Local 347, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Nov 28, 1961

134 N.L.R.B. 776 (N.L.R.B. 1961)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions between the Union and the Employers were to be through the
latter's agent, CAE-but on an individual rather than a group basis.
The record herein is completely devoid of any evidence of dealings
between the parties since the dissolution of the multiemployer unit,
and there is no basis for assuming that the Union is willing to accept
current recognition in the several single employer units. Indeed, the
latter assumption is belied by the Union's petition in Case No.
20-RC-4638, and its position in the instant decertification proceedings,
namely, that any but the multiemployer unit is inappropriate. In
these circumstances, where the record discloses that since the dissolu-
tion of the previous multiemployer unit the parties have disagreed
as to the unit to be recognized, we are unable to say that the single
employer units alleged in the decertification petitions are the currently
recognized units.
Accordingly, as there is no longer an existing bargaining unit in
which the Union is currently recognized, we shall dismiss all of the
decertification petitions filed herein.
[The Board dismissed the petitions filed in Cases Nos. 20-RD-265,
20-RD-267, 20-RD-268, 20-RD-269, 20-RD-270, 20-RD-271,
20-RD-272, 20-RD-273, and 20-RC-4638.]
Local 347, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America [D. L. Harrison Com-
pany] and Eugene Warner, Kenneth Burgess , Charles Hickey,
Albert C. Kramer, Raymond W. Craft, Buford C. Kinder,
Dwight Taylor, James C. Turner, Hobart Holloway, Alfred
Leroy Walker, Theodore Watson, John Petty, and Robert
Scheper. Cases Nos. 14-CB-883-1 through 14-CB-883-13. No-
vember 28, 1961
DECISION AND ORDER
On July 3, 1961, Trial Examiner John H. Eadie issued his Inter-
mediate Report herein, finding that the Respondent had engaged in
unfair labor practices in violation of Section 8(b) (1) (A) and (2)
of the Act and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof.
The Board 1 has reviewed the Trial Examiner's rulings and finds
no prejudicial error. The rulings are hereby affirmed. The Board
1 Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connection
with this case to a three-member panel [ Members Rodgers , Leedom, and Brown]
134 NLRB No. 75.
LOCAL 347, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 777
has considered the Intermediate Report, the exceptions and brief, and
the entire record in this case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommendations of the Trial Examiner
with the modification that provision 2(c) read: "Notify the Regional
Director for the Fourteenth Region, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith." 2
2In the notice attached to the Intermediate Report as Appendix, the words "A Decision
and Order" aie hereby substituted for the words "The Recommendations of a Trial
Examiner " In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and
Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing
an Order "
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding involves allegations that the Respondent, Local 347, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
herein called either the Respondent or Local 347, violated Section 8(b) (1) (A) and
(2) of the National Labor Relations Act, as amended. A hearing was held at
Marion, Illinois, on February 14, 15, and 16, 1961. The Respondent's motions to
dismiss the complaint are disposed of as hereinafter indicated. After the conclusion
of the hearing the General Counsel filed a brief with the Trial Examiner; and the
parties filed a stipulation to correct the transcript of record. The stipulation is re-
ceived in evidence and marked as Trial Examiner's Exhibit No. 1; and it is hereby
ordered that the record be corrected in accordance with said stipulation.
Upon the entire record, and from my observation of the witnesses I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The D. L. Harrison Company is a Missouri corporation with its principal office in
Cape Girardeau, Missouri. Its business is that of a general contractor in the con-
struction industry in various States. The corporate stock of the Company is solely
owned by R. B. Potashnick and D. L. Harrison, each party owning half of said
stock. The Company is a member of the Associated General Contractors of Illinois.
In 1960 the Company began constructing a 5-mile segment of Interstate Highway
No. 57 in Johnson and Williamson Counties, Illinois, referred to herein as the Gore-
ville project. This job was undertaken pursuant to a jointly bid and executed con-
tract between the Division of Highways of the State of Illinois, the Company, and
R. B. Potashnick, an individual enterprise. The total amount of the contract was
approximately $2,500,000, of which 90 percent will be paid for through funds fur-
nished by the Government of the United States. The Company's share of the con-
tract is approximately $1,250,000. Potashnick's obligation was to do the grading,
drainage, and bridgework. The Company's phase of the work was the laying of the
rock subbase, paving, and construction of shoulders. Potashnick is to complete the
job with grade and landscaping work.
The 5-mile road runs in an essentially north-south direction from a point approxi-
mately 9 miles south of Marion, Illinois, to a point several miles west of Goreville,
Illinois. It lies close to and, to a certain extent, parallel with Illinois State Highway
No. 37. Three and one-half miles of the road lies south of the Johnson and William-
son county line.
The Company completed another highway project in the State of Illinois in 1960.
This project was located in Alexander County and was undertaken pursuant to a
$900,000 contract with the Division of Highways of the State of Illinois.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Local 347, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization which admits to membership em-
ployees of the Company.
III. THE UNFAIR LABOR PRACTICES
The Company commenced work on the project in June 1960. An initial stage
of the work was the hauling of concrete paving aggregates from the Southern Illinois
Stone Company at Buncombe, Illinois, to the batch plant on the project site. Com-
mencing on June 22, 1960, the Company used seven White tractor-trailers, referred
to as the "White Fleet," for this purpose. They had been operating in Missouri with
drivers Buford Kinder, Eugene Kinder, John Petty, Robert Scheper, Dwight Taylor,
Raymond Craft, and Ted Watson, all of whom were members of Teamsters Local
574 of Cape Girardeau, Missouri, and long-time employees of the Company.
On June 21, 1960, William Humphrey, the Respondent's business agent for con-
struction, called James Young, the Company's supervisor of the White Fleet. Hum-
phrey stated that he had heard that the White Fleet was coming over from Missouri
to haul stone, and that the drivers could not come over with the trucks. Young re-
plied that the trucks would be over the following day and that he himself (Humphrey)
could tell the drivers that they were unable to work. Humphrey closed the con-
versation by saying that he was telling the Company that the drivers could not come
with the trucks, and that he was not going to tell it to the drivers. On June 22, 1960,
Young met with Humphrey and Sam Trefts, Respondent's secretary-treasurer, at the
Company's field office in Goreville, Illinois. Young was asked if he had enough
drivers for the White Fleet. He said that he had but that he might need more drivers
in the future if there was a second shift. In response to a question concerning the
Company's requirements for batch truck drivers, Young referred the Respondent's
representatives to Superintendent William Regenhardt who was in charge of that
particular operation.
On or about June 25 Taylor, Craft, Watson, Scheper, Eugene Kinder, Buford
Kinder, Petty, and Vernon McCain, a mechanic for the White Fleet, went to the
Respondent's office. They asked to be transferred into Local 347, and were told that
the "business agent" would go to the job to see them "in a few days." Thereafter no
business agent appeared at the job for this purpose.
On July 12, 1960, Regenhardt met with Humphrey and Lester Harriss, the Re-
spondent's president and business representative. Regenhardt discussed his hiring
practices and the number of men and trucks he expected to use on the project. Be-
sides the White Fleet drivers, he estimated he would be using 10 or 12 of the Com-
pany's own drivers, calling on the Respondent to furnish the balance of his require-
ments. Humphrey asked that Regenhardt hire as many men as possible from the
locality because of the high rate of unemployment prevailing at the time.
On July 19, 1960, the Company began hauling crushed stone for the subbase to
the project from the Southern Illinois Stone Company. It utilized its own 11 yellow
batch trucks as as well some individually owned vehicles. Eight of the drivers of the
yellow trucks were its own employees who had worked on other jobs and who were
members of Local 574. These employees were Hobart Halloway, James Turner,
William Stanley, Alfred Walker, Ralph Gulley, Eugene Warner, Charles Hickey, and
Albert Kramer. The remaining drivers had been sent out to the Company by and
were members of the Respondent.
Regenhardt and Harrison met with Trefts and Harriss on July 22, 1960. The
meeting was requested by the Company because it had received reports of possible
trouble on the job. Trefts stated that he had been "under a lot of pressure from
business people around, the Chamber of Commerce, his union members and so forth,
as to why these Missouri drivers were hauling on this job in Illinois when he had
members who were not working." Regenhardt explained that the Company had a
project in Missouri going on at the same time as the one in Illinois, that some of the
Company's trucks would be used at both projects, and that it was necessary for the
Company to have some drivers who could transfer from one project to the other.
They discussed the number of drivers who would be needed for the paving operation.
Trefts requested that he be called when such drivers were required. Regenhardt
agreed to do this. The parties also agreed to the appointment of a union steward for
the job. The Respondent named Alvin Yates, one of its members, to this position
on July 25.
On September 22, 1960, a group of 30 or 40 men congregated on "Red Barn
Road," just west of Highway 37 and approximately three-quarters of a mile from the
Company's batch plant. The evidence indicates that all of the men in the group were
LOCAL 347, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 779
members of Local 347.1 They blocked the path of the Company's trucks, asked the
drivers for their union cards, and, upon learning that they were not members of
Respondent, told the drivers to take their trucks back to Missouri and not to come
back. It appears that the first truck, driven by Eugene Warner, was blocked by a
1957 Plymouth station wagon, owned and driven by Paul Davis. Davis was a
member of Local 347.2
Charles Abscher, business agent and recording secretary of Respondent, was present
and talked to the group of men on Red Barn Road for about 10 or 15 minutes about
10 a.m. on September 22. He was accompanied by Deputy Sheriff Rex Rowland.
As Abscher was leaving, Yates asked him if he had found out what was causing the
trouble. Abscher replied that the men had told him that "the three Illinois boys"
could work but that the "Missouri people" could not. Yates then said, "We might
as well shut them all down." 3
Albert Kramer's truck was stopped on September 22. He talked to two men in
the group, Robert McMahon and George Walker. When they asked him if he had
a union card, Kramer explained that he was a member of Local 574, but that he had
transferred from Teamsters Local 50 of Mount Vernon, Illinois. McMahon then
told him, "We are not after you Illinois boys . we are after these Missouri
boys. . Go ahead." Walker made substantially the same statement to Kramer.
Regenhardt testified that about 9 a.m. on September 22 he found out that a group
,of men were stopping the Company's trucks on Red Barn Road; and that he went to
the group and talked to several of the men, including Everett Walker and his brother,
'Witnesses for the General Counsel identified a number of the persons involved. Carl
Dunning, a witness called by the Respondent, testified that he was a member of Local 347;
that he was with the group of men on September 22; and that to his knowledge all of
the men in the group were members of Local 347.
2 Warner testified that he saw the man who got out of the Plymouth station wagon
When asked if the same man was in the hearing room, Warner identified Humphrey. He
then testified that Humphrey told him to "take the truck back to Missouri and leave it
there and don't come back " Charles Hickey testified that he drove the next truck in back
of Warner's, and that he saw the man who drove the Plymouth station wagon which
blocked Warner's truck. When asked if that man was present in the hearing room,
Hickey identified Humphrey. During cross-examination, Hickey admitted that he did not
"get a good look at lair Humphrey, the day he was in the car " Humphrey denied that
he was on the Company's jobsite on or after September 22 He also denied that he owned
or operated a vehicle such as that described by the witness or that lie blocked one of the
Company's trucks during the time in question Davis testified that he owned a 1957
Plymouth station wagon and that he blocked one of the Company's trucks on September 22
Carl Dunning testified that Humphrey was not present, and that the station wagon in
question was owned by Davis Gary McClusky testified substantially the same as Dunning
as to this incident The Trial Examiner noted a marked physical resemblance between
Humphrey and Davis, and believes that this is a case of mistaken identity on the part
of Warner and Hickey. In any event I credit the above testimony of Humphrey, Davis,
McClusky, and Dunning in this connection.
3 Alfred Walker, a member of Local 574, testified that "two men came up and one of
them had a badge on, a sheriff or deputy sheriff, and started talking to Alvin Yates, the
steward" ; and that he did not know the man who talked to Yates. When asked by
counsel if he saw the man in the hearing room, Walker Identified Humphrey. Walker
then testified, "[Humphrey] told Mr Yates that they said the three Illinois boys can
work, and Mr. Yates replied to him that we might as well shut them all down " Alfred
Kramer, also a member of Local 574, testified that "the sheriff and a big fellow" talked
to Yates. When asked by counsel to "point out" the man, Kramer Identified Humphrey.
Yates was not called as a witness . Abscher testified, in substance, that he went to
Red Barn Road with Rowland on a matter involving Contractor Stilley, and not the
Company ; that he noticed the group of men and walked up to talk to them ; that
Humphrey was not present; that neither he nor any other business agent of Local 347
-had told the men to stop the Company's trucks ; that he spoke to Yates "as I came
back", and that he did not "recall" Yates making the remark attributed to him by
Walker. Rowland testified that he accompanied Abscher to Red Barn Road on Sep-
tember'22 on a request from Stilley ; that he knew Humphrey at the tine ; that Humphrey
was not present; that Abscher told him that he had a report of trucks being stopped ;
that "Stilley's crew . . . were pouring concrete on Red Barn Road", that trucks were not
being stopped while he was present; and that he and Abscher talked to a group of men
who were farther up the road As in the incident of the station wagon, found above, I am
convinced and find that Walker and Kramer were mistaken in their identification of
Humphrey.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George. Concerning his conversation with George Walker and with the group as a
whole, Regenhardt testified without contradiction as follows:
He told me that many of the men in this particular group , including himself,
were employees, had been employees of the Price Construction Company con-
structing a pipeline from Murphysboro, Illinois, toward the Mississippi River
at Grand Tower, Illinois, and that when the stage of the project reached the
river, the Missouri business agent of the Teamsters came over to these men and
told them that they were out of Local 347 and that they would not be allowed
to work in Local 574.
* * * * *
-that these men weren't allowed to work in Missouri so they were over here
to see to it that the Missouri men did not work in Illinois.
* * * * * * *
I told them that the Harrison Company had a contract through the Associated
General Contractors with the Teamsters and their local for staffing this project
and if they had any complaint or grievances that they should follow the pro-
cedure set forth in this contract and contact their respective business agents who
in turn would contact us and we would sit down and talk the thing over and see
if we couldn't reach some decision or conclusion.
Regenhardt talked to the men for about an hour. He then had a conversation with
Yates. In this connection Regenhardt testified without contradiction, "I told Alvin
Yates what was happening and he told me that he was powerless to do anything about
it, that he couldn't get the men [the group on Red Barn Road] to leave, and that he
thought as far as himself personally was concerned, as long as there was trouble on
the project . . . that he would rather go home, . which he did." Regenhardt
then instructed Matthew Durham, the Company's "batch plant foreman," to tell the
drivers to park their trucks and go home.4 At sometime that same day Regenhardt
called Humphrey and told him of the trouble on the job. Humphrey said that he
would "look into the situation and advise [him] accordingly."
Harrison also had a telephonic conversation with Humphrey on September 22.
Concerning this conversation, Harrison testified without contradiction as follows:
Our trucks had been stopped from hauling to the project and I asked him why
and what the trouble was.
* * * * * *
He said that he wasn 't too familiar with the situation at that time , that he
would check into it and see if he couldn't work the situation out, but that he
understood that a group of Illinois drivers had been run off from a project
which crossed the river into Missouri, that is, the Cape Girardeau local had
told the West Frankfort local boys they couldn't come into Missouri and drive
and that, of course, made the West Frankfort people-mad and they said if we
can't drive over there, they can't drive over here.
* * * * * * *
He said that he would check with some of his people, he hadn't had time
to get into the thing , and he would check with some of his people and let me
know later on. Also he stated that Mr. Trefts was out of town and would
be in that night and he would talk with him, too, and see what, if anything he
knew about it or what could be done.
Later that same day Harrison had another conversation with Humphrey. In this
connection Harrison also testified without contradiction, as follows:
I asked him what he had been able to find out , and he said that he had
talked to some of his people that he considered dependable and that the inci-
dent concerning the drivers not driving in the Cape Girardeau territory had
occurred and that his people were very disturbed about it but that he hoped
they would come and drive the next day. I said, "Well, shall we order a new
crew of men, are they going to drive or not?" And he said, "I hope so."
And I said, "I will call all the drivers out and we will work the next day," and
he said, "Well, I guess that is all that you can do."
On Friday, September 23, a larger group of men assembled on Red Barn Road.
Regenhardt again talked to them . In this connection he testified without contra-
diction to the following:
Regenhardt testified to the effect that he did not recall whether or not he had ordered
the drivers who were members of Local 347 to be sent home Durham's testimony indi-
cates that all drivers were ordered to cease work.
LOCAL 347, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 781
I told them of the seriousness of the situation in attempting to do what they
were trying to do. I did everything, including pleading with them to go home
and let the job continue, and I told them that after the paving operation began,
why, the company would be hiring several men, Teamsters, and a lot of them
would come, the majority would be coming from Local 347 through their
respective business agent. I specifically mentioned the obligation on my part
as superintendent of hiring men in a nondiscriminatory fashion or manner,
and I asked them to contact their business agents and let the business agents
do the talking for them.
Either during this talk or at a later date, Regenhardt mentioned to the group of
men that Humphrey was going to come to the job to "straighten things out." Some
unidentified men in the group replied, "We'll . peel his [Humphrey's] head";
that they would do the same to anyone else who disagreed with them; and "after all
Humphrey just works for us." Regenhardt again advised Yates of the trouble.
Yates replied that he was "powerless in controlling these men," and that he would
"rather go home" because of the trouble on the project. Regenhardt then ordered
the drivers to park their trucks and go home, advising them that the Company
would have a meeting with Local 347 and would "come to some conclusion
before Monday."
Harrison called Trefts early in the morning of September 23. As to this con-
versation, Harrison testified without contradiction that he told Trefts about the
"work stoppage" on the project, asking him "how are we going to get back to work";
and that Trefts replied, "I don't know anything about what you are talking
about, . you all get [in trouble] and scream to us to get it out."
Regenhardt had a telephonic conversation with either Humphrey or Trefts during
the morning of September 23 .5 As to this conversation, Regenhardt testified without
contradiction: . And I told him of what was happening and Mr. Humphrey
told me that several of the people there were definitely not members of Local 347,
and also that he couldn't put a shotgun to anybody's head and force them to go to
work. . . . He told me that he would get around to see these people that evening
at home, his own people, and he thought that everything could be worked out
where the job would run the following Monday morning."
On September 23 Vernon McCain, a mechanic for the White Fleet and a member
of Local 574, and Red Thompson, another employee, were told by Regenhardt to
cease work and to go home by "the back route." As they passed through Goreville,
several cars containing approximately 15 men including George Walker, followed
them out of the town. The men ordered McCain and Thompson to stop their car.
Concerning the ensuing conversation with Walker, McCain testified without contra-
diction, "Walker asked me if we worked for Potashnick. . We told him we
did, . and he explained to Red Thompson and myself about they hadn't been
allowed to work on a pipeline in Missouri and that we weren't going to be allowed
to work there, and he said that this was the second day, the third day there would
be some heads skinned."
On September 23 Regenhardt called a Mr. Faircloth, a representative of the
Associated General Contractors of Illinois. Regenhardt explained the situation
to him. Faircloth said that he would contact Trefts and call him back. Later that
same day Faircloth advised Regenhardt that he had made arrangements with Trefts
for a meeting on Monday afternoon, September 26. During that weekend Regen-
hardt told either Trefts or Humphrey that the Company would not work the
White Fleet the following Monday morning, "pending the outcome of our meeting
that afternoon.", Regenhardt also stated that the Company would be starting the
paving operation that following week and would be calling upon Local 347 "for a
good number of employees."
Only two truckdrivers worked on Monday, September 26, namely, Kenneth Bur-
gess and William Jackson. Both were members of Local 347. There was no group
formation on Red Barn Roard that day.
About-l p.m. on September 26 a meeting was held between the parties at Carbon-
dale, Illinois. Faircloth, Regenhardt, Harrison, Young, Trefts, and Humphrey
were present. Concerning this meeting, Regenhardt testified without contradiction
to the following:
We talked over the difficulties that we had on this project. Mr. Faircloth
cautioned both parties about the seriousness of the situation and the seriousness
of discriminating in hiring employees. And I remember Mr. Trefts telling of
5 Regenhardt testified that to the best of his recollection the conversation was with
Humphrey.
782. . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the pressures that were being put upon him by the people in the organization
that weren't working any place. He was having a great deal of trouble con-
trolling them. Mr. Faircloth suggested that we send telegrams to all the
men of Local 574 instructing them to be back to work, to report back to work.
Mr. Trefts asked for copies of these telegrams and he agreed that we should send
them, and someone in the group suggested that we stagger the return of these
men, the 574 men, in order to enable me to place more of the 347 men on
the job... .
Harrison testified without contradiction as follows:
I believe Mr. Trefts suggested that we send these telegrams to these eight
people to whom we were going to send telegrams in the staggered fashion, that
is, two a day for four different days.
*
The gist of what he said was if these drivers came back in a staggered fashion
it would provide for easier feelings on the job, we wouldn't have them all show-
ing up at the same time... .
The telegrams signed by the Company were sent to the employees in accordance
with the agreement reached at the meeting. Kramer, Hickey, William Stanley, and
James C. Turner were notified to report back for work on September 29; Ralph
Gulley, Alfred Walker, and Hobart Holloway on September 30; and Eugene Warner
on October 3.
On September 27 the Company employed eight batch truck drivers, all of whom
were members of the Respondent. The following day the White Fleet was back in
operation, along with five additional batch trucks. All batch truck drivers were
members of Respondent. On September 29 there were 21 batch trucks involved
in the paving operation. All drivers of these trucks were members of the Respondent
with the exception of Warner,6 Kramer, and Hickey.
On September 30 the drivers who were members of the Respondent walked off the-
job, claiming that they were sick. Burgess, a member of Local 347, drove his truck
to the gas pump in preparation for work. George Walker told him, "You are sick,
we are all sick, take that truck back to the parking lot and park it." Burgess then
parked his truck and told Foreman Durham, "I am sick so the boys tell me." While
Burgess was standing with Kramer and employees Ray Rolan and Bill Jackson,
employee Anderson drove up in his car, containing two or three other employees,
and said, "We are going down on Red Barn Road. The ones that don't get in this
car with us, get your card pulled." Rolan and Jackson got in the car. Burgess,
however, remained with Kramer, Warner, and Hickey, as he had been riding to-
and from work with them.
Regenhardt and Durham asked Yates if there was anything he could do "about this
trouble." Yates told them that he did not have "any authority or power," and sug-
gested to Regenhardt that he see Humphrey or Trefts. Yates then joined the walkout.
Regenhardt went to Red Barn Road where about 30 or 40 men were congregated.
Regenhardt talked to the Walker brothers, Lockett and Doyle Dover, all of whom
were employees of the Company and members of Local 347. He told that "the
Company was suffering damages by their actions and their refusal to work"; that he
was going to retain an attorney to bring suit against each of them; and that the Com-
pany would start the job up again if a majority of them reported back for work at
the batch plant site .7 None of the employees returned to work. Regenhardt then
sent the drivers of the White Fleet home for the weekend. Alfred Walker, Holloway,
and Gulley, all batch truck drivers who had been called back to work that same day,
were told by Durham to go home and not to report back for work until further notice.
Regenhardt told Hickey, Kramer, and Warner to remain on the jobsite until
Humphrey arrived, as he was going to come there to transfer them into Local 347.8-
0 Warner testified that he received a telegram notifying him to report for work on
October 3, but that he subsequently got a telephone call from Harrison telling him to
report on September 29.
4 Durham testified without contradiction that on or about the above date he went to
Red Barn Road with Regenhardt ; and that when Regenhardt told the men to get their-
business ' agent on the job to settle the matter, George and Everett Walker replied that
"they were the union, that Humphrey worked for them . . . If he ,came out they would'
skin his head too "
8 Regenhardt testified that he called the Respondent's office about 10 a m. on Sep-
tember 30
LOCAL 347, INT'L BROTHERHOOD OF, TEAMSTERS, ETC. 783
These three employees and Burgess waited at the jobsite until 5 p.m.; but Humphrey
did not appear.
Trefts called a special meeting of the Respondent on Sunday, October 2, "because
of the problems that had been happening" on the Company's project. Trefts told
the members present "to get back to work and forget these things about the Missouri
boys coming over here, there was laws against that and the local union was subject
to penalty if you people continue in the fashion that you have." Regenhardt called
Humphrey that same night in order to request him to send four new men for work
the following Monday morning and to find out the outcome of the meeting.
Humphrey told him that he felt that the meeting was "successful," and that he
thought that the Company would not be "experiencing any more trouble."
The batch truck driver force on Monday, October 3, numbered 23. Of these,
only Kramer, Hickey, and Warner were not members of Local 347. About 10 a.m.
on October 4 the Respondent's members again walked off ,the job and congregated on
Red Barn Road. Regenhardt followed them and tried to get them to return to work.
Employees Boner and Lockett and several others told him that they were "sick."
Regenhardt then advised Yates of the trouble. Yates again told him that he was
"powerless to do anything about it" and that he wanted to go home. Yates left the
job about noon of that day.
The drivers who were members of Local 574 continued to work on October 4, as
they were not driving over the Red Barn Road route.9 About 2 p.m. Warner and
Hickey were stopped on Ferne Cliff Road, at a point about 3 miles from the Com-
pany's project. Five cars, containing about 20 or 25 men, surrounded Hickey's truck
and flagged him down. George Walker was one of the men in the group. Hickey
testified without contradiction, "[Walker] said I had been warned twice to stay off
the job and this would be the last time, to take my truck back to Missouri and I had
better not come back." Warner's truck also was blocked by the five cars. George
Walker told him that ,the men were "on strike"; and that he (Warner) was to stop
working. After they left the job, Warner, Hickey, and Kramer went to the Respond-
ent's office where they spoke to Harriss. Humphrey was not present. Kramer told
Harriss that they wanted to transfer into Local 347. Harris replied that he did not
have the authority to effect transfers, since Humphrey had charge of the construc-
tion division.
During the afternoon of October 4 a group of about 15 men appeared at the
Curve Inn Motel, Buncombe, Illinois, where some of the White Fleet drivers and
other employees of the Company had been staying. The group included employees
Trance, Lockett, and Jackson, who were batch truck drivers and members of
Local 347. Concerning his conversation with these men, Vernon McCain 10 testified
without contradiction to the following:
They wanted to make a deal with me to get rid of the white fleet drivers so
so that they might go to work on the trucks. I told them that I had no such
authority and that I would like to make some sort of a deal for safe passage
for the boys to go home , and they said that they would do that, they said they
would even help them pack their clothes.
Trance told Theodore Watson, a White Fleet driver and a member of Local 574,
about the pipeline job in Missouri on which the Illinois men were prevented from
working by Local 574. Trance said that for that reason "the Illinois boys wasn't
going to let the Missouri boys work in Illinois ." Trance also told Watson that at
the union meeting held 'on October 2 "they had agreed to take three of the Missouri
drivers and the rest of them was to go back across the river." The group of men
left the motel when a sheriff appeared.
On October 5 Regenhardt called off the paving operation for the day because
of rain . About 12 drivers who were members of Local 347, including George Walker
and Yates, assembled at the batch plant. Burgess, Kramer, Hickey, and Warner were
seated nearby in Burgess' car. Durham told these employees "to go down to where
the men were and see what the trouble was and to see if they couldn't get it straight-
ened out." He also told Burgess to go with them as he thought that the men were
"mad" at him too. The four employees went to the assembled men. Regenhardt
Burgess testified that on October 4 he was late for work, arriving about 10.30 am.;
and that he left the job about 1 p in. after he learned from Durham that the men claimed
that they were sick again.
10 It appears from Regenhardt 's testimony that at the time in question McCain was the
acting supervisor over the White Fleet.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was nearby at the time. Concerning the ensuing conversation, Kramer testified
credibly as follows:
.. Mr. Burgess asked George Walker if the boys was mad at him. And
George Walker said, "you're no union man, you're no Teamster, you're just like
them." He said, "You wouldn't make a pimple on a Teamsters rear."
Then Walker said that they was the local and pointed to himself. He
pointed to himself and he said, "We're the local." He said, "Mr. Humphrey
just works for us." He said, "If Mr. Humphrey comes down here," he said
"we'll beat the hell out of him, too." Mr. Regenhardt said, "Let's not have any
trouble, let's try to settle this peacefully." He asked Walker if we got a hold
of Mr. Humphrey and got transferred in, if they would work with us, and they
said, Yes, but unless we got transferred in, they would not work with us.
When the group broke up, Regenhardt told Burgess, Hickey, Warner, and Kramer to
try to see Humphrey that day and "to get this all straightened out or not to come
back."
About 9:30 a.m. on October 5, Burgess, Kramer, Warner, and Hickey went to
the Respondent's office where they talked to Harriss. He told them that he did not
know where Humphrey was, and that he could not transfer them into Local 347.
Harriss also stated that it was "not right" for members of Local 574 to be working
on the project when Local 347 had men out of work.
About 5 p.m. on October 5 the above four employees went to Humphrey's resi-
dence. Kramer, Hickey, and Warner asked Humphrey to transfer them into Local
347. Humphrey refused and upbraided Burgess for bringing these three employees
to his home. When Burgess attempted to explain why he was present, Humphrey
ordered him and the other employees to leave his property and warned them not to
appear on the job again." After they left Humphrey, the four employees went to
Durham's home and reported to him what had happened. On October 6, Burgess,
Hickey, Kramer, and Warner went to the Board's office in St. Louis, Missouri, where
they filed the first 4 of the 13 charges in the instant proceeding.
After October 5 and until October 12 the batch trucks were operated exclusively
by members of the Respondent. On October 11, 1960, the Respondent sent the
Company the following telegram:
Labor Board charges this union with causing your company to discharge
or layoff Albert C. Kramer, Charles Hickey, Kenneth Burgess and Eugene
Warner. This is to notify you that this union never had and does not now have
any objection to your employing any of these men. Understand they have not
reported back to work since bad weather layoff on October 5th.
On or about October 13 the Respondent sent essentially the same telegram to the
Company, with the difference being that Watson, Craft, Petty, Alfred Walker, Taylor,
Buford Kinder, Scheper, Holloway, and Turner were mentioned.ia On October 11
Humphrey called Regenhardt and told him that he was "very much interested in
getting all of the people that had filed charges back to work."
Regenhardt recalled only four of the nine batch truck drivers whose employment
had been terminated. Kramer, Hickey, and Walker were recalled on either October
12 or 13. Burgess was recalled on November 2. those not recalled were Gulley,
Stanley, Turner, Warner, and Holloway. The trucks to which they had been assigned
originally continued operating until the early part or middle of November 1960.
Of the four batch truck drivers recalled, only Hickey and Walker were assigned to
that type of truck. Their original trucks continued operating through November 19,
1960, whereas Hickey and Walker were laid off on November 3. Kramer and
Burgess, the two other recalled batch truck drivers, were assigned to water trucks
until their layoffs on November 4 and 8, respectively. This assignment involved a
workday of 8 hours, whereas their replacements on the batch trucks worked an
average of 11 to Ilih hours per day. The trucks originally assigned to Kramer and
Burgess continued to operate through November 19. The White Fleet drivers
resumed work on October 12, and continued on the job until the completion of their
work in early November.
"The above facts are based on the credited testimony of Burgess, Hickey, Kramer, and
Warner. Dunning and McClusky testified, in substance, that they and two other men
arrived in their car at Humphrey's home while the above meeting was in progress The
testimony and denials of Humphrey, Dunning, and McClusky in this connection, contrary
to the facts found above, are not credited.
'a Copies of the above telegrams were not sent to the employees.
LOCAL 347, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 785
Conclusions
The record conclusively shows that the Company on and after September 22, 1960,
laid off and discharged the employees named in the complaint because members of
Local 347 congregated in large numbers on Red Barn Road, blocked roads and trucks
being driven by employees who were members of Local 574, ordered said employees
to leave the job under threat of physical harm, and engaged in work stoppages. The
General Counsel contends that the evidence shows that such conduct was "authorized,
perpetrated, approved and/or ratified" by the Respondent. The Respondent contends,
in substance, that this conduct on the part of its members was spontaneous and was
neither instigated nor approved by it, and that it was caused by the refusal of Local
574 to permit the Respondent's members to work in its jurisdiction. In my opinion,
while the question is close, the General Counsel sustained the burden of proof.
Humphrey in his conversation with Young on June 21 attempted to cause the Com-
pany to discriminate against its White Fleet drivers within the meaning of Section
8(a)(3) of the Act. This conduct on Humphrey's part is found to be violative of
Section 8(b)(2) of the Act. Also, on October 5 Humphrey threatened to prevent
Warner, Kramer, Hickey, and Burgess from working on the job. This threat clearly
was made because of the nonmembership in Respondent of Warner, Kramer, and
Hickey, and because Burgess was persona non grata as far as the Respondent was
concerned. This conduct of Humphrey is found to be violative of Section 8(b)
(1) (A) of the Act.
Even without taking into consideration other supporting facts, it is difficult to
believe that Humphrey's activity was unrelated to that of the Respondent's members.
A common object was involved, namely, to force the Company to discharge those of
its employees who were nonmembers of Local 347. It is possible that at the incep-
tion of their activity the Respondent's members were acting on their own. That this
may have been the case is indicated by the statements of George Walker and other
members of Local 347 concerning Humphrey and the Respondent, found above.
But other facts convince me that the General Counsel at least has proved that the
Respondent condoned, approved, and ratified the conduct of its members.
Steward Yates, the Respondent's representative on the job, made no effort to get
his fellow members back to work, and himself joined in the alleged unauthorized
work stoppages. When Regenhardt advised the Respondent that the project would
not operate on September 26, its members did not congregate on Red Barn Road that
day. The Respondent took no disciplinary action under its constitution and bylaws
against the participants in the work stoppages.
In sum, the Respondent's officials knew of the trouble on the Goreville project on
and after September 22, but made no effort to remedy the situation. Humphrey and
Trefts ignored the Company's calls for help in solving the problem. They did not
appear at the project. Nor did the Respondent under the provisions of its contract
with the Company send the Company notices for posting, "notifying all employees
that the work stoppage is unauthorized." Instead, the Respondent embarked on a
course of total inaction, which amounted to silent acquiescence in the conduct of its
members. In view of Humphrey's illegal activity, which paralleled that of the mem-
bers, the inactivity of the Respondent becomes significant in appraising its part in'
the matter.
Accordingly, I find that the Respondent condoned, approved, and ratified the con-
duct of its members; and that the Respondent's course of action constituted a con-
structive request of the Company to discharge the employees named in the complaint.
By such conduct the Respondent caused or attempted to cause the Company in viola-
tion of Section 8(a)(3) of the Act to lay off and discharge the employees named in
the complaint because they were not members of the Respondent in good standing,
and thereby violated Section 8(b) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in section III, above, occurring in
connection with the operations of D. L. Harrison 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 labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE ,REMEDY
Having found that the Respondent Union has engaged in -certain unfair labor
practices I shall recommend that it cease and desist therefrom and take certain
630849-62-vol. 134-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmative action designed to effectuate the policies of the Act. It will be recom-
mended , that the Respondent Union make Eugene Warner, Kenneth ' Burgess,
Charles Hickey, Albert C. Kramer, Raymond W . Craft, Buford C. Kinder, Dwight
Taylor, James C. Turner, Hobart Holloway , Alfred Leroy Walker, Theodore Watson,
John Petty, Robert Scheper, William Stanley, and Ralph Gulley whole for the loss
of pay each may have suffered as a result of the discrimination practiced against
him by' payment to him of a sum of money equal to the amount he would normally
have earned as wages on the Goreville project of the D. L. Harrison Company less
his net earnings during such period. Backpay shall be computed in accordance
with the Board policy set forth in F. W. Woolworth Company, 90 NLRB 289.
Upon the foregoing findings of fact , and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Local 347, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, is a labor organization within tlie-meaning of Section 2(5)
of the Act.
2. By causing and attempting to cause D. L. Harrison Company, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act, to
discriminate against its employees in violation of Section 8(a)(3) of the Act, the
Respondent Union has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (2) of the Act.
3. By restraining and coercing employees in the exercise of the rights guaranteed
by Section 7 of the Act the Respondent Union has engaged'in and is engaging in
unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact ' and conclusions of law, I
recommend that the Respondent Union, its officers , representatives , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Causing or attempting to cause D. L. Harrison Company to discriminate
against any employee in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing employees of D. L.
Harrison Company in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Make Eugene Warner, Kenneth Burgess , Charles Hickey, Albert C. Kramer,
Raymond W . Craft, Buford C. Kinder, Dwight Taylor, James C. Turner, Hobart
Holloway, Alfred Leroy Walker, Theodore Watson, John Petty, Robert Scheper,
William Stanley, and Ralph Gulley whole for the loss of pay suffered by reason of
the discrimination against them in the manner set forth in the section entitled
"The Remedy."
(b) Post at its business office and meeting hall, copies of the notice attached
hereto marked "Appendix." Copies of said notice , to be furnished by the Regional
Director for the Fourteenth Region , shall, after being duly signed by the representa-
tive of the Respondent Union , be posted immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to members are customarily posted. Reasonable steps
shall be taken by the Respondent Union to insure that said notices are not altered,
defaced , or covered by any other material.
(c) Notify the Regional Director for the Fourteenth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report , what steps the
Respondent has taken to comply herewith.
. It is further recommended that, unless the Respondent Union shall , within 20 days
from the date of the receipt of this Intermediate Report, notify said Regional
Director , in writing, that it will comply with the foregoing , recommendations, the
National Labor Relations Board issue an order requiring it to take the aforesaid
action.
APPENDIX
NOTICE TO ALL MEMBERS AND ALL EMPLOYEES OF D. L . HARRISON COMPANY
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
THE RHYNE COMPANY, INC. 787
WE WILL NOT cause or attempt to cause the D . L. Harrison Company to
discharge or otherwise discriminate against any employee in violation of
Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees of the
above-named Employer in the exercise of their rights under Section 7 of the
Act, 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 by Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL make whole Buford C. Kinder, Dwight Taylor, John Petty, Ray-
mond W . Craft , Robert Scheper, Theodore Watson , Eugene Warner, Kenneth
Burgess, Charles Hickey, Albert C. Kramer, James C. Turner, Hobart Hollo-
way, Alfred Leroy Walker, William Stanley, and Ralph Gulley for any loss
of pay they may have suffered as a result of the discrimination against them.
LOCAL 347, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
The Rhyne Company, Inc. and Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , Local Union No. 991, Ind..
Case No. 15-CA-1903. November 28, 1961
DECISION AND ORDER
On August 4,1961, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and is engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached thereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended that these allegations be dismissed.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs.
The Board 1 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 this
case, and hereby adopts the findings,2 conclusions, and recommenda-
tions of the Trial Examiner.'
3 Pursuant to 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].
2 The Trial Examiner 's inadvertent error in referring to "Christmas 1960" as "Christ-
mas 1961" in the fifth paragraph of the Intermediate Report entitled "Contentions of
Parties, and Concluding Findings" is hereby corrected.
s Member Brown would reverse the Trial Examiner 's finding that Respondent did not
violate the Act by its president ' s volunteered announcements to the drivers of a wage
increase for plant workers, while advising them at the same time that similar pending
134 NLRB No. 74.