Cushman Motor Delivery Co.

National Labor Relations Board - Board Decisions

Mar 6, 1963

141 N.L.R.B. 146 (N.L.R.B. 1963)

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 587,
AFL-CIO, or any other labor organization.
WE WILL offer to the following employees immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges:
Otto L. Mitchell Jessie L. Mobley
George L. Manning Victor Norman Potts, Jr.
Leroy R. Miller Robert L. Linscomb
Charlie Lee Allen David L. Stanton
Earl Kimball, Jr.
WE WILL make whole the above employees and Enoch James Britt and Tom
Gary for any loss of pay suffered as a result of our discrimination against them.
WE WILL rescind all unilateral changes made on and after March 9, 1962,
in the hours and days of work and in other terms and conditions of employ-
ment of our employees.
WE WILL, upon request, bargain collectively with the above-named labor or-
ganization as the exclusive bargaining representative of all employees in the
appropriate unit with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist the above union, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, to engage in
concerted activities for the purposes of collective bargaining or mutual aid or
protection, or to refrain from any or all such activities, except to the extent that
such rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3) of
the Act, as amended.
All our employees are free to become, remain, or refrain from becoming or re-
maining members of International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local 587, AFL-CIO, or of any other labor or-
ganization, except to the extent that this right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employment, as author-
ized in Section 8(a) (3) of the Act, as amended.
OIL CITY BRASS WORKS,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE -We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston 2, Texas, Telephone No. Capitol
8-0611, Extension 296, if they have any question concerning this notice or compli-
ance with its provisions.
Cushman Motor Delivery Company and Walter E. Flack
Local 710, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Walter E. Flack.
Cases Nos. 13-CA-4513 and 13-CB-1140-2. March 6, 1963
DECISION AND ORDER
On June 5, 1962, Trial Examiner Sidney Sherman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent Company and the Respondent Union had engaged in and
141 NLRB No. 10.
CUSHMAN MOTOR DELIVERY COMPANY 147
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 Intermediate Report. Thereafter,
the Respondent Company and the Respondent Union filed exceptions
to the Intermediate Report with supporting briefs.'
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 Rodgers, Fanning, and Brown].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and finds merit in the exceptions of the Respondent Company
and Respondent Union. Accordingly, the Board adopts only those
findings, conclusions, and recommendations of the Trial Examiner
which are not inconsistent with this Decision and Order.
The Trial Examiner found that the Respondent Company and the
Respondent Union violated Section 8 (a) (1) and (3) and Section
8(b) (1) (A) and (2) of the Act, respectively, in connection with the
discharge of Walter E. Flack. We do not agree.
Flack had been employed by the Respondent Company from De-
cember 1953 until December 1960, at which time he was discharged
for cause. He was rehired in June 1961 at the request of his bargain-
ing representative and on the promise that he would perform his work
satisfactorily.
On September 11, 1961, about 8:30 a.m., Flack, a truckdriver, left
Respondent's premises with a load to be delivered to a glass company,
but did not make the delivery. He telephoned his dispatcher that he
could not make delivery and was told to return with the load. Flack
returned to the Cushman office about 10 a.m., where he reported sick
and took the balance of the day off. He then went to the police station
to file a complaint against Peter Janopoulos, business representative
for the Respondent Union.2 Flack left the police station about noon-
time and went to a local hotel where he participated in television broad-
casts about his argument with Janopoulos earlier that day. He fin-
ished about 2 p.m., and then proceeded to make further television
broadcasts on the same matter at a spot located across from the Cush-
1 In view of our decision herein, we deny Respondents ' motion to reopen the hearing to
adduce newly discovered evidence.
2 Flack is a supporter of a group movement known as the Rebel Teamsters Union,
which is opposed to Respondent Union. In July 1961 , Flack began activity on behalf of
this group . His activity included serving as secretary -treasurer , propagandizing its aims
and purposes, and distributing its literature.
Janopoulos and Flack engaged in an argument when the latter reported for work on the
morning of September 11. During this argument, Janopoulos threatened Flack with
violence over his activities on behalf of the Rebel Teamsters Union
708-006-64-vol. 141-11
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man terminal. The latter effort was finished about 5 p.m. Flack drove
his own car during these activities.
On October 11, 1961, about 1 p.m., Flack arrived at the Clairmont
Transfer Company dock with a consignment and, before starting his
lunch hour, proceeded to that portion of Clairmont's premises where
bills of lading are posted. Flack so proceeded in order to deliver the
bill for the consignment which his truck carried, and thereby have his
truck unloaded in turn. While going to and from the bill rack, Flack
distributed literature of the Rebel Teamsters Union to various em-
ployees of Clairmont, all of whom were engaged in work. He then
spent the better part of the balance of his lunch hour distributing
such literature to various truckdrivers as they arrived at the Clair-
mont dock. Shortly after 2 p.m., Flack was summoned to answer a
telephone call from Barney Cushman, president of the Respondent
Company. Cushman told Flack that lie had received telephone com-
plaints about his distributing literature at the Clairmont dock and
about his interference with the work of Clairmont's employees.
Cushman told Flack that he did not care one way or another about the
organization to which the latter belonged, but that he could not dis-
tribute leaflets on Cushman's time. Flack replied that he was distrib-
uting during his lunch hour, that he was not paid for this time, and
that he could do whatever he pleased on his own time. Cushman, un-
impressed by this answer, replied that Flack was in control of Cush-
man's truck and that he would be given a warning notice because of
his conduct.
Flack then returned to his truck, which had not been reached for
unloading. About 10 or 20 minutes later, three of the Respondent
Union's organizers arrived on the scene. One of the three, Bonarigo,
told Flack that he could not pass out the leaflets. Work came to a
halt when Bonarigo ordered Clairmont's employees to stop work, add-
ing that there was not going to be any movement of freight until Flack
got off the dock. Daniel White, the office manager of the Clairmont
dock, told Flack that he could not accept the freight. Thereupon,
Flack called his dispatcher and told him that he could not make
delivery. The dispatcher ordered Flack to take his freight to another
terminal.
Later that day, about 3 p.m., White telephoned Barney Cushman
and asked if the freight, which had been taken away from the Clair-
mont dock, could be returned for handling. When Cushman advised
him that it was too late to do anything about it, White asked why
Cushman allowed its driver to pass out literature and to disturb per-
sonnel at other docks.
On October 13, 1961, Flack arrived with a loaded truck at the dock
of the Scherer Freight Company. While unloading his truck with
the help of one of Scherer's employees, Flack attempted to convert this
CUSHMAN MOTOR DELIVERY COMPANY 149
employee to the Rebel Teamsters' cause. The Respondent Union's
steward at the Scherer dock, Smith, overheard this solicitation and di-
rected Flack to desist from his Rebel Teamsters talk. A fight then
occurred between Smith and Flack, and work stopped at the Scherer
dock on Smith's order not to move any freight so long as Flack was
there. Ultimately, Flack called his dispatcher and notified him that
he could not complete the delivery at Scherer, whereupon Cushman
assigned another driver to complete the delivery. Flack then returned
to the Cushman terminal, where he was given a letter of discharge.'
The incidents at Clairmont and Scherer were, inter alia,4 stated in the
letter as reasons for the discharge.
We do not find, as did the Trial Examiner, that Flack was dis-
charged for engaging in protected activity and that the reasons given
by the Respondent Company to Flack for his discharge were pretexts.
On the contrary, we find that Flack was discharged for cause, with the
Scherer incident the culminating factor. In so finding, we note that
Flack had been discharged for cause in December 1960 and that he
had been rehired in June 1961 at the request of his bargaining rep-
resentative and on the promise that he would perform his work satis-
factorily. Despite the foregoing, Flack proceeded to engage in the
behavior set forth in the discharge letter. In particular, we note his
activities on September 11, supra, when he claimed inability to work
because of sickness and spent the rest of the day before television
cameras and in other activity as described above. On October 11,
Flack distributed literature, while going to and from the Clairmont
rack and before starting his lunch period. Such distribution was to
employees of Clairmont while they were on their worktime. The
Respondent Company told Flack at this time of its concern over
Flack's interference with the work of the employees of another com-
pany, and that he was to receive a letter of warning regarding the
whole affair. Nevertheless, on October 13, only 2 days following the
Clairmont incident, and before the warning letter was completed,
Flack deliberately solicited an employee of Scherer. This solicitation
was on Flack's worktime, caused a work stoppage at the Scherer dock,
and resulted in another failure by Flack to make delivery of assigned
freight, It was, we believe, the factor which triggered the discharge.
Upon the entire record, we find that Flack engaged in unprotected
activity, was in fact discharged for that activity, and, therefore, was
discharged for cause.
In view of our finding that Flack was discharged for cause, and
that Respondent Company did not violate the Act, we further find,
3 The warning notice concerning the Clairmont incident was being drafted on the
morning of October 13 when Barney Cushman was told that Flack was involved in a
similar incident After sending another driver to complete Flack's delivery , Barney
Cushman decided to have the warning notice converted into a discharge letter.
'The other reasons were not related to activity on Flack's part which could be classi-
fied as protected within the meaning of the Act.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in disagreement with the Trial Examiner, that the Respondent Union
also did not violate the Act.
Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
This proceeding was heard before Trial Examiner Sidney Sherman in Chicago,
Illinois, on April 3, 4, and 5, 1962, upon the complaint of the General Counsel and
answer of the Respondents. The issue litigated was whether the Respondent Com-
pany violated Section 8 (a) (3) and (1) of the Act, and the Respondent Union violated
Section 8(b) (2) and (1) (A) of the Act with respect to the discharge of Flack. Both
Respondents and the General Counsel filed briefs after the hearing.
Upon the entire record , and my observation of the witnesses , I adopt the follow-
ing findings and conclusions:
1. THE BUSINESS OF CUSHMAN
Cushman Motor Delivery Company, herein called Cushman or the Respond-
ent Company, is an Illinois corporation with a principal place of business at Chicago,
Illinois, and is engaged in the transportation business as a common carrier. Its annual
revenue exceeds $4,000,000, of which more than $1,000,000 is derived from interstate
hauling.
I find Cushman is engaged in commerce within the meaning of the Act and that
it will effectuate the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
Local 710, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , hereinafter called Respondent Union or Local 710, is a
labor organization within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges that the Respondent Company violated Section 8(a)(3) and
(1) of the Act by discharging Flack because of his union or concerted activity, and
that the Respondent Union violated Section 8(b)(2) and (1)(A) of the Act by
causing or attempting to cause Flack 's discharge because of his activities on behalf
of the "Rebel Teamster Union "
In their answers, the Respondents admitted the discharge of Flack but denied all
pertinent allegations as to the reason for his discharge.
Accordingly, the only issues framed by the pleadings were whether Flack's dis-
charge was due to concerted activities, and whether the Respondent Union caused
or attempted to cause his discharge because of such activities.
B. The evidence
Flack was first hired by Cushman, as a city driver, in 1953 and was so employed
until December 1960, when he was discharged for reasons not here relevant. in June
1961, he was rehired by Cushman at the request of his bargaining agent (Chicago
Truck Drivers Independent Union). In July 1961, Flack began to advocate the cause
of the "Rebel Teamsters Union." Flack testified that he was at the time of the
hearing secretary-treasurer of that "Union ," and that William Bums was president.
However, Flack admitted that the "Union" had no dues-paying members, but only
"sympathizers." According to Flack, the aims of the Rebel Teamsters were to im-
prove existing grievance procedures , obtain better contracts , and elect honest union
officers i During the summer of 1961, Flack distributed literature on behalf of the
Rebel Teamsters Union and otherwise advertised its aims to members of various
Teamsters locals in Chicago, including the Chicago Truck Drivers Independent Union,
1 According to Flack, the Rebel Teamsters Union's constitution required the expulsion
of any union officer who Invoked the fifth amendment in the Federal Constitution
CUSHMA__\' MOTOR DELIVERY COMPANY 151
previously mentioned , the Respondent Union , and another local of the Teamsters
Union in the Chicago area .2
On September 11, 1961 ,3 Janopoulos , a business agent of Respondent Union,
approached Flack at the premises of the Respondent Company, directed some obscene
epithets at him and at Burns (his fellow-officer in the Rebel Teamsters Union),
forbade Flack to pass out any literature or "talk against" the Respondent Union, and
threatened "to break [Flack] in half" and that "any 710 dock I went on he was
going to have me run off the street a couple of blocks and pour kerosene" on a
sensitive part of Flack's person. Janopoulos concluded by inviting Flack to "step out
in the street" and have a "real tussle." Flack declined the invitation. The foregoing
testimony was not contradicted by Janopoulos, although he was present throughout
the hearing," and I credit that testimony.
The Clairmont Incident
About 1 p in. on October 11, Flack arrived with a loaded trailer at the dock
of Clairmont Transfer Company. He parked his vehicle at the dock and, while
awaiting his turn to be unloaded, he decided to take the next hour off. Under his union
contract he was entitled to take 1 hour for lunch at any time, within his discretion,
between 11 a.m. and 2 p in. However, instead of eating lunch, he proceeded to
distribute Rebel Teamster literature to the dockmen, who were members of the
Respondent Union, and to truckdrivers as they arrived on the scene .5 This continued
for about 40 minutes and at the end of this period Flack returned to his trailer and
sat there until shortly after 2 p.m.,6 when he was summoned to answer a telephone
call from Barney Cushman, president of the Respondent Company. Cushman's
call was prompted by telephoned complaints received by him a few minutes before
from two drivers to the effect that Flac'c was distributing literature at the Clairmont
dock and interfering with the drivers' work, and urging Cushman to remove Flack
fror'i the scene. In their telephone conversation, Cushman told Flack about these
complaints, and that Cushman did not care about Flack's union activity but he was
not to distribute literature on company time. Flack retorted that no company time
was involved in his activity as it occurred during Flack's "lunch hour," during which
he could do as he pleased. Cushman answered that he would give Flack a "warning
notice." 7
Flack then returned to his trailer, which had not yet been reached for unloading.
About 10 or 20 minutes later, three representatives of the Respondent Union arrived
on the scene-namely, Middleton, Eanarigo, and DeWan. All three were organizers,
and DeWan was, in addition, recording-secretary of the Respondent Union. There is
conflicting testimony as to the ensuing events. According to Flack, Bonarigo ordered
all the dockhands to stop work, declaring, "There isn't one piece of freight ... going
to be moved until this son of a bitch gets off the dock," and the dockmen complied
Local 705 The latter is not to be confused with the Chicago Truck Drivers Inde-
pendent Union, which is sometimes referred to in the record as Local 705 , a designation
which it recently abandoned.
1 Although Flack at first gave this date as September 27, he later indicated that he
might have been mistaken . Other evidence in the record is persuasive that September 11
is the correct date. Unless otherwise indicated , all events hereinafter related occurred
in 1961
'He testified about other matters.
5 This literature consisted of handbills announcing the aims of the "Rebel Teamsters
Union ," criticizing various officials of Teamsters locals , and appealing to members of such
locals to sign an authorization form in favor of the Rebel Teamsters Union as a basis for
a Board election.
6 According to Flack the exact time was 2 :10 ; according to Barney Cushman it was
2:20 It is not necessary to resolve this conflict
7 The foregoing findings as to the Flack - Cushman conversation are based on the testi-
mony of the two participants, which is in substantial agreement, except that Cushman
testified that Flack told him "I am on my lunch hour" [emphashis added], thereby giving
Cushman the impression that Flack was still engaged in distributing literature at the
time of the conversation , although Flack's lunch hour could not have extended, under his
union contract , beyond 2 pro. Also, according to Cushman , the report he received from
the two drivers a few minutes after 2 p in indicated that Flack was then still engaged
in distributing leaflets . It is not clear from Flack 's testimony whether he used the
present tense or past tense in referring to his activity on the Clairmont dock. However,
I credit Flack's testimony that he did not distribute any literature after 2 p.m.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with this order. Flack testified further that White, Clairmont's office manager, then
approached him and refused to handle his freight because of the work stoppage; and
that, after a visit to the police station, Flack reported to his dispatcher' that he could
not effect delivery. It is undisputed that his dispatcher then ordered Flack to take
his freight to another carrier, which he did.
Flack's version is corroborated by White, who testified that about 20 minutes after
Flack talked to Cushman on the telephone, as related above, he (White) went down
to the dock from his office, saw three strange men there with Flack, and noticed that
the dockmen had stopped work. In response to White's inquiry, an unidentified
member of the group on the dock stated that work had been stopped "due to the
difficulty" with Flack and that "the truck would not be worked unless he got out of
here." White thereupon ordered Flack to remove his truck, returned his bill of lading
to him with a notation that Clairmont could not unload his truck due to "union diffi-
culty," and, after indicating to the dockmen that the matter was settled, ordered
them back to work. They complied.
A different version was given by Palumbo, Clairmont's dock foreman and a mem-
ber of Respondent Union.8 He testified that: On October 11 between 1 and 2 p.m.,
he observed Flack at the Clairmont dock surrounded by dockmen to whom he was
passing out literature; the dockmen stopped work to read the literature; Palumbo
called the office of the Respondent Union and complained to Janopoulos that a Cush-
man driver was passing out leaflets at the dock and interfering with the work of the
dockmen; Palumbo urged Janopoulos to send someone down to tell the dockmen
"to get back to work" or they would risk disciplinary action; Janopoulos promised to
attend to the matter. Shortly thereafter the three aforementioned representatives of
Respondent Union arrived at the dock; Palumbo complained to them that Flack was
passing out pamphlets and had caused some of his men to stop work and some of the
men were still not working. The union representatives told Palumbo to order all the
dockmen to stop work and to assemble them together in order to "straighten this thing
out," and Palumbo complied. The union representatives expressed concern lest the
dockmen be disciplined for stopping work to read Flack's literature, and admonished
them not to listen to Flack, and to get back to work; Palumbo thereafter asked Flack
to leave because he was "tying" up the dock; it is a rule of the Respondent Union that,
in case of a slowdown, the business agent be notified, and the culprits told to "straighten
up" lest they be disciplined; and there is a rule of Clairmont against drivers loiter-
ing on the dock.
Middleton testified that on October 11. Janopoulos instructed him to take two others
with him to the Clairmont dock and find out what was amiss there; when Middleton
arrived at the dock about 1 p.m., Palumbo complained that the dockmen had quit
work and were talking to Flack, who was passing out literature, and Palumbo could
not get them back to work; Middleton saw some dockmen talking to Flack and others
reading handbills, and Middleton directed the dockmen to return to work.
Janopoulos testified that about 12:30 or 1 p in. on October 11, he received a call
from Palumbo reporting that a "Cushman driver" was passing out leaflets on the dock
and that some of the dockmen had stopped work, and in response to this call he sent
the three organizers mentioned above to the Clairmont dock. Janopoulos admitted
that Palumbo identified the Cushman driver as Flack, and that Janopoulos knew that
Flack was distributing Rebel Teamsters literature.
Neither Bonarigo nor DeWan appeared at the hearing Thus, according to Flack,
after he had ceased his propaganda activity, and shortly after he spoke to Barney
Cushman, Bonarigo caused all the dockmen to stop work in order to force Flack
to leave the dock; and White corroborated Flack that there was a complete work
stoppage, that its purpose was to force him off the dock, and that this occurred after
Flack spoke to Barney Cushman.9 Palumbo, while admitting that there was a com-
plete work stoppage and that it was ordered by Local 710's organizers, contended that
the purpose was not to force Flack off the dock but rather to permit the organizers
to address the dockmen in a group in an effort to restore the discipline which had
been disrupted by Flack's propaganda activities. Middleton, on the other hand, did
not even concede that there was a work stoppage induced by him or his colleagues,
but testified only to the disruption of work on the dock as a result of Flack's activities
and that Middleton ordered the men to return to work. According to both these
8 Although called by the General Counsel , he proved to he a hostile witness
9 Although White gave the time of the stoppage as 1:30 p in ., I find he was mistaken,
as Barney Cushman corroborates Flack that their telephone conversation occurred after
2 pm. As it has been found that Flack's propaganda activity did not continue beyond
2 p in , White's testimony insofar as it places the work stoppage after the Cushman-Flack
conversation , tends to corroborate Flack's testimony that the stoppage occurred after he
had ceased distribution of the handbills and returned to his truck.
CUSHMAN MOTOR DELIVERY COMPANY 153
witnesses, Middleton and his colleagues arrived on the scene in the midst of Flack's
activity, and not, as Flack testified, after such activity had been terminated.
In view of the foregoing conflict between Palumbo and Middleton, and, as Flack's
version is corroborated by White-the only disinterested witness to testify concerning
this incident-I credit Flack, and I find that on October 11, acting under instructions
from Janopoulos to deal with the situation at the Clairmont dock, Bonarigo caused
the dockmen to stop work in order to force Flack to leave the dock, that this occurred
about half an hour after Flack had ceased his propaganda activity, and that as a
result of this work stoppage Flack was unable to effect delivery of his freight to
Clairmont.
The Scherer Incident
On October 13, between 1:30 and 2 p.m., Flack arrived with a loaded trailer at
the dock of the Scherer Freight Company. There is no dispute that Flack began
to unload his truck with the help of one of Scherer's employees; that Flack while so
engaged attempted to convert this employee to the cause of the Rebel Teamsters; that
Smith, Local 710's steward on the Scherer dock, approached Flack, and that a scuffle
ensued between the two. There is, however, sharp conflict as to who was the
aggressor and as to the ensuing events. According to Flack, Smith entered Flack's
trailer, reviled Flack, directed him in obscene language to desist from his "Rebel talk,"
and invited Flack to step out on the dock, threatening to beat him up. Flack added
that: He put one foot on the dock, whereupon Smith struck him, knocking Flack
against a meathook that was hanging on the side of the trailer ; Smith then ordered
everybody on the dock to stop work and not to move any freight so long as Flack
was there; Flack then went across the street to call the police; after he returned to
the dock a sound truck arrived on the scene, and broadcast the admonition "not to
listen to the rebel talk and to stop the work"; five or six men, including Janopoulos,
emerged from the sound truck, as Janopoulos approached the dock, he said to Flack,
"You are a dead son of a bitch now," adding a particularly obscene expression; and
he attempted to attack Flack, but was held back by others.
Smith's version was as follows:
While working on the dock, he saw Flack in his trailer talking to one of Scherer's
checkers . This continued for about half an hour . Both men had papers in their
hands which Smith ascertained were applications for membership in the Rebel
Teamsters Union. When Smith asked the checker to come out of the trailer, both
men emerged . Flack held a meathook in his hand, and shouted , "Join the Rebel
Union"Observing that this caused the other dockmen to stop work, Smith ad-
monished Flack to return to his trailer. When Flack refused, Smith warned him that
he would call Flack's dispatcher and have his trailer removed from the dock so that
the dockmen could do their work. Thereupon, Flack flew into a rage, and struck
Smith across the chest with the side of the meathook , while reviling him as a "hill
billy son-of-a bitch" and declaring that Smith would cause him to lose his job.
Smith then told his supervisor, Wertz, about the work stoppage on the dock caused
by Flack's outburst, asked Wertz to intervene, which he agreed to do, and at the
same time called his business agent, Janopoulos , to get the men back to work.
Janopoulos arrived at the dock with the three organizers involved in the Clairmont
incident, and told the dockmen to go back to work. Smith denied that he saw any
sound truck approach the dock or heard anybody tell the dockmen to stop work or
to ignore the Rebel talk.'°
Although they testified about other matters, neither Janopoulos nor Middleton
was examined about this incident. As already noted, neither of the two other rep-
resentatives of Local 710 appeared at the hearing.
I have determined to resolve the foregoing conflict in favor of Flack for the follow-
ing reasons:
1. It is undisputed that it was he, and not Smith, who called the police to the
scene after the altercation described above.
2. Although two of the four Local 710 representatives involved in the incident
were present at the hearing and testified about other matters and there was no show-
ing that the other two were unavailable , Local 710 did not see fit to call upon any of
these four individuals to corroborate Smith.
3. I was impressed more favorably by Flack's demeanor than by Smith's. More-
over, I had an opportunity to observe Flack at some length during the course of
the hearing, as he testified for the better part of 2 days. He was highly articulate
and intelligent , and impressed me as a man of unusual integrity , even to the point
of eccentricity and unworldliness.
10 Smith did not dispute Flack's testimony that he summoned the police , and in fact
admitted that he (Smith) did not call them.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. If Smith's only concern was, as he claimed, to restore discipline among the
dockmen, it is not clear why he felt it necessary to invoke the aid of Janopoulos, his
business agent, after he had already notified his supervisor of the situation. It
would seem that the supervisor would be the logical one to handle a disciplinary
problem and that he would not need the aid of a union business agent.
Accordingly, I find that on October 13, in an effort to stop Flack's proselytizing
activity, Smith threatened Flack with physical violence, struck him, and ordered a
work stoppage on the dock to force Flack to leave, and that Janopoulos, at Smith's
request, came to his aid with a sound truck broadcasting an order to the dockmen to
stop their work and to ignore the "Rebel talk."
After the foregoing events and a visit to the police station, Flack called his dis-
patcher and notified him that he could not effect delivery, whereupon another driver
was assigned to complete the delivery. Flack then returned to Cushman, where he
was given a letter of discharge.
The Discharge Letter
This letter, dated October 13, drafted by Barney Cushman, and signed by Perlson,
Respondent Company's vice president, recites a number of instances of unsatisfactory
conduct on the part of Flack, including the above-described incidents at Clairmont
and Scherer, and concludes with a notice of discharge.
Barney Cushman, by his own admission, began to draft this letter in the morning
of October 13, as a warning letter, inspired by the incident at the Clairmont dock 2
days before. However, before completing the draft, he was told that Flack was
involved in another incident at the Scherer dock, and that Flack had been taken
away by the police, leaving his truck at the dock. After sending another driver to
complete Flack's delivery, Barney Cushman decided to convert his warning letter
into a discharge letter.ii
The letter cites the following misconduct by Flack during the second period of
his employment: 12
(1) The fact that one morning he reported sick, yet the same afternoon was seen
near Cushman's terminal posing for photographers and being interviewed for a
television program.
(The record shows that this incident occurred on the same day as Flack's en-
counter with Janopoulos at the Cushman terminal, which date I have found was
September 11. Flack admitted that he reported sick, but explained that this was
because he was emotionally upset by his encounter with Janopoulos and was other-
wise indisposed, so that he did not think it was safe for him to undertake the physical
and nervous strain of driving a heavy truck, although his condition was not serious
enough to interfere with such less taxing activities as he undertook that day. These
included driving his own auto, and posing for, and talking with, television camera-
men, who had learned of his encounter with Janopoulos and interviewed him about
it. In any event, whatever the merits of Flack's explanation, it is clear that Re-
spondent Company did not at the time of the foregoing incident deem it sufficiently
reprehensible to merit even a warning letter. It is admitted that throughout his
second period of employment Flack did not receive any such letter, nor is there any
evidence that he was otherwise reprimanded for the September 11 incident.)
2. The fact that in the morning of October 11, prior to his trip to Clairmont, he
took 45 minutes to deliver a load to a point only 41/2 miles from the Cushman
terminal, and that it took him 20 minutes to proceed from that point to Clairmont, a
distance of only 1 mile.
"The foregoing findings as to the discharge letter are based on Barney Cushman's
uncontroverted testimony.
12 At the outset, the letter makes brief reference to misconduct of Flack which allegedly
caused his initial discharge in December 1960. However, as he was reinstated despite
such misconduct, and in view of the number and character of his subsequent derelictions
cited in the discharge letter, I do not believe that any events during Flack's first period
of employment could have materially affected the decision to discharge him again. It was
for this reason that I excluded from the record testimony offered by both the General
Counsel and Respondent Company concerning the reasons for Flack 's initial discharge
Moreover , I have given no weight to testimony at the hearing concerning any of Flack's
shortcomings during his second period of employment which are not referred to in the
discharge letter . In view of the comprehensiveness of that letter , I deem it unlikely that
Cushman would have omitted any reference thereto if he regarded them as having any
bearing on Flack's desirability as an employee . Moreover, there was no specific testimony
at the hearing that such shortcomings contributed to Flack's discharge.
CUSHMAN MOTOR DELIVERY COMPANY 155
(Flack did not seriously dispute the accuracy of these figures. He was unable to
recall the reason for the delay on the first of these trips. As to the trip to Clairmont,
he explained that he stopped for coffee on the way to Clairmont. In any case,
Barney Cushman's testimony as to the events leading up to his decision to write
the October 13 letter made no reference to the foregoing delays but cites only the
events at Clairmont after Flack's arrival there. Moreover, I credit Flack's testimony,
which was not specifically denied by Barney Cushman, that he told Flack in their
telephone conversation on October 11, after reprimanding him for his activity at
the Clairmont dock, that he would receive a "warning notice." As Barney Cushman,
according to his own testimony, made no reference in this telephone conversation
to the time consumed by Flack in making his trips that morning, it is clear that
Cushman's mention of a warning notice was related only to, and prompted by, the
occurrences at the Clairmont dock after Flack's arrival. I find, therefoie, that the
decision to issue a warning notice was not influenced by the foregoing delays but
only by the later events.)
3. The fact that he circulated "rebel teamster literature and application blanks"
at the Clairmont dock on company time, and that this activity created a "disurbance,"
and tied the dock up in a "labor dispute," resulting in the rejection of Flack's freight
and its reassignment to another carrier at some additional expense to Cushman.13
(It has already been found that the foregoing activity did not occur on company
time but during time that Flack was entitled to treat as his own. As to the significance
of the fact that Flack's activity caused Cushman to incure the additional expense
involved in reassigning his load to another carrier, see the discussion below.)
4. The fact that the handbills distributed by Flack at Clairmont contained "deroga-
tory comments" about Cushman. This has reference to an appeal in the handbills
for action to force various carriers, including Cushman, to discontinue their alleged
practices of overloading trucks, switching license plates, using defective equipment,
and destroying records.
(Whether or not these charges were justified, the matters complained of, par-
ticularly the use of defective equipment, affected the welfare of the drivers whose
support the Rebel Teamsters was seeking. Accordingly, I do not deem the foregoing
language in the handbills to be so unrelated to the object of Flack's activities as to
remove such activities from the protection of the Act.14 It follows that, even if
this language influenced the decision to discharge Flack, it would not be a proper
ground for discharge under the Act.)
5. The fact that on October 10 Flack distributed literature at the Cushman dock
just before he punched out for the day.
(Barney Cushman's testimony under cross-examination shows that this charge
was based on information received by him from one of his dockmen on October 12.15
However, the fact that he did not mention this in testifying, under direct examination,
concerning the events leading up to Flack's discharge, together with the absence of
any evidence that Barney Cushman knew about, or referred to, this incident when he
notified Flack on October 11 that he would receive a warning letter, is persuasive
that it did not materially affect Flack's discharge.)
6. The fact that on October 13, at the Scherer dock, Flack, instead of unloading
his truck, began distributing pamphlets, which "enraged the dockmen at Scherer
to the extent that they refused to unload" Flack's truck, and which resulted in an
altercation which "completely disrupted the Scherer dock for several hours," and
necessitated the dispatch of another driver to complete Flack's delivery.
(The only evidence that Flack was distributing literature at Scherer was the testi-
mony of Smith, related above, that he saw Rebel Teamsters literature in the hands
of Flack and of the checker who was helping him unload. This was denied by Flack,
whom I credit. Flack admitted, however, that he was talking to the checker about
the Rebel Teamsters movement, while unloading, and it is clear that this occurred
on company time. (The implications of this will be discussed later.) The record
does not, however, support Cushman's charge that the altercation between Flack
and Smith disrupted the Scherer dock for several hours. It is true that after their
altercation, Flack and Smith left the dock for the police station where they remained
11 As already related, when Clairmont's office manager refused to accept Flack's freight,
his dispatcher instructed him to deliver the freight to another carrier
14 Cf N.L.R.B v. Local 1229, International Brotherhood of Electrical Workers, 346
US 464
1511arney Cushman's testimony was that this activity by Flack was reported to have
occurred in the evening of October 11, rather than October 10, as indicated in the latter
There is no competent evidence that Flack actually engaged in this activity on Cushman's
premises and time on either date.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for about an hour. However, there is no evidence as to the effect of such absence
on Scherer's operations generally.)
C. Discussion
Cushman's counsel contended at the hearing that Flack was discharged for all the
reasons alleged in the October 13 letter, as well as for other reasons not there cited,
relating to Flack's second period of employment. As already stated, in view of
the extensive catalogue in the October 13 letter, it is difficult to believe that any
matters which were not there referred to (or otherwise called to Flack's attention
at any time) could have materially influenced Cushman's decision to discharge Flack.
Even as to the matters alleged in the letter, the September 11 incident as already
stated does not merit consideration, as it did not elicit any reprimand or warning
letter at the time; nor, for reasons already noted, do the other incidents mentioned
in the discharge letter, except for the events on the docks at Clairmont and Scherer.
It was these events which admittedly prompted Barney Cushman to write the
"warning-discharge" letter.
As to the Clairmont and Scherer incidents, the question arises whether a discharge
because of those incidents violated the Act. The Act forbids discharges for pro-
tected concerted activity and it is clear that Flack was engaged in concerted activity
at both docks, soliciting support for the Rebel Teamsters movement. Such solicita-
tion is not protected, however, if it is in violation of a company rule against solicita-
tion on company time. There is no evidence that any such rule was ever promulgated
by Cushman prior to October 11 16 Moreover, treating Barney Cushman's admoni-
tion to Flack on October I1 as the promulgation of such a rule, it is clear that such
admonition was given only after Flack's solicitation at Clairmont had ceased. I find,
therefore, that Flack's concerted activity at Clairmont was protected because (1)
Cushman had not yet promulgated any rule against union activity on company time,
and (2), in any event, Flack's activity did not occur on company time.
It is true that at Scherer, Flack did engage in solicitation during his working time,
notwithstanding that this had been forbidden by Cushman only 2 days before. The
question arises whether this fact justified his discharge. I have concluded that it did
not, for the following reasons:
1. The discharge letter, in referring to the Clairmont and Scherer incidents, stressed
the fact that they both involved (1) union activity by Flack during worktime, (2)
the creation of a disturbance at the respective docks, (3) the disruption of operations
at such docks, and (4) the incurring of extra expense by Cushman in completing
Flack's deliveries. Even assuming for the moment that Cushman was concerned
only about the first of these factors (the actual or supposed misuse of worktime for
union activity), I do not believe that Cushman regarded Flack's conduct in this re-
spect at Scherer as any more reprehensible than his apparently identical conduct at
Clairmont. Although the Scherer incident triggered the decision to discharge Flack,
Barney Cushman was sufficiently aroused by the Clairmont episode to proceed to
draft a "warning" letter-which, I take it, was intended to warn Flack that any
repetition of his action would result in discharge When his action was in fact re-
peated before the letter was completed, the warning notice and notice of discharge
were telescoped into a single letter. I find, therefore, that both incidents were co-
ordinate causes of Flack's discharge, and that neither incident alone would have
prompted such discharge. Accordingly, even if the extent of Flack's use of worktime
for union activity were deemed to have caused his discharge, I would find that the
discharge was unlawful because based at least in part on the supposed misuse
of worktime at Clairmont, which was not a lawful ground for discharge.17
2. I am satisfied, in any event, that, both at Scherer and Clairmont, Barney Cush-
man was less concerned about the extent of Flack's use of worktime in pursuing
his concerted activities than about the economic consequences to Cushman and its
interlining carriers of Flack's clashes with Local 710 and his inability to complete his
deliveries. As already noted, the discharge letter cites these consequences as factors
in his discharge. Moreover, since Local 710 controlled access to the docks of all
the common carriers in Chicago,18 the stoppages were necessarily of concern to
16 Cushman's "Driver's Manual," submitted in evidence, although purporting to pre-
scribe rules governing the conduct of drivers, does not contain any rule pertaining to
union activity during working hours
11 See Hill f Hill Truck Line. Inc , 120 NLRB 101, 102 and cases there cited. While
the actual misuse of worktime at Scherer was a lawful ground for discharge, a discharge
for two reasons, only one of which is lawful, violates the Act
is Janopoulos testified, and I find, that Local 710 represented the dockmen of all the
common carriers in Chicago, a total of 18,000 dockmen.
CUSHMAN MOTOR DELIVERY COMPANY 157
Cushman, not only because of their immediate effect , but also because they portended
a complete embargo by the Chicago dockmen against any freight handled by Flack, at
least as long as he carried on his Rebel Teamsters activities . In view of the threat
of such an embargo, which would have rendered the services of Flack valueless to
Cushman, it would be idle to speculate to what extent his discharge may have been
influenced by other factors , such as his use of worktime for concerted activities.
I find, therefore , that such use of worktime was not a significant factor in Flack's
discharge , but that the paramount consideration in his employer 's mind was Local
710's apparent determination , as manifested by the stoppages at Clairmont and
Scherer, to prevent Flack from effecting delivery at any dock on which he engaged
in Rebel Teamsters activity, with the attendant consequences of disruption of the op-
erations of Cushman and its interlining carriers . I find , therefore , that Flack's dis-
charge stemmed mainly from the opposition of Local 710 to his Rebel Teamsters
activity.
Local 710 contends that such opposition was not because of the anti -Teamsters
aspect of Flack's activity , but was due solely to the fact that such activity interferred
with the work of the dockmen and violated a company rule against loitering on
the dock by drivers. If this be true , and if Flack 's discharge may thus be attributed
to activities of Local 710 unrelated to the anti-Teamsters aspect of his concerted
activities , it may well be that his discharge would be lawful . However , I find no merit
in this contention , for the following factual reasons.
1. At Clairmont , as found above , Flack's activity had ceased sometime before the
work stoppage was ordered by Bonarigo . Accordingly , there was no longer any need
to take any such action in order to counteract Flack 's activity.
2. Moreover , as to both Clairmont and Scherer , it seems inherently incredible that
Palumbo and Smith would appeal to Local 710 to enforce discipline rather than rely,
in the case of Palumbo , on his authority as a supervisor or, in the case of Smith, on
the intervention of his supervisor , Wertz, who , according to Smith, had promised to
handle the situation.
3. In any event , in view of the similarity between the two incidents , the involve-
ment therein of the same three representatives of Local 710 under the leadership
of Janopoulos , who only a month before had warned Flack, in the context of an
abusive attack on the leadership of the Rebel Teamsters , that he would be "run off"
every "710 dock," and in view of the fact that Flack's Rebel Teamsters movement
was competing with Local 710 for the allegiance of the dockmen and drivers at Scherer
and Clairmont , I find that the sole purpose of the work stoppages at those premises
was not to restore discipline or prevent loitering , but to carry out Janopoulos ' threat
that Flack would be denied access to the docks in reprisal for his Rebel Teamsters
activity.
I find further that by Flack 's discharge as a result of such work stoppages the
Respondent Company violated Section 8(a) (3) and ( 1) of the Act . Had Local 710
expressly demanded that Cushman discharge Flack because of his activities on behalf
of the Rebel Teamsters and had he been discharged for that reason , there would be
no doubt of the illegality of such discharge . While it is true that Local 710 did not
in terms demand that Cushman discharge Flack , I find that it caused such discharge
as surely as if it had made such a demand ; for Local 710, by the work stoppages,
manifested its opposition to Flack's concerted activities in terms which left Cushman
no practical or lawful 19 alternative other than the discharge of Flack.
There remains the question whether Local 710's role in Flack 's discharge was
such as to warrant a finding that it caused his discharge , in violation of Section
8(b)(2) and ( 1)(A) of the Act. It has been found that Local 710 instituted
the work stoppages and that such stoppages induced Cushman to discharge Flack.
Moreover , it is apparent that Flack's discharge was a foreseeable result of the work
stoppages . Under those circumstances , I have no difficulty in finding that Local 710
caused Flack 's discharge , thereby violating Section 8(b)(2) and ( 1)(A) of the
Act.20
19 While Cushman may have had the alternative of retaining Flack on condition that he
forgo any Rebel Teamsters activity, adoption of this alternative would also involve a vio-
lation of the Act.
ao While there was no evidence at the hearing that Smith, as Local 710's steward, was
expressly authorized to order the work stoppage at Scherer, the question of Smith's
authority is rendered moot by the fact that his action was ratified by Janopoulos upon
his arrival at the scene . Janopoulos denied that he had any power to order a work
stoppage, except when management had failed to abide by an arbitration award How-
ever, as Local 710' s business agent, he was the liaison between the members and their
union , outranking in that respect the steward. He was therefore the highest ranking
union representative with whom the dockmen at Scherer had any direct contact in their
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that Cushman and Local 710 engaged in unfair labor prac-
tices in violation of Section 8(a)(3) and (1) and Section 8(b)(1) (A) and (2) of
the Act, respectively, it will be recommended that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It having been found that Local 710 unlawfully caused Flack to be discharged on
October 13, 1961, I shall recommend that Local 710 notify Cushman forthwith in
writing that it has no objection to Flack's employment, and at the same time request
Cushman to offer Flack immediate and full reinstatement to his former or substan-
tially equivalent position, and simultaneously serve a copy of such notice and re-
quest on Flack.
I shall also recommend that both Respondents, jointly and severally, make Flack
whole for any loss of earnings he may have suffered by reason of the discrimination
against him by payment to him of a sum of money equal to that which he normally
would have earned, absent any discrimination, from October 13, 1961, less his net
earnings (Crossett Lumber Company, 8 NLRB 440, 497-498) during said period 21
Such net backpay shall be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289.
As the Respondents' unfair labor practices found herein go to the heart of the
Act, it will be recommended that the order contain a broad injunction against any
form of restraint or coercion by the Respondents.
Upon the basis of the above findings of fact, and upon the entire record, I adopt
the following:
CONCLUSIONS OF LAW
1. The Respondent Company is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
2. Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
3. By discharging Flack because of the Respondent Union's opposition to his
concerted activities on behalf of the Rebel Teamsters Union, the Respondent Com-
pany violated Section 8 (a) (3) and (1) of the Act.
4. By causing the Respondent Company to discharge Flack for discriminatory
reasons, in violation of Section 8(a)(3) of the Act, the Respondent Union has vio-
lated Section 8(b) (1) (A) and (2) of the Act
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
day-to-day operations, and it necessarily follows that the members of Local 710 looked to
Janopoulos for instructions on all matters pertaining to the discharge of their obligations
as union members while on the job. See Genuine Parts Company, 119 NLRB 399.
With respect to the Clairmont incident, the work stoppage was ordered by Bonarigo,
who, as a union organizer , had at least apparent authority to take the necessary steps to
combat organizing activity by a rival union , such as Flack was engaged in Moreover, he
was acting under the direction of Janopoulos who, as I have just found , had the power
to bind Local 710 by his intervention at Scherer under similar circumstances.
Accordingly , I find that Local 710 was responsible for the conduct of Bonarigo and
Janopoulos in ordering the work stoppage at Clairmont , and for the similar conduct of
Smith and Janopoulos at Scherer Cf Lloyd Reisner, Business Agent of Local 135 et al.
(Midwest Transfer Company ), 112 NLRB 17, 18; The Grauman Company, 100 NLRB 753,
enfd 205 F. 2d 515 (C.A 10).
21 Liability for backpay shall run until Cushman offers Flack reinstatement to his
former or substantially equivalent job. However , Local 710's backpay liability shall end,
in any event , 5 days after it notifies Cushman that it does not object to Cushman 's employ-
ing Flack, as provided above.