Mid-State Trucking Service

National Labor Relations Board - Board Decisions

Mar 20, 1963

141 N.L.R.B. 647 (N.L.R.B. 1963)

\MID-STATE TRUCKING SERVICE 647
or to perform any service , where an object thereof is to force or require said
employer to cease doing business with Fairway Farms, Inc.
LOCAL 584, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
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, The 120
Building, 120 Delaware Avenue, Buffalo , New York , Telephone No. Tl. 6-1782,
if they have any question concerning this notice or compliance with its provisions.
Mid-State Trucking Service and Chauffeurs , Teamsters & Help-
ers, Local #431, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America. Case
No. 20-CA-2393. March 00, 1963
DECISION AND ORDER
On January 4, 1963, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief. The General Counsel filed a
brief in support of the Intermediate Report.
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 [Chairman McCulloch and Members Rodgers and Fanning].
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 Intermedi-
ate Report and the entire record in the case, including exceptions and
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions 1 of the Trial Examiner with the exception noted below 2
1 For the reasons stated in his dissenting opinion in Isis Plumbing & Heating Co., 138
NLRB 716, Member Rodgers Is convinced that the award of interest in this case exceeds
the Board 's remedial authority . While adhering to such view, for the purpose of this
decision he is acceding to the majority Board policy of granting interest on money due.
2 The cease-and-desist provisions of the Recommended Order are to be amended as
follows :
(1) By omitting in paragraph ( b) the word "Discouraging."
,(2) By adding a new paragraph (c) reading as follows "Discharging or other-
wise discriminating against an employee because he has filed charges or given testi-
mony under the Act."
141 NLRB No. 52.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner as modified herein.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge duly filed on August 20, 1962, and October 12,
1962,1 respectively, by Chauffeurs, Teamsters & Helpers, Local #431, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
herein called the Union , the General Counsel of the National • Labor Relations Board,
herein respectively called the General Counsel 2 and the Board, through the Regional
Director for the Twentieth Region ( San Francisco , California ), issued a complaint,
dated October 23 , against Mid-State Trucking Service, herein called Respondent,
alleging that Respondent has engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1), (3), and ( 4) and Sec-
tion 2(6) and ( 7) of the National Labor Relations Act, as amended from time to
time, 61 Stat. 136, herein called the Act.
Copies of the charges and the complaint , with notice of hearing thereon, were
duly served upon Respondent and copies of the complaint and notice of hearing
were duly served upon the Union.
The complaint alleged , in substance , that Respondent , acting through designated
agents named in the complaint , interfered with , restrained ; and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act by engaging in certain
stated acts and conduct; that on or about August 3 Respondent constructively dis-
charged Edward B. Moxley because he had filed grievances with the Union against
Respondent ; that on or about August 9 Respondent offered to reinstate Moxley and
employee William Glenn , then on layoff status , if said employees would refrain from
filing grievances with the Union; and since August 31 Respondent has failed to
reinstate Moxley because of his activities in causing the Union to file the charge in
this matter on his behalf.
Respondent filed no answer.
Pursuant to due notice, a hearing was held on November 26 at Fresno , California,
before Trial Examiner Howard Myers Each party was represented by counsel.
At the opening of the hearing Respondent 's counsel moved to adjourn the hearing
until 1 o'clock that afternoon in order to allow him an opportunity to investigate
the facts in this matter and to file a written answer . The General Counsel then
moved for summary judgment in accordance with Section 102 . 20 of the Board's
Rules and Regulations , Series 8. After hearing oral argument by the General
Counsel and by Respondent 's counsel , the motion for summary judgment was
granted and the hearing closed.
In accordance with the Rules and Regulations of the Board , Section 102.20,
Series 8 , I deem true ' the allegations of the complaint herein and make the following -
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF RESPONDENT
Mid-State Trucking Service is a California corporation with its main office and
principal place of business located at Fresno, California . It is engaged in the
trucking business.
During the year immediately preceding the issuance of the complaint , Respondent
performed services valued in excess of $100,000 at Lemoore Naval Air Station,
California , which services had a substantial impact on the national defense, and
during that same period in the course and conduct of its business operations it per-
formed services valued in excess of $150,000 for construction on U.S. Highway 99,
an interstate highway , and an essential link in the channels of interstate commerce.
Respondent is, and has been at all times material , an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
1 Unless otherwise noted, all dates herein mentioned refer to 1962
a This terns specifically includes counsel for the General Counsel appearing at the
hearing.
MID-STATE TRUCKING SERVICE
II. THE LABOR ORGANIZATION INVOLVED
649
Chauffeurs, Teamsters & Helpers, Local #431, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America, is a labor organiza-
tion within the meaning of the Act and admits to membership employees of
Respondent.
III. RESPONDENT'S AGENTS
At'all times material herein, Milton R. Loyd, president, and William Cozine, vice
president, have been and are agents of Respondent acting on its behalf and are
supervisors within the meaning of Section 2 (11) of the Act.
IV. THE UNFAIR LABOR PRACTICES
On or about August 3, Respondent, acting by and through its officers, agents, and
representatives, and particularly by President Milton R. Loyd and Vice President
William Cozine, constructively discharged employee Edward B. Moxley because he
filed grievances with the Union against Respondent.
On or about August 9, Respondent, acting by and through its officers, agents,
and representatives, particularly by President Milton R. Loyd, offered to recall
to work Edward B. Moxley and employee William Glenn, then on layoff status,
if said employees would refrain from filing grievances with the Union.
Since on or about August 31, Respondent, acting by and through its officers,
agents, and representatives, has failed to reinstate Edward B. Moxley because of
his activities in causing the Union to file the charge in this matter on his behalf
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section IV, above, occurring in connec-
tion with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
substantially affect the national defense.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. Chauffeurs, Teamsters & Helpers, Local #431, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. Respondent Mid-State Trucking Service, Fresno, California, is engaged in
commerce within the meaning of the Act and its operations meet the standards set
by the Board for the assertion of jurisdiction.
3. By engaging in the conduct described above Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (4)
of the Act.
4. By engaging in such conduct and interfering with , restraining , and coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act, the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of said findings of fact and conclusions of law, and upon the
entire record in the case, it is recommended that Respondent, Mid-State Trucking
Service, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Chauffeurs, Teamsters & Helpers, Local #431,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or in any other labor organization, by discriminatorily discharging any
of its employees, or by discriminating in any other manner in regard to their hire
or tenure of employment, or any term or condition of employment.
(b) Discouraging, interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
2 Take the following affirmative action which is necessary to effectuate the policies
of the Act:
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer to Edward B. Moxley and William Glenn immediate and full reinstate-
ment to their former or substantially equivalent positions , without prejudice to their
seniority or other rights and privileges.
(b) Make whole said Edward B. Moxley and William Glenn for any loss of pay
they may have suffered by reason of the discrimination against them by payment
to each of them of a sum of money equal to that which he would have normally
earned as wages from the date of discrimination to the date of Respondent's offer
of reinstatement, less his net earnings during such a period. The backpay shall be
computed and paid in the manner established by the Board,3 and Respondent shall
make available to the Board its payroll and other records to facilitate the determina-
tion of the amounts due. Interest at the rate of 6 percent per annum shall be added
to backpay to be computed in the manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
(c) Post at its place of business in Fresno, California, copies of the attached
notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional
Director for the Twentieth Region, shall, after being duly signed by the Respond-
ent or its duly authorized representative, be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twentieth Region , in writing , within
20 days of the receipt of this Intermediate Report and Recommended Order, what
steps Respondent has taken to comply therewith .5
$F W. Woolworth Company, 90 NLRB 289.
4 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
a In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director, in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply therewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order 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 our employees that:
WE WILL NOT discourage membership in Chauffeurs, Teamsters & Helpers,
Local #431, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or in any other labor organization, by discharging
any of our employees because of their concerted or union activities, nor will
we condition employment on the cessation of those activities, or in any other
manner discriminate in regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT discriminate against employees because they have had charges
filed in their behalf under the Act.
WE WILL NOT in any manner interfere with , restrain , or coerce our employees
in the exercise of their right to self- organization , to form labor organizations,
to join or assist Chauffeurs, Teamsters & Helpers, Local #431, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization, to bargain collectively through representatives
of their own choosing, or to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all of such activities, except to the extent that such right 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 modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer Edward B. Moxley and William Glenn immediate and full
reinstatement to their former or substantially equivalent positions , without
prejudice to their seniority and other rights and privileges, and will make them
INDIANA READY MIX CORPORATION 651
whole for any loss of pay incurred as a result of their discharge with interest
thereon at 6 percent per annum.
All our employees are free to become or remain members of the above-named
Union or any other labor organization . We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
MID-STATE TRUCKING SERVICE,
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
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended, 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 . If employees
have any question concerning this notice or compliance with its provisions, they
may, communicate directly with the Board 's Regional Office , Room 703, 830 Market
Street , San Francisco , California , Telephone No. Yukon 6-3500, Extension 3191.
Indiana Ready Mix Corporation and Coal , Ice, Building Mate-
rial, Supply Drivers, Heavy Haulers, Warehousemen and
Helpers, Local Union No . 716, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case No. 25-CA-1535. March 00, 1963
DECISION AND ORDER
On September 6, 1962, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
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 Intermedi-
ate Report and the entire record in this case, including the exceptions
and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
Unlike our dissenting colleagues, we agree with the Trial Examiner's
conclusions that the Union did not make an unconditional applica-
tion for reinstatement on behalf of the strikers, and therefore that Re-
spondent was under no legal obligation to reinstate the strikers and
did not violate Section 8(a) (1) and (3) by not accepting the Union's
application.
The essential facts on this issue are as follows : On August 10, 1961,
Respondent, a newly formed corporation, took over the business of
141 NLRB No. 54.