International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

National Labor Relations Board - Board Decisions

May 24, 1954

108 N.L.R.B. 1008 (N.L.R.B. 1954)

1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment offers recommended in this report, less net earnings, if any, during that period.
Compare Crossett Lumber Company, 8 NLRB 440, 497-8, Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7. The pay losses of the employees should be computed on a quarterly
basis, in the manner established recently by the Board. F. W. Woolworth Company, 90 NLRB
289, N. L. R B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344.
The unfair labor practices attributable to the Respondent are, in my opinion, closely
related to the other unfair labor practices proscribed by the Act, and a danger of their
commission in the future is to be anticipated from the conduct of the Respondent in the
past. The preventive purposes of the statute would be thwarted unless the order in this
case is coextensive with the threat in order therefore to make more effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of the unfair labor practices
and thereby to minimize industrial strife which burdens and obstructs commerce, and
thus to effectuate the policies of the Act, it will be recommended that the Respondent cease
and desist from infringement in any other manner upon the rights guaranteed in Section 7
of the Act, as amended.
In order to secure expeditious compliance with the recommendations I have made in re-
gard to back pay and reinstatement, I shall recommend, finally, that the Respondent upon
request make available to the Board and its agents, for examination and copying, all pertinent
records
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon the entire record in the case, I
make the following conclusions of law:
1. The Respondent is an employer, within the meaning of Section 2 (2) of the Act, engaged
in commerce and business activities which affect commerce, within the meaning of Section
2 (6) and (7) of the Act, as amended
2. Teamster, Chauffeurs, Warehousemen and Helpers Union, Local No. 183, AFL is
a labor organization within the meaning of Section 2(5) of the Act, as amended.
3. By interference with, restraint, and coercion of its employees in their exercise of
rights guaranteed by Section 7 of the Act, the Respondent engaged in and has continued to
engage in unfair labor practices within the meaningof Section 8 (a) (1) of the Act, as amended
4. By its discrimination with respect to the employment tenure of Verla Bowen, Clare
Russell, Wilfred Plumondore, Alice Jean Brink, and Marcel Perez, and by its failure or
refusal to reinstate these employees after their separation from its employ, the Respondent
has engaged in and continues to engage in unfair labor practices within the meaning of Section
8 (a) (1) and (3) of the Act, as amended.
5. All of the busdrivers employed by the Respondent in the area of Fairbanks, Alaska,
exclusive of supervisors as defined in the Act, constitute a unit appropriate for the purposes
of a collective bargain within the meaning of Section 9 (b) of the Act, as amended.
6. The Respondent has not engaged in any unfair labor practice within the meaning of
Section 8 (a) (5) of the Act, as amended, by any failure or refusal to bargain collectively
with the Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 183, AFL,
on or about January 20, 1953, or at any time thereafter, as the exclusive representative
of its employees in a unit appropriate for the purposes of a collective bargain.
7. The unfair labor practices found are unfair labor practices affecting commerce within
the meaning of Section 2 (6) and (7) of the Act, as amended.
Recommendations omitted from publication
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
A.F.L., LOCAL NO. 710 and RAY SIMMONS Case No.
14-CB-198. May 24, 1954
DECISION AND ORDER
On December 24, 1953, Trial Examiner C. W. Whittemore
issued his Intermediate Report in the above-entitled proceed-
108 NLRB No. 134.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1009
ing, finding that the Respondent, hereinafter also referred to
as Local 710, had not engaged in and was not engaging in
certain unfair labor practices, and recommending that the
complaint be dismissed, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a
supporting brief. The Respondent filed a reply brief and on
March 9, 1954, filed a request for oral argument. This request
is hereby denied because it was untimely filed and because,
in our opinion, the record, the exceptions, and the briefs
adequately present the issues and the positions of the parties.
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 Intermediate Report, the exceptions and briefs,
and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Ex-
aminer insofar as they are consistent herewith.
The Trial Examiner' s statement of operative fact is generally
correct, except to the extent that the Intermediate Report
fails to mention the following contract clauses which the
General Counsel contends are here applicable:
Article V.
Seniority Seniority rights for employees shall prevail
Section 1. . . . A list of employees arranged in the order
of their seniority shall be posted in a con-
spicuous place at their place of employ-
ment. .. . Any controversy over the seniority
standing of any employee on this list shall be
referred to the Union for settlement. Such
determination shall be made without regard
to whether the employees involved are mem-
bers of a Union.
Section 3 ( a) All runs and new positions are subject to
seniority and shall be posted for bids. Post-
ing shall be at a conspicuous place so that
all eligible employees will receive notice
of the vacancy , run or position open for bid,
and such posting of bids shall be made not
more than once each calendar year , unless
mutually agreed upon. . . .
Section 4 ( a) In the event that the Employer absorbs the
busines. of another private, contract or
common carrier , or is a party to a merger
of lines, the seniority of the employees
absorbed or affected thereby shall be de-
termined by the Union or Unions having
jurisdiction over said employees . Such de-
339676 0 - 55 - 65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination shall be made without regard to
whether the employees are members of a
Union. 1
The Company, a common carrier transporting freight and
general merchandise by motor trucks in interstate commerce,
operates out of its St. Louis, Missouri , terminal, and has a
number of runs including one to and from Chicago, Illinois,
where it has another terminal. The record shows that pursuant
to a posting in September 1952, the Company, Local 710, and
Local 6002 jointly established a roster of 28 drivers for the
St. Louis-Chicago run. Complainants Durant and Popham, who
were members of Local 600 and had never been on this run,
applied but were not placed on the roster . They continued to
drive on another run which originated from St . Louis. Em-
ployees Poe , McCallister, and Edwards, who were members of
Local 710, also applied; Poe was placed on the roster as a
regular driver and the other 2 as extra drivers. Apparently,
the Poe group was placed on the roster instead of the 2 com-
plainants because of their higher terminal seniority.3
While under the September 1952 posting agreement the
seniority rights of all drivers on the roster were secured
until September 1953, Locals 710 and 600 agreed, because of
a curtailment of the Company' s operations , to have the Com-
pany reduce the number of runs to 22 by reopening bids, with
the understanding that the last 3 places would be awarded to
the Poe group . The Company agreed to this arrangement and
in May 1953, after a posting for bids, a new award list was
made for the 22 runs4 and the Poe group was given the last 3
places on the roster . Simmons, Durant, and Popham , the com-
plainants herein, bid on this run, but were not placed on the
new roster of 22 runs.
The General Counsel contends , in effect , that as the com-
plainants had higher company hire-date seniority ,' the Com-
pany's failure to place them on the list instead of the Poe
1 The Trial Examiner made no finding as to the effect of the contract between the Company
and the Respondent , because the General Counsel did not specify the provisions upon which he
relied. The record is clear, however , that the General Counsel referred to the seniority pro-
visions. The contract , which was placed in evidence , contains an index and one of the headings
is entitled "Seniority."
2 The headquarters for Locals 710 and 600 are in Chicago and St. Louis , respectively.
3 Terminal seniority is the length of time that a person has worked on a particular run,
either as an employee of the Company or as a driver under a lease arrangement. Poe,
McCallister, and Edwards acquired their terminal seniority by driving for several years on
the St. Louis - Chicago run as drivers under a lease arrangement with the Company and before
September 1952 when the Company eliminated the lease arrangements and began to use its
own equipment.
4The list contained 18 employees who were members of Local 600 and only 4 employees
who were members of Local 710.
s The hiring date for Simmons was October 11, 1951: Durant, July 19, 1951; Popham,
August 19, 1950. Poe was hired October 1, 1951; McCallister , October 12, 51; Edwards,
October 28 , 1951. It thus appears that Poe actually had more hire- date seniority than Simmons;
and that only Durant and Popham had higher seniority than the Poe group.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1011
group, was an unlawful discriminatory act caused by Local
710, the Respondent herein. At the hearing , Local 710 justified
the retention of the Poe group on the list because of their
terminal seniority and the complainants ' lack of such seniority.
While there may have been some misunderstanding between
the Company and Local 710 as to whether terminal or hire-
date seniority would be controlling , the use of terminal seniority
in this instance with respect to the Poe group seems to be
consistent with the action taken in September 1952 when they
were originally placed on the roster . Moreover , there is no
evidence in this record that union membership was a factor.
in the use of terminal seniority.
After the May 1953 roster was established , 3 drivers, who
were in the middle of the list , transferred to another route
thereby creating 3 vacancies. In June 1953, without the knowl-
edge of Local 710 and at the request of one of the complainants
(Durant) who was a steward for Local 600, the Company posted
these vacancies . The complainants bid and were awarded the
vacant positions which placed them higher on the list than the
Poe group . For about 2 or 3 weeks , the complainants operated
runs ahead of the latter group until early July 1953, when the
Company complied with Local 710's protest that replacements
should be placed at the bottom of the list.
The General Counsel contends that this action by the Com-
pany also constituted unlawful discrimination and was caused
by Local 710. The Respondent justifies its protest on the ground,
and the undisputed evidence shows, that during the usual 1-year
period for which runs are awarded, it is common practice in
the industry that interim vacancies be filled by advancing
employees already on the list and by placing replacements,
regardless of seniority, at the bottom.
We have carefully examined the entire record in this case
and we are not convinced that the General Counsel has sustained
his burden of showing by a preponderance of evidence that the
Respondent engaged in the alleged unfair labor practices.' We
therefore find, in accord with the Trial Examiner, that the
Respondent did not violate Section 8 (b) (1) (A) and ( 2) of the
Act.
The General Counsel also excepted to the Trial Examiner's
failure to find that one of the contract provisions was unlawful
because it reposed in Local 710 the authority to settle con-
troversies - dealing with seniority . As this allegation was not
made in the complaint and was not litigated at the hearing, we
do not pass on this exception.
In accordance with the foregoing , we shall dismiss the com-
plaint in its entirety.
[The Board dismissed the complaint]
6Cf. Pacific Intermountain Express Company , 107 NLRB 837, where a different result was
reached on facts establishing that seniority was determined by date of union membership
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing thereon having
been issued and served by the General Counsel of the National Labor Relations Board, and
an answer having been filed by the above -named Respondent Union, a hearing involving allega-
tions of unfair labor practices in violation of Section 8 (b) (1) (A ) and (2) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in St. Louis,
Missouri , on November 18, 1953, before the undersigned Trial Examiner.
In substance the complaint alleges and the answer denies that the Respondent: (1) Since
about May 1, 1953, has caused East Texas Motor Freight Lines, Inc., herein called the
Company, to discriminate against 3 employees in violation of Section 8 (a) (3) of the Act by
"disregarding . . . contract provisions " and "established policies" concerning the seniority
of 3 individuals, the effect of such action being to reduce their pay, and (2) by such action
restrained and coerced employees in the exercise of rights guaranteed in Section (7) of the
Act.
At the hearing all parties were represented, were afforded full opportunity to be heard,
to examine and cross - examine witnesses , to introduce evidence pertinent to the issues, to
argue orally upon the record, and to file briefs and proposed findings of fact and conclusions
of law A brief has been received from the Respondent Union.
Disposition of the motion to dismiss the complaint, voiced at the close of the hearing and
upon which ruling was then reserved, is made by the following findings, conclusions, and
recommendations.
Upon the entire record in the case, and from his observation of the witnesses, the Trial
Examiner makes the following-
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
East Texas Motor Freight Lines, Inc , is a Texas corporation having its principal office
and place of business in Dallas, Texas, with trucking terminals at St Louis, Missouri;
Chicago, Illinois, Texas, Tennessee, Arkansas; and Louisiana. It is a common carrier trans-
porting freight and general merchandise by motor trucks in interstate commerce over the
public highways During the 12-month period before the hearing the Company transported
such freight and received revenue of more than $1,000,000, more than 50 percent of which
was derived from transporting freight between Texas and other States of the United States,
in interstate commerce.
The Company is engaged in commerce within the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, A. F. L., Local No 710, is a labor organization admitting to membership employees
of the Company.
III. TILE ALLEGED UNFAIR LABOR PRACTICES
The basic facts of this case aremsmall dispute in substance, the issues raised by General
Counsel stem from the following setting
For a number of years the Company has operated, out of its St Louis terminal, runs to
and from Chicago, where it has another terminal It is to this run that assignment of certain
drivers is in question.
The issues raised by the complaint occurred during the life of a contract known as the
"Central States Area Over-the-Road Motor Freight Agreement " A copy of such contract
was placed in evidence by General Counsel. The parties of the specific agreement, according
to the document, are East Texas Motor Freight Lines, as the employer, and the Central
States Drivers Council and Local Union No. 710 as the Union involved As noted heretofore,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1013
General Counsel alleges, among other things, that Local 710 " caused the Company to disre-
gard the contract provisions ." No other contract than the above-described was placed in
evidence , and it must therefore be assumed that General Counsel meant no other . Although
directly challenged by counsel for Local 710 to point to any provision of the said contract
which His client had " caused the Company to disregard ," General Counsel failed to make any
specific claim, at the hearing or in oral argument , and he filed no brief The Trial Examiner
does not consider it incumbent upon him to comb through this extensive document in search
of some unidentified provision which some item of evidence may bear upon , and thereupon
attempt to resolve a question which General Counsel failed to spell out during the hearing.
No finding , therefore , is made as to whether or not any provision of this contract was disre-
garded by the Company , or as to whether or not the Union caused it to disregard any provision
of the contract . It is enough to concludethat the evidence is insufficient to sustain this allega-
tion of the complaint
There remains the issue as to whether or not the Union caused the Company to disregard
its "established policies " As heretofore noted, the St Louis-Chicago run is the only opera-
tion with which the complaint is concerned . It appears that this operation , known as the "north
division ," has a terminal in St. Louis and another in Chicago , and that the division ' s manager
is Clyde O'Bryan . The runs between the two terminals originate in St Louis For an undeter-
mined period before September 1952, most of the runs on this operation were made by drivers
of their own or leased equipment , and for such drivers, according to O'Bryan , no bids were
posted by the Company (" Bidding" is a practice whereby the company posts notices at
terminals that certain " runs" areopenand employees desiring them "bid" or apply for them )
About September the Company prepared to run its own equipment on the St Louis - Chicago
run, and worked out an agreement with officials of Local 710 , of Chicago , and Local 632, of
St Louis ( the latter of the same parent organization), to open bids Of the 26 runs then operat-
ing between these 2 points, 22 were being made by members of Local 710 and 4 by members
of the St. Louis local. At the meeting of the Unions and the Company it was agreed to set up
a weekly schedule of 28 runs. The agreement was made specific , 28 individuals were listed
for these runs, with 3 additional drivers "as extras to be used as and when needed." Two
of the three complainants in this case ( W. O. Durant and Harvey Popham) bid on this run
at that time , but neither was assigned . They filed no grievance on the matter , and General
Counsel does not--indeed could not because of the 6-month provision of the Act -- make a
point of it
Although the runs thus scheduled in September 1952 were due to remain for 1 year, by
agreement with the 2 locals the Company reposted bids in May 1953 for only 22 runs Before
this reposing , when it became apparent to officials of the 2 Locals that a reduction in the
number of runs was to be made , they met in Chicago to consider the question of reopening
bids. The testimony of Thomas Keegan, business representative of Local 710, is undisputed--
indeed it is corroborated by an unchallenged document signed by Charles W. Grogan, head
of the St Louis Local (the number of which since September 1952 had been changed from
632 to G00 ), and it is found that on April 14, 1953, the 2 Locals agreed that, upon reopening
the "board," Poe, McAllister , and Edwards (and one other individual not here involved)
should remain on the run in the last positions, if they wished to, despite their lack of "com-
pany" seniority . This arrangement appears not to have been arbitrary nor discriminatory
in intent or purpose . All three had been regular drivers on this run for several years, as
lease operators and then as company employees , long before the run had been opened for
bids in September 1952 That they happened to be members of Local 710 at the time appears
immaterial , and in any event Local 600 agreed to this arrangement.
The testimony of O'Bryan establishes , and it is found , that the Company was informed
of this agreement between the 2 Locals as to the placement of the 3 individuals at the bottom
of the list. It apparently complied with it without objection and full compliance with its con-
tract with Local 710 It adopted this item of "policy" on this run, and the Trial Examiner
is unable to discern wherein, by adopting it, it "disregarded " any previous practices The
3 individuals were at (or near, in thecase of Poe) the bottom of the list as they had been when
the run was first opened to bid the preceding September.
When the bids were closed in trod-May , three applicants for the run--Durant , Popham, and
Simmons were not included.
A month or so later , and not all on the same date , 3 of the drivers on this St . Louis-
Chicago run " bid off"--applied for other runs, although again it had been agreed between the
Locals and the Company that the bids would be closed on this run for a year . The Company
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed to notify Local 710 of the openings and, according to O'Bryan , merely followed the
"request" of Durant , steward for Local 600, to place him , Popham, and Simmons on the
board in the positions left vacant by the 3 drivers who "bid off" and above McAllister, Poe,
and Edwards . This arrangement eventually came to the attention of Keegan who, by letter,
informed the Company that , since the bid had been closed in May, any replacements should
come in at the bottom of the list. Early in July the Company complied with Keegan ' s letter
and Durant , Popha4n, and Simmons were placed at the bottom of the list , under McAllister,
Poe, and Edwards.
At this point Simmons , on behalf of himself and the 2 others , filed a charge with the Board,
claiming discrimination since July 6, which was when they were put at the bottom of the
list, removed from positions which Durant had prevailed upon the Company to put them in
in June. The complaint , however, alleges that the 3 have been discriminated against since
about May 1, and in oral argument General Counsel makes it plain that not only does he.
consider it to have been an act of discrimination to place the 3 complainants at the bottom
of the list in July, but also to have failed to accord them runs when the bids were reopened
in mid-May . He orally based his claim of discrimination upon the contention that the 3
complainants had more "terminal seniority" than Poe, McAllister , and Edwards. It appears
that General Counsel meant " company" seniority , or date of hiring, and not "terminal"
seniority , which is length of time on runs between the same terminals . But whatever General
Counsel actually meant, and whatever the actual seniority standings of the individuals
involved, either terminal or company , the evidence is conclusive that the posting of the
bids in May was in full conformity with the agreement between the 2 Locals and the Company,
that it has long been the practice on rotating runs, such as the St . Louis -Chicago run, to
move drivers up as vacancies occur while new bidders come in at the bottom , and that
putting the 3 complainants at the bottom of the list in July was neither in "disregard" of
practice nor discrimination to encourage membership in Local 710.
The Trial• Examiner concludes and finds that the preponderance of evidence fails to sustain
the allegations of the complaint as to the alleged unfair labor practices.
It will therefore be recommended that the complaint be dismissed in its entirety.
Upon the foregoing findings of fact and upon the entire record in the case, the Trial
Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of the Company occur in commerce within the meaning of Section 2 (6)
of the Act.
2. The Respondent Union is a labor organization within the meaning of Section 2 (5) of the
Act.
3. The Respondent Union has not engaged in unfair labor practices, as alleged in the
complaint, within the meaning of Section 8 (b) (1) (A) and (2) of the Act.
[Recommendations omitted from publication.
THE COLORADO MILLING AND ELEVATOR COMPANY'
and AMERICAN FEDERATION OF GRAIN MILLERS, AFL,
Petitioner . Cases Nos . 19-RC-1434, 19-RC-1435, 19-RC-
1438, 19-RC-1439, 36-RC- 1012, and 36-RC-1013. May 24,
1954
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed and consolidated under Section
9 (c) of the National Labor Relations Act, a hearing was held
before Orville W. Turnbaugh , hearing officer . The hearing
1The name appears as amended at the hearing.
108 NLRB No. 133.