Motor Truck Association of Southern California

National Labor Relations Board - Board Decisions

Dec 27, 1954

110 N.L.R.B. 2151 (N.L.R.B. 1954)

MOTOR TRUCK ASSOCIATION OF SOUTHERN CALIFORNIA 2151
Evidence was also developed, over the General Counsel's objection, as to the
volume of Respondent's business for the first 8 months of 1954.2 Briefly stated, that
evidence showed that though Respondent's business has declined, it enjoys a reason-
able expectation of substantial future business. Thus, its sales through August
aggregated $54,553.49 3 including $14,133.96 for tooling charges), of which more
than $32,000 were of an interstate character, as follows.
Name of Customer Location Amount
Basler Electric Co Highland, I]I________________ $863.48
Central Transformer Co (Includes $G700ior tooling charges ). Pine Bluff, Ark______________ 9,372.25
Hi-Lo Antenna Corporation (Includes $1938 foi tooling
charges)
Chicago, Ill________________ 4, 421.24
Sangamo Electric Co-_________-____________________---------- Marion,Ill__________________ 2,161.82
Diamond Match Company____________________________________ Springfield, Mass____________ 1,601.36
Century Electric Co (Includes $2754 for tooling charges )______
------------------------------ 7, 798.70
Emerson Electric Mfg Co_____________________________________ 2.896.78
Hellmich Manufacturing Co___________________________________ 13,549 30
I The last three amounts are subject to an appropriate adjustment to allow for the small percentage of
Intrastate sales made by these customers
The evidence as to tooling charges is particularly significant in evaluating Respond-
ent's future prospects Thus, for Central Transformer Company, a new customer,
Respondent has produced only $2,672 in goods, though Central has invested $6,700
in tooling. In the case of Hi-Lo Antenna Co., the tooling charges are almost three-
fourths as much as the sales price of the goods so far produced, and in Century
Electric Co. they are more than half as much. Furthermore, Respondent's records
disclosed that tooling charges were made as late as July 29 and August 30. Though
Respondent has no contracts with, and no guarantees from, those customers, the
foregoing facts obviously show a strong probability that it will continue to receive
orders from them.4
B The General Counsel contended that as the unfair labor practices had occurred in
1953, commerce information relating to Respondent's 1954 operations was irrelevant.
Respondent's ledger accounts, produced at the hearing, reflected a total of $51,004.19,
exclusive of the Hellmich account, which was not among those produced Hellmich's
representative testified that 1954 purchases from Respondent amounted to $3,549 30.
• The Trial Examiner's apparent comment to the contrary at Record p 90, lines 11-12,
Is hereby corrected by changing the word don't to the word would
MOTOR TRUCK ASSOCIATION OF SOUTHERN CALIFORNIA AND J. A. CLARK
DRAYING COMPANY, LTD. and JAMES D. GUTHRIE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, AFL, AND ITS AFFILIATED
LOCAL UNIONS Nos. 88, 224, 208, 692, 186, 381, 542, 467, 898, 578,
357, 396 AND 495 and JAMES D. GUTHRIE. Cases Nos. 21-CA-664
and ?1-CB-229. December 27, 1954
Decision and Order
On August 18, 1954, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding,' finding that the
'Except for the above-mentioned cases, as a settlement agreement was reached with
respect to all the other cases listed in the caption of the Trial Examiner's Intermediate
Report, the latter are not before the Board for decision.
110 NLRB No. 263.
2152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents, Motor Truck Association of Southern California, herein
called the Association, and J. A. Clark braying Company, Ltd., here-
inafter referred to as Clark, had not violated Section 8 (a) (1), (2),
and (3) of the Act and the Respondents, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America
and its affiliated local unions, herein called the Unions, had not
violated Section 8 (b) (1) (A) and (2) of the Act. The Trial Ex-
aminer recommended that the complaint be dismissed in its entirety,
as set forth in the copy of the Intermediate Report attached hereto.
'Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief. The Respondents, the Association,
and Clark, filed a reply brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings,' conclu-
sions, and recommendations with the minor correction 3 and modifi-
cation 4 noted below.
[The Board dismissed the complaint.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
2 The Charging Party , Guthrie, testified that in January 1950 on one occasion he saw
and spoke to William Schaeffer and on another to Lester Pitterson , superintendent of
transportation and chief dispatcher , respectively , for Clark regarding a job. Schaeffer
and I'itteison categorically denied seeing or speaking to Guthrie in January 1950 The
Trial Exaniinei not only credited then testrniony , but also concluded upon the entire
record in the case that Guthrie did not make an application for employment to Claik in
January 1950 The Geneial Counsel contends that the Trial Exanrnei erred in finding
that Guthrie did not make such an application in light of a letter dated January 16, 1950,
written by Clark 's attorney to a field exaninrer which the Tiial Examiner received in evi-
dence and which indicated , inter alia, that it was the attorney ' s understanding that Guthrie
applied for employnieiit with an unnamed Clark dispatcher on or about January 4, 1950
While we agree that the Tiral Examinei properly admitted the letter as evidence of what
the attorney 's undeistanding was at the particular time, in view of its vague and ambig-
uous natuie, the fact that it was wimtten 4 years before the hearing and was obviously
based upon hearsay info, nation, we cannot agree with the General Counsel that the
'Trial Examnici , having based his deteimrnation upon the credited testimony and the
recoi tl is a whole, ei red in not giving it probative weight
3In his Intermediate Report the Trial Examiner made the inadvertent statement that
Guthrie, the Charging Party, testified lie was accompanied by a friend, Phil Constantine,
when lie called at Clark 's and asked William Schaeffer, Clark ' s superintendent of tians-
portation. for a fob This misstatement in the Inteiniediate Report does not affect the
ultimate conclusions The report is heieby collected to show that Guthrie did not testify
that Constantine NN as with hint is hen lie spoke to Schaeffer
4 The Ti ial Examiner found that the union -security clause in the conti act of August 20,
1948, between the Association , on behalf of its members including Clark and the Unions
did not conflict kith or %iolate Section 8 ( a) (3) of the Act The General Counsel con-
tends that this clause was illegal We find it unnecessary to pass upon the merit of the
Trial Examiner ' s finding because the General Counsel states that The clause in question
was modified in a hat he considers a legal fashion in 1951 , the agieenient is not under
.attack here. and, no ieniedy is sought with reference to the agreement standing by itself
MOTOR TRUCK ASSOCIATION OF SOUTHERN CALIFORNIA 2153
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Charges and amended charges having been duly filed by the 7 individuals named
herein against the Respondent Association, the Respondent Employers, and the
unions named in the above 14 numbered cases, herein called Respondent Unions,
and the said cases having been duly consolidated, the General Counsel of the Na-
tional Labor Relations Board, herein respectively called the General Counsel' and
the Board, issued a consolidated complaint alleging that the Respondent Association,
the Respondent Employers, and Respondent Unions, and each of them had engaged
in and was engaging in unfair labor practices affecting commerce within the mean-
ing of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. More specifically, the consolidated complaint alleged that the Respondent
Association and the Respondent Employers violated Section 8 (a) (1), (2), and (3)
of the Act, by (1) refusing to hire, as the case may be, certain named complainants
unless, and until, said complainants had been cleared for employment by, as the
case may be, certain named unions; (2) entering into collective-bargaining agree-
ments with Respondent Unions containing unlawful union-security clauses, and (3)
giving unlawful assistance to Respondent Unions. That Respondent Unions vio-
lated Section 8 (b) (1) (A) and (2) by attempting to cause and causing Respondent
Employers to discriminate against the complainants herein named. The Respond-
ents duly filed answers denying generally the material allegations of the consolidated
complaint imputing to them the commission of unfair labor practices.
Pursuant to due notice, a hearing was held on various dates between June 4, 1951,
and July 22, 1954, at Los Angeles, California, before the duly designated Trial Ex-
aminer. All parties were represented at the hearing Full opportunity was afforded
the parties to be heard, to examine and cross-examine witnesses, to introduce rele-
vant evidence, to argue orally at the close of the hearing, and thereafter to file
briefs as well as proposed findings of fact and conclusions of law. The various mo-
tions, made by counsel during the course of the hearing, to dismiss the complaint
as to Respondent Association, Respondent Unions, and J. A. Clark Draying Com-
pany, Ltd., herein called Clark, are disposed of in accordance with the findings, con-
clusions, and recommendations hereinafter set forth.
On June 8, 1951, during the course of the presentation of his case-in-chief, the
General Counsel stated on the record that the parties had been working on a settle-
ment stipulation and he believed that if given an opportunity to confer the parties
would reach an agreement to settle the controversy. The General Counsel's unop-
posed motion to continue the hearing indefinitely was granted. Thereafter, a set-
tlement agreement was reached with respect to all cases involved in the consoli-
dated proceeding except Case No. 21-CA-664 and Case No. 21-CB-229 which con-
cerned the issues raised by the charges filed by James D. Guthrie.
Under date of June 23, 1954, the Acting Regional Director for the Twenty-first
Region issued an order, which was duly served on all Respondents in the consolidated
proceeding, severing Cases Nos. 21-CA-664 and 21-CB-229 from their companion
cases and resetting the hearing thereon for July 19, 1954. Pursuant to said order,
the hearing was continued in said two cases.
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 OPERATIONS OF J. A. CLARK DRAYING COMPANY, LTD.
J. A. Clark Draying Company, Ltd, herein called Clark, is a common carrier
engaged in the transportation of freight and general merchandise in interstate com-
merce by motortruck and other means of transportation and maintains a terminal in
Los Angeles, California. Clark, during all times material herein, held, and still
holds, certificates of public convenience and necessity issued by the Interstate Com-
merce Commission. During 1950, Clark transported freight and merchandise in
interstate the revenue from which exceeded $100.000.
Motor Truck Association of Southern California, a California corporation having
its offices and principal place of business in Los Angeles, California, is composed
of motortrucking operators, including Clark. It was organized, and exists, for the-
'This teini specifically includes counsel foi the General Counsel appearing at the
hearing
2154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of performing various services for its members who during 1950 , trans-
ported freight and merchandise in interstate commerce valued at more than
$50,000,000, a substantial portion of which emanated from Los Angeles, California.
At all times material herein Respondent Association was the duly authorized repre-
sentative of various of its members, including Clark, for the purpose of entering
into collective -bargaining contracts with the unions here involved covering certain
employees of said members.
Upon the above undisputed facts the Trial Examiner finds that during all times
material herein Clark and Respondent Association (being an employer within the
meaning of the Act) were engaged in commerce within the meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Unions Nos. 88, 224, 208, 692, 186, 381, 542, 467, 898, 578,
357, 396 and 495, affiliated with American Federation of Labor, herein called
Teamsters , are labor organizations admitting to membership employee members
of Respondent Association, including employees of Clark.
III. THE ALLEGED UNFAIR LABOR PRACTICES
James D. Guthrie, the Charging Party in Cases Nos. 21-CA-664 and 21-CB-229,
was employed by Clark as a truckdriver from February 7, 1947, until he quit the
following August 29. While thus employed, Guthrie was a member of Local 208,
an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. At the commencement of Guthrie's employment with
Clark, he took a physical examination in accordance with the Interstate Commerce
Commission's regulations.
Under date of August 20, 1948, Respondent Association, on behalf of those
members, including Clark, who had given it expressed authority to enter into col-
lective-bargaining agreements, entered into a contract covering, among others,
Clark's truckdrivers. Said contract provided in part that
. All employees covered by this agreement shall become and remain mem-
bers of the Union in good standing as a condition of continued employment.
If the Union is unable to furnish employees satisfactory to an Association
member, non-union men may be employed, provided however, that when non-
union men are employed the member shall notify the Union in writing of
such fact within 48 hours; and such new employees will make application for
membership in the Union within 30 days (15 days if and when permitted by
law) after their employment, and unless found unworthy, such new employees
shall be admitted to membership by the Union . . .
Guthrie testified that early in January 1950, he, accompanied by a friend, Phil
Constantine, called at Clark's and asked William Schaeffer, Clark's superintendent
of transportation for a job; that Schaeffer inquired whether he had not previously
worked for Clark, that when he replied in the affirmative, Schaeffer said, to quote
Guthrie, "He needed a couple of drivers and I could leave my name and phone num-
ber and he would get in touch with me"; that the following day a neighbor of his left
a message at his house stating that Schaeffer had telephoned; that on January 5,
pursuant to this telephone call he, again accompanied by Constantine , called on
Lester Pitterson,2 a Clark dispatcher, at the National Carloading Docks, and told
Pitterson that Schaeffer had left word that he should see Pitterson about employment;
that Pitterson said, "All right," handed him a little white card upon which Pitterson
had written, "Please admit James D. Guthrie for employment"; that Pitterson signed
said card and also noted thereon, "See Karl"; and that Pitterson then instructed
him "to go and get squared up with the union" and then return to Clark.
Guthrie further testified that upon leaving Pitterson he and Constantine went
to the Teamsters Hall; that upon arriving there he handed the receptionist the card
Pitterson had given him and then stated that he wanted to see Karl; that the recep-
tionist took the card, said "in this case" he would have to see the business agent,
and then went into a private office and returned with a gentleman; that said gentle-
man said, to again quote Guthrie, "I couldn't get an 0. K. to go to work because I
was four months behind in dues, because he had three hundred and so many men in
the hall now, that did not have work and he could not put me to work furthermore",
that when he told this gentleman (whose name he never knew nor did he know
2 Also referred to in the record as Peterson.
MOTOR TRUCK ASSOCIATION OF SOUTHERN CALIFORNIA 2155
whether he was employed in any capacity by Local 208) that he had secured a
job and could not understand why he could not receive Local 208's approval, the
gentleman replied that he, in any event, would have to pay the required $ 50 rein-
statement fee before he could be given an approval; that said gentleman then.said
that if "Clark can go out and pick their men off the street, it would tear up the
charter"; that thereupon the gentleman said he would telephone Schaeffer, that the
gentleman went into a private office, returned in about 5 minutes and said, to quote
Guthrie, "I wouldn't go to work for Clark or for any one else," and then tore up
.the card which Pitterson had handed him; and that he and Constantine then left
The Teamsters Hall.
William H. Schaeffer, Clark's superintendent of transportation for the past 20
years, testified that Guthrie was employed by Clark from February 7, 1947, until
he quit on August 29, 1947; that on February 7, 1947, Guthrie, as required of all
:truckdrivers under the Interstate Commerce Commission rulings, took his physical
examination on the first day of his employment by Clark; that he knew Guthrie
when the latter worked for Clark in 1947; that he never saw or spoke to Guthrie
'from the time Guthrie had quit Clark's employ on August 29, 1947, until the open-
ing of the hearing herein; that since Guthrie's 1947 termination of employment with
Clark he did not have any telephone conversation with Guthrie, or with anyone
else, regarding rehiring Guthrie; that the only persons besides himself with authority
to hire or fire truckdrivers are the head and assistant dispatcher; that the only dock
at which Clark handled freight in 1950 was the one located at its main offices; that
from 1938 to January 31, 1949, Clark also handled freight at the docks of the
National Carloading Corporation located about 2 blocks from Clark's docks; and
that since January 1949, Clark has performed no services for National Carloading
Corporation and therefore no Clark employee had any occasion to go to the docks
of National Carloading on any business for Clark.
Lester Pitterson, Clark's now chief dispatcher, testified that in 1947, he was a
roving dispatcher and knew Guthrie at that time; that he had not seen Guthrie
-since Guthrie left Clark's employ in 1947 until July 20, 1954, the day after the
hearing herein opened; that he did not have any conversation with Guthrie in
January 1950 nor did he ever give Guthrie "a card or a piece of paper with writing
on it with directions to [Guthrie] to go to the" Teamsters Hall; that he knows
no one connected with the Teamsters Hall whose first or last name is Karl, that
he does not now know, nor did he in 1950 know, any person whose first or last
name is Karl, that the only time he ever sent any truckdriver to the Teamsters Hall
was when he gave the driver a note addressed to Local 208 requesting that Local
208 arrange for the bearer of the note to receive a physical examination, that
Schaeffer never sent him any truckdriver with instructions to hire the driver; and
that he did not work at the National Carloading Docks, nor did he have any
occasion to go there, in 1950
Upon consideration of the testimony of Schaeffer, Pitterson, and Guthrie, the Trial
Examiner credits the versions of Schaeffer and Pitterson and rejects that of Guthrie.
In crediting the testimony of Schaeffer and Pitterson, the Trial Examiner was par-
ticularly influenced by the fact that their testimony, both on direct and on cross-
examination , was consistent, clear, and definite. Neither attempted at any time to
give his testimony new direction or emphasis to meet situations developed on cross-
examination or as a result of afterthoughts brought to mind by questions of counsel.
The same cannot be said of Guthrie's, which is not only unconvincing but is replete
with self-contradictory statements. In addition, the Trial Examiner specifically finds
that: (1) Guthrie did not see or speak to either Schaeffer or Pitterson in January
1950; (2) neither Schaeffer nor Pitterson in January 1950, instructed Guthrie to
go to the Teamsters Hall; (3) Schaeffer did not have any telephone conversation
with Guthrie or with any one else in January 1950, regarding reemploying Guthrie;
,(4) in January 1950, Pitterson did not give Guthrie a card or a piece of paper
directed to Karl, to Local 208, or to any one else; and (5) the only time Schaeffer
,or Pitterson requested a Clark truckdriver or an applicant for a truckdriver's job
to go to the Teamsters Hall was for the purpose of having such a person take a
physical examination.
According to the undenied and credible testimony of John W. Filipoff, the secretary
of Local 208 since 1948, there has never been any person whose first or last name
is Karl connected in any official capacity with Local 208 since 1948.
Upon the entire record in the case the Trial Examiner is convinced, and finds, that
Guthrie never applied to Clark in January 1950 for reemployment nor was Local
208 in January 1950 ever requested to approve or clear Guthrie for employment
with Clark. The Trial Examiner also finds, upon the basis of the entire record in
.the case, that the union-security clause of the contract of August 20, 1948, did not
2156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conflict with or violate Section 8 (a) (3) of the Act.3 Furthermore, the record
affirmatively shows that Clark did not require its truckdrivers or applicants for a
truckdriver's job to be cleared or be approved by Local 208 as a condition of
employment.
The statement in said union-security clause, "If the Union is unable to furnish
employees satisfactory to an Association member, non-union men may be employed
", coupled with the fact that the union-security clause was otherwise valid,
does not of necessity imply that Clark contracted to hire only members of Local
208 to fill truckdriver jobs.
Upon the record as a whole the Trial Examiner will recommend that the com-
plaint in Cases Nos. 21-CA-664 and 21-CB-229 be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. J. A. Clark Draying Company, Ltd., Los Angeles , California , is, and at all
times material herein was , engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and its affiliated Local Unions Nos. 88, 224, 208, 692, 186,
381, 542, 467, 898, 578, 357, 396 and 495, are labor organizations within the
meaning of Section 2 (5) of the Act.
3. Respondent Association, Respondent Unions, and Clark, have not, as alleged
in the complaint , engaged in unfair labor practices within the meaning of the Act.
[Recommendations omitted from publication.]
3.41 Massera, Inc., et at., 101 NLRB 837.
AMERICAN STEEL BUCK CORPORATION and ARCHITECTURAL AND ENGI-
NEERING GUILD , LOCAL 66, AMERICAN FEDERATION OF TECHNICAL EN-
GINEERS, AFL . Case No. 2-CA-3%19. December 28, 1954
Decision and Order
On September 30, 1954, Trial Examiner Sidney Lindner issued his
Intermediate 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 copy of the Intermedi-
ate Report attached hereto. Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief. The Re-
spondent's request for oral argument is hereby denied as the record,
exceptions, and brief, adequately present the issues and position 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 Intermedi-
ate Report, the exceptions, the brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
110 NLRB No. 265.