a valid tender.
The record clearly establishes , however, that in October Jones gave the receptionist the
t50 initiation fee and expressed willingness to do anything required to perfect new member-
ship . This money was returned to Jones only after his discussion with Croysdill had made
it clear that membership on that basis was not then acceptable to Local 208 . There is no
indication that Local 208 was basing its position on a claim that Jones was not offering
the required amount. By using the transfer route wlfich Local 208 was suggesting, Jones
would only have had to pay a 50-cent transfer fee. When Jones sent in his $25 check In
January 1963 , he again indicated willingness to pay any initiation fee, or other . charges,
which might be required as a condition of his becoming a member of Local 208. He re-
peated this to Blackmarr on February 5, when he met him at the plant . I find that at
all times since October 18, 1962, Local 208 was aware that the issue turned upon its will-
ingness to accord Jones membership by means other than the transfer process, that at the
outset Jones had tendered the initiation fees ordinarily required of new members, and
that at all times thereafter he had made clear his willingness to pay the initiation fee or
any dues required to make him a member in good standing of Local 208. I find, therefore,
contrary to the claim of Local 208, that Jones had made a valid tender of all dues and
initiation fees required to become a member of Local 208.
CLARK-INLAND CARTAGE, ETC. 357
posed dual membership . Byhis own account , he was only .told that Local 208 still
felt that he should follow the transfer route, but that if he did not , Local 20.8 didn't
know what it was "going to do." Later there came the cheated exchange on Febru-
ary 5 between Jones and Blaekmarr, occurring in a nonbusiness situation. The
respective :positions .of both Jones and Local 208 at this encounter remained -un-
changed, -but as I havefound above, I, regard Blackmarr 's position as more a demand
that Jones come to the office than a flat assertion that he could only become a mem-
ber by transfer . While it is true that Blackrnarr gave Jones no assurance at this time
that he would necessarily be permitted to become a member of Local 208 by any
means other than itransfer , it is equally clear ,that he left the door open -for further
,consideration if .Jones would :come ;in. It was Jones' failure to appear on the fol-
lowing day -that precipitated the sending (of ,the 72-hour notice. - The notice, by its
own terms , was not self-executing , but ,it envisaged a further meeting between Jones
and Local '20.8 and the possibility ,that any issue between them might have been re-
solved and;a clearance obtained.
Jones does -not deny that he had been told that his request was one of doubtful
legality, and would have -to be considered by attorneys for Local 208. He does not
-claim that the attorneys -or any higher officials of Local 20,8 or the International had
,ever stated that the issue -had ;been definitively resolved against him . Representatives
of Local 208 were clearly aware that possible liabilities under the Act might result
if the local .unlawfully caused Jones ' discharge . I credit the assertion of Local 208
that,the 72-hour notice was sent primarily as a means ,of precipitating action ,by get-
ting Jones into the office fora final determination ,of the . pontroyersy, .and that it was
not ,necessarily intended as a final ,decision to stand for ,as long as Jones ,refused to
transfer his.membership.
Finally , it is in large .measure Jones' own conduct that makes unconvincing the
claim ,that he justifiably.relied upon Local 20 8's repeated .assertions favoring.trans-
.fer as its final '!or ;else" - position . The 72=hour ,notice made . Jones .aware that Local
208 was serious and that failure to clear up the issue might lead to his termination,
.but this result was not inevitable . Jones' reaction was hardly that of a titan seeking
to,exhaust ,all possibilities of .reaching a solution favorable to him . He had been
offered time off .by .Clark-Inland .on Friday .to go to ,the ,union .office .but jie had de-
-cline.d to avail himself of it . He insists that he took a whole - day off from work on
Monday, the last day of the 72-hour .notice, for the express purpose of ,getting "down
there and see if I could ,get this ; situation straightened , out. " Yet upon ,going to the
union office in the early morning of !his day off, he spoke only with ,the -recePtionist,
and stayed around for only a few minutes when informed that .no business agents
were present in the office at the time . Local 208 'insists that one or more business
agents were present at all ,times on.that .day. 'Even if it -be assumed that no -business
agent was actually in the office when Jones arrived , it is not established that re-
sponsible officials were not there for.most of the ,day. 'Jones does not explain why
"he.did not stay longer at'the time, .or why he did not return later in the day. '-I4nd it
,difficult -to believe that a man, faced -with possible -termdnation . of 'his job, who was
taking the entire day off from work ;for the announced p urpose of "straightening
,out" an admittedly novel problem with 'Local 208 , -would give -up so easily if he
were really determined to bring ;about .a solution . 'His conduct ;is more consistent
with an attitude of not really .caring whether 'the problem was -solved than with an
overriding desire to:resolve:it favorably. It is further significant , in this connection,
that'Jones made -no effort to -test the matter by returning to;his job after the expiration
of the 72-hour notice. Clark=Inland is emphatic in its insistence that it was not
-prepared to terminate Jones even if he -reported,without a clearance . Whether Local
'208 -would have continued to press for his termination in the absence of a 'final de-
termination as to his status , ,thus becomes a matter of -conjecture . I find , therefore,
that Jones , -by his own conduct occurring in the context above outlined :has failed to
Join issue with Local 208 on the question of its insistence upon his termination as
expressed in the '721hour notice , and that thus it cannot be found that 'Local 208
-caused , -or attempted to,cause, Jones' termination in violation of -Section 8.(b).(2)
-of the Act. Accordingly I shall recommend that this allegation ,of the.complaint
be dismissed.
-Finding that Local 208 is not responsible .for .causing Jones' discharge ,does not
necessarily absolve Clark-Inland if it be established that it -terminated Jones' em-
ployment upon what it reasonably regarded . as Local 208 's demand . Clark-Inland
-,defends its action 'by'claiming that Jones quit , .and was not terminated . Jones,.as
we have seen , insists that he did not come back to work on Tuesday because :be -was
,relying on 'MacDonald 's statement,of the previous Friday that,Clark-Inland -would
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not permit him to work absent a clearance from Local 208. The General Counsel
claims that Jones, having satisfied himself that such clearance would not be, forth-
coming without abandoning his position on the transfer issue, was entitled to rely on
MacDonald's statement, thus making a report back to work a futile gesture. I ques-
tion that MacDonald ever so advised Jones.. There is undisputed evidence that de-
spite a long bargaining history including contracts with union-shop clauses, no person
had ever before been terminated by Clark-Inland pursuant to a 72-hour notice, and
that there were actually persons working who had received such notices, but had
never obtained clearances. MacDonald was, of course, interested that Jones clear
up his difficulties with Local 208. He had unquestioned authority to hire and fire
for ordinary reasons, but it does not appear that this extended to unusual situations,
especially to one in which the termination was at the behest of a union, and statu-
tory liability might thereafter be a consequence. Such unusual situations were to
be taken up with higher officials, and possibly with the employer's legal department.
MacDonald was a long-time employee well acquainted with the operation of the
collective-bargaining agreement, and it is extremely unlikely that he would have
undertaken to tell Jones in unequivocal terms that if he appeared on Tuesday with-
out a clearance he would not be permitted to work. Accordingly, I find, contrary
to Jones assertion, that he did not do so. Even if it be assumed, however, 'that
MacDonald made such a representation, Jones' conduct makes it doubtful that he
relied upon it in failing to report. Jones' failure to pursue the matter with Local
208, after assertedly taking the day off for this express purpose, suggests an inten-
tion on his part more nearly consistent with MacDonald's testimony that Jones had
told him that he was quitting, then with the claim now made that Jones regarded it
as a certainty that he would be forced off the job if be returned without a clear-
ance, and I so find. Finally, even assuming that Jones was relying upon MacDonald's
representation that a clearance was a condition of returning, Jones has foreclosed
the determination of liability upon the part of Clark-Inland by failing to make a fur-
ther effort to obtain a clearance. Possibly he might have obtained one, and if so it
is clear that Clark-Inland would not have terminated his employment. Under all
the circumstances I am convinced, and find, that Jones' entire conduct in relation to
Clark-Inland is more consistent with his voluntarily giving up on the issue and quit-
ting, than with his being forced off the job by Clark-Inland at the demand of Local
208. I therefore find that Clark-Inland did not unlawfully terminate Jones, as alleged
in the complaint, and that it has not been established that Clark-Inland has vio-
lated Section 8(a) (3) of the Act. Accordingly I shall recommend that this allega-
tion of the complaint be dismissed.
The General Counsel urges that Local 208 unlawfully caused, and Clark-Inland
unlawfully effected, Jones' discharge. Local 208 asserts that even if it be found re-
sponsible for causing the discharge of Jones, it was motivated by considerations
lawful under the Act. If Local 208 is correct in this contention, Clark-Inland also
would be absolved of responsibility even if found to have terminated Jones. It is,
of course, a well-established principle that where a union causes the discharge of an
employee to whom it has denied membership despite a tender of the dues and
initiation fees required it acts unlawfully .9 Counsel for Local 208 refers to an
equally well-established principle that the Board has no authority to police the in-
ternal affairs of a union, and that a union in administering a union-security agree-
ment may require different initiation fees and dues of persons differently situated so
long as they are based on a reasonable classification and are not discriminatory.10
Counsel for Local 208 would distinguish the Pape case on the facts. While I am
disposed to regard the Pape case as distinguishable, and to consider the Food
Machinery principle as more nearly applicable than the Union Starch principle, I
find it unnecessary to make a finding to this effect or to treat with the matter further
inasmuch as we do not reach this legal issue in view of the above factual findings.
Since the allegations that Clark-Inland has violated Section 8(a)(1), and that
Local 208 has violated Section 8(b)(1) (A) of the Act, are derived solely from the
8(a)(3) and 8(b)(2) allegations, I will also recommend that they be dismissed.
0 The General Counsel urges Union Starch & Refining Company, X87 NLRB 779, enfd.
186 F.' 2d 1008 (C.A.•7), cert. denied 342 U.S. 815 as a leading case in support of this
principle . He also cites Pape Broadcasting Company ( Radio Station WALA), 1.04 NLRB
29, enfd . 217 F. 2d 197 (C.A. 5), as a case involving a transfer issue which parallels the
instant case on the facts.
10 Local 208 cites Food Machinery and Chemical Corporation, 99 NLRB 1430 , as a lead-
ing case supporting this principle.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 359
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Clark-Inland Cartage, Division of Consolidated Freightways , is an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Local Freight Drivers, Local No. 208, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Local 208 and Respondent Clark-Inland have not engaged in un-
fair labor practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, it is hereby recommended that the complaint be dis-
missed in its entirety.
International Longshoremen 's and Warehousemen's Union and
its Local Union No. 10 [Howard Terminal ] and Operating En-
gineers, Local Union No. 3, AFL-CIO. Case No. °°0-CD-97.
June 8, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10 (k) of the Act, following the
filing of charges by Operating Engineers, Local Union No. 3, AFL-
CIO, hereinafter sometimes called Local 3 or Operating Engineers,
under Section 8(b) (4) (D). The charges, as amended, allege, in ef-
fect, that on or about February 14, 1963, International Longshore-
men's and Warehousemen's Union and its Local Union No. 10, herein-
after called Respondents, caused Respondent's members employed by
Howard Terminal, hereinafter called Howard, to engage in a work
stoppage in order to force or require Howard to assign certain crane
work to longshoremen or members of Respondents rather than to mem-
bers of Local 3. A hearing was held on June 18, 19, 20, 21 and on
August 6 and 7, 1963, before Hearing Officer Robert V. Magor. All
parties I participated in the hearing and were afforded a full opportu-
nity to be heard, to examine and cross-examine witnesses and to ad-
duce evidence bearing on the issues. The rulings of the Hearing Officer
made at the hearing are free from prejudicial error and are hereby
affirmed. Briefs filed by the Respondents, Local 3, and PMA on be-
half of Howard and itself, have been duly considered.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
1 Pacific Maritime Association , hereinafter called PMA, was permitted to Intervene as
the collective-bargaining representative of Howard.
147 NLRB No. 42.