Teamsters Freight Local No. 480

National Labor Relations Board - Board Decisions

Oct 20, 1967

167 N.L.R.B. 920 (N.L.R.B. 1967)

920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Freight Local No. 480 , affiliated with In-
ternational Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and
Hilton D. Wall. Case 26-CB-324
October 20, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 25, 1966, Trial Examiner Harold
X. Summers issued his Decision in the above-enti-
tled 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 Trial Examiner's Decision.
Thereafter the Respondent filed exceptions to the
Decision and a supporting brief, and the General
Counsel filed a cross-exception to the Trial
Examiner's Decision and a supporting statement.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Teamsters Freight Local
No. 480, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, its officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified:
1. Substitute the following paragraph 1(a) for the
present paragraph:
"(a) Entering into, maintaining , or giving effect
to any oral agreement or understanding with Potter
Freight Lines, Inc., which discriminates against any
employee with respect to seniority with Potter
Freight Lines, Inc., on the basis of his prior lack of
membership in or representation by a labor or-
ganization."
2. Substitute the following paragraph 1(b) for the
present paragraph:
"(b) Causing or attempting to cause Potter
Freight Lines, Inc., to deprive Hilton D . Wall of
seniority rights based upon his last employment
prior to that with Potter."
3. Add the following as paragraph 1(c):
"(c) In any like manner restraining or coercing
employees of Potter in the exercise of their right to
self-organization to form labor organizations , to join
or assist any labor organization , to bargain collec-
tively through representatives of their own choos-
ing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection , and to refrain from any and all such activi-
ties."
4. Amend the Trial Examiner 's notice to em-
ployees by deleting the first indented paragraph and
substituting the following:
WE WILL NOT enter into, maintain , or give
effect to any oral agreement or understanding
with Potter Freight Lines, Inc., which dis-
criminates against the seniority of any em-
ployee of Potter Freight Lines, Inc., because
of his prior lack of membership in or represen-
tation by a labor organization.
WE WILL NOT cause or attempt to cause
Potter Freight Lines , Inc., to deprive Hilton D.
Wall of seniority rights based upon his last em-
ployment prior to that with Potter.
' We agree with the Trial Examiner that the Respondent violated Sec.
8(b)(1)(A). In addition , we find as alleged in the complaint that the
Respondent violated Sec 8(b)(2) by entering into an oral agreement with
Potter Freight Lines, Inc., that Hilton D. Wall would be placed at the bot-
tom of the employees ' seniority list at its Nashville terminal because em-
ployees of Cookeville Motor Lines had not been represented by a labor
organization . By entering into such agreement , Respondent caused or at-
tempted to cause Potter Freight Lines, Inc., to discriminate in regard to
terms and conditions of Wall's employment in violation of Sec. 8 (a)(3) of
the Act.
TRIAL EXAMINER'S DECISION
HAROLD X. SUMMERS , Trial Examiner: This case was
heard upon the complaint' of the General Counsel of the
National Labor Relations Board (herein called the
Board), alleging that Teamsters Freight Local No. 480,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein called Respondent or Local 480), had engaged in
and was engaging in unfair labor practices within the
meaning of Section 8(b)(2) of the National Labor Rela-
tions Act (herein called the Act). Respondent's answer to
the complaint, as amended at the hearing, admitted some
of its allegations and denied others; in effect, it denied the
commission of any unfair labor practices. Pursuant to
notice, a hearing was held before me at Nashville, Ten-
nessee, on August 18, 1966; all parties were afforded full
opportunity to appear and to examine and cross-examine
witnesses, and thereafter to submit briefs.
Upon the entire record in the case, including my
evaluation of the reliability of the witnesses based upon
the evidence and my observation of their demeanor, I
make the following:
' The complaint was issued June 24, 1966. The charge initiating the
proceeding was filed May 5, 1966.
167 NLRB No. 135
TEAMSTERS FREIGHT LOCAL NO. 480 921
FINDINGS OF FACT
I COMMERCE
Potter Freight Lines, Inc. (herein called Potter), is and
at all material times has been a Tennessee corporation en-
gaged as a common carrier of freight by motor vehicle; its
principal office and place of business is located at Nash-
ville, Tennessee, and it operates freight terminals in
Nashville and in several other cities in Tennessee. During
the 12 months preceding the issuance of the instant com-
plaint, Potter derived gross revenues in excess of $50,000
each for services performed in the transport of freight
destined for delivery from points in the State of Tennes-
see to points outside Tennessee and in the transport of
freight within the State of Tennessee which originated at
points outside Tennessee.
Potter is an employer engaged in commerce within the
meaning of the Act.
iI. THE UNION
Local 480 is and at all times material has been a labor
organization within the meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The sole issue here is whether Local 480 unlawfully
caused Potter to place the Charging Party, Hilton D.
Wall, at the bottom of its employees' seniority list.
B. The Setting and Chronology of Events
For about 12 years prior to January 1, 1966, Potter had
been dealing with a local union (herein called Local 327)
of the same International union with which Local 480 is
affiliated The working conditions of Potter's employees,
at that time, were covered by a collective-bargaining
agreement2 which was not due to expire, by its terms,
until March 3 1, 1967 This agreement contained the fol-
lowing pertinent provisions with respect to seniority:
Article 5, Section 1: Seniority rights for em-
ployees shall prevail under this agreement and all
agreements supplemental hereto....
* * * *
Section 3: (a) In the event the Employer absorbs
the business of another private, contract or common
carrier, or is a party to a merger of lines, the seniority
of the employees absorbed or affected thereby shall
be determined by mutual consent between the Em-
ployer and the Union involved.
In the application of this provision the following
general rules shall apply:
Merger, purchase, acquisition, sale, etc.
(1) If both carriers involved are solvent then
the seniority lists of the two Companies should
be dovetailed so as to create a Master Seniority
list based upon total years of service with either
Company... .
(2) If ... one of the Companies is insolvent
at the time of the transaction, then the em-
ployees of the insolvent Company will go to the
bottom of the master seniority list....
In the application of this rule, it is immaterial
whether the transaction is called a merger,
purchase, acquisition, sale, etc. It is . im-
material whether separate terminals of the Com-
panies are physically merged or not....
(3) If the transaction involved merely a
purchase of permits or rights by one carrier from
another carrier without the purchase or acquisi-
tion of equipment, terminals, or business, the
employees of the Company selling the permits
shall have no seniority rights at all, but shall be
offered opportunity for employment at the bot-
tom of the Company purchasing the permits. If
such employees are hired, they shall be given
seniority credit for fringe benefits only....
Article 39, Section 1: Seniority rights shall
prevail.
Section 2: A list of the employees in the order of
their seniority shall be posted at their place of em-
ployment. Controversies regarding seniority shall be
settled [through a specified grievance procedure
setting forth a number of steps: (1) Negotiations
between the involved union and employer; (2) failing
settlement there, submission to a "Multi-State Com-
mittee" or its equivalent, (3) no majority decision
having been reached by that Committee, submission
to the "Area Grievance to an umpire if a majority of
the Area Grievance Committee so decides ]. .
Under the contract in question, I find that substantial em-
ployment rights were at least in part dependent upon an
employee's place on his seniority list.
Beginning early in 1965, there were discussions
between representatives of Potter and of another freight
carrier concerning the possible consolidation of their
operations. The other carrier, known as Cookeville
Motor Lines (hereinafter called Cookeville Motor), was
owned by W. C. Keyt and Charles Hershaiser, copart-
ners. By the agreement which was finally consummated,
to be effective January 1, 1966, (1) Potter would take
over Cookeville Motor's assets and liabilities; (2) shares
of Potter's capital stock, augmented by newly issued
shares, would be divided equally among four individuals,
including Keyt and Hershaiser; and (3) thereupon, these
two would become officers of Potter actively engaged in
its management. Also (4) Cookeville Motor's sole ter-
minals, located at Nashville and at Cookeville, Tennes-
see, would be closed down and (5) Cookeville Motor's
employees at those terminals would be taken into the em-
ployment of the surviving enterprise at Potter's Nashville
and Cookeville terminals, respectively.
(At the instant hearing, this transaction was more often
than not referred to by one or another of counsel and wit-
nesses as a "merger." The parties stipulated, however,
that it constituted a "sale and purchase." Although I shall
adopt this agreement of the parties as controlling my
terminology herein, my findings and conclusions would
be the same, regardless of the nature of the transaction.)
Cookeville Motor's employees were not represented
by any labor organization.
On two or more occasions during the latter stages of
the negotiations between the two companies, Wayman
Hill, president of Potter, had discussed the impending
2 The agreement was a National Master Freight Agreement , as supple- graphical area which included Potter's operations , Potter and Local 327
mented by the Southern Conference Area Agreement covering the geo- were signatories
922 DECISIONS OF NATIONAL
move with Don Vestal, then president of Local 327, bar-
gaining agent of Potter's employees He explained that
the move was designed to streamline operations and
would not put anyone out of work; on the contrary, he
said, all Potter employees would be retained and the
Cookeville Motor employees would be taken over by
Potter. (In answer to a specific query, he said that
Cookeville had but one man working in Nashville, a
"good" man who was "needed" by Potter.) It was agreed
between the two-orally, so far as this record reveals -
that the Cookeville Motor employees who came over to
Potter would go to the bottom of the seniority lists of the
respective terminals involved.
On or about December 18, 1965, the employees of
both Potter and Cookeville Motor were invited to a
dinner meeting by the management of both companies.
The occasion was designed to serve a double purpose - as
an employees' Christmas dinner and as an opportunity to
give details of the coming consolidation. Hill, the main
speaker, gave details of the "merger." Among other
things, he said that none of the Cookeville Motor em-
ployees would be out of work; he said that they would
become a part of the Potter workforce-at the bottom of
the list there.
After the meeting ended, Hill and Keyt (one of
Cookeville Motor's partners) had coffee with Hilton
Wall, Cookeville Motor's sole employee at Nashville.
(Wall, a dockman and general driver hired in July 1964,
spent about 25 percent of his time working in the terminal
office.) The keynote of the meeting was the enthusiasm of
the three over the impending move. Wall, for example,
was of the opinion that he would make more money. The
seniority list entered into the conversation only to the ex-
tent that Hill said that being at the bottom of Potter's
seniority was "as good as" being at the top, because
Potter never laid off employees.
On January 1, 1966, the terms of the sale-and-purchase
agreement outlined above, went into effect.
Meanwhile, during the latter part of 1965, Local 327
had been undergoing a reorganization. A new local, the
Respondent herein, had been chartered and was in
progress of being installed; eventually, it was contem-
plated, Local 480's jurisdiction would cover all freight
operations in the area concerned and Local 327 would
cover what are known as industrial or miscellaneous
operations There is some lack of certainty as to the exact
dates of the formal commencement of activities by Local
480, but, for the purposes of this proceeding, based upon
stipulations, concessions, and evidence in the record, I
find that (1) Local 480 succeeded Local 327 as exclusive
bargaining agent of Potter's employees on and after
January 1, 1966; (2) the collective-bargaining agreement
above referred to remained in effect with respect to
Potter's employees after January 1, 1966, except that
Local 480 succeeded Local 327 as the union signatory
representing these employees; and (3) with respect to
certain acts hereinbelow found to have been performed
by individuals who may nominally have been agents of
Local 327 rather than of Local 480, such individuals were
acting on behalf of, and responsibility for such acts is at-
tributable to, Local 480 - specifically, that, in their con-
duct described hereinbelow, Luther Watson, Leon
Medlin, and Charles Fisher, were acting as agents of
Local 480.
S This record is bare as to the composition of the committee
4 For example , Local 480 submitted two letters in opposition to the ac-
tion sought by the grievance , signed by the two employees who would be
LABOR RELATIONS BOARD
On January 3, 1966, pursuant to instructions given
him, Hilton Wall reported for his first day of work at
Potter's Nashville terminal On the same day, a seniority
list of Potter's Nashville terminal employees was posted,
which list did not contain Wall's name. The explanation
is obvious: this was a list of that terminal's employees as
of the end of 1965 -before the addition of any Cookeville
Motor employees.
Subsequently, however-on or about January 26-a
new seniority list was posted at the Nashville terminal.
Now, Wall's name did appear, the last of 16 names listed.
After each of the other names a date was inserted, which
date, I find, was the original date of hiring by Potter. Next
to Wall's name was the notation "1-3-66 (COMPANY
SENIORITY 7-6-64)."
On or about February 15, Wall, in the presence of at
least five other employees, filed a grievance over the
"deprivation" of his seniority. (Had he been "dovetailed"
on the seniority list to allow credit for time spent in
Cookeville Motor's employ, he would have been 14th in-
stead of 16th on the list.) Local 480's Business Agent
Luther Watson, with whom he filed the grievance, asked
him if he had any "contract rights" at Cookeville Motor.
Receiving a (negative) answer, Watson said, in effect, that
the grievance would be processed but that "it would do
Wall no good" because the Supreme Court had ruled that
"when a union company takes over a nonunion company,
the nonunion company's employees go to the bottom of
the list." Wall asked when the ruling was laid down, but
Watson was unable to give details; and to Wall's assertion
that he would take his own case to the Supreme Court,
Watson said that was his privilege - if he could afford it.
Wall had filed the grievance in the hope that Potter and
Local 480 representatives would "get together" to adjust
his seniority situation. (In fact, there is some reason to be-
lieve, on this record, that on the earlier occasion of a com-
plaint by Wall to Keyt - formerly a Cookeville Motor
partner but now vice president and general manager of
Potter - the latter suggested that the filing of a grievance
might lead to such a meeting.) Now, within days after he
filed the grievance, he specifically asked Charles Fisher,
another of Local 480's business agents, to get together
with him and Keyt to discuss the matter, but Fisher
declined to meet, saying that it was now in the hands of
the grievance committee. Notwithstanding this, Keyt, in
a conversation held at or about that time with Fisher, did
raise the subject; he volunteered to testify with respect to
Wall's grievance, and he said that Potter would abide by
the decision of the grievance committee.
The grievance quickly went to the second step of the
machinery - submission to the Multi-State Grievance
Committee.' Local 480 did not actively argue for Wall's
position. Quite the contrary. In view of the fact that (it
concedes) its own position was contrary to that of the
grievant, I find that its representatives actively opposed
the action sought.4 The most that can be said is that Local
480 "processed" the grievance.
The Multi-State Conference denied the grievance.
On May 5, 1966, Wall filed the instant charge, along
with one 5 against Potter With respect to -the latter
proceeding, Potter entered into a settlement agreement
whereunder it agreed not to enforce any decision of Local
480 with respect to Wall's seniority status which was
predicated on the union status of employees while work-
disadvantaged thereby
5 Case 26-CA-2410
TEAMSTERS FREIGHT LOCAL NO. 480
ing for Cookeville Motor and to treat Wall, for seniority
purposes, on the basis of the date he was hired at
Cookeville Motor. Local 480-not a party to that agree-
ment - has indicated it would take "necessary steps" to
prevent or to protest any implementation of these un-
dertakings.
C. Conclusions
It is well settled" that it is not unlawful per se for a
union to cause an employer adversely to affect the status
of an employee; that the lawfulness of such action de-
pends upon the motivation of the union; that such motiva-
tion, to render the conduct violative of the Act, must re-
late to the encouragement (or discouragement) of union
membership, union adherence, or union "regularity";
and, finally, that unlawful motivation may be inferred
from the arbitrariness, invidiousness, or irrelevance of the
conduct in question.
The General Counsel argues, in this matter , that Local
480 caused Potter to place Wall at the bottom of a seniori-
ty list rather than in the position to which his employment
by Cookeville Motor would have entitled him because he
was not represented by a labor organization at Cookeville
Motor. Local 480, on the other hand, urges that unionism
played no part in the action-that Wall was given no
seniority rights based on his pre-Potter employment
because, until he came to Potter, he possessed no seniori-
ty rights.
The parties introduced evidence on the question of
whether, in fact, Wall did have any "seniority rights" at
Cookeville Motor. To the extent it had relevance, I find
that Cookeville Motor's employees did not enjoy seniori-
ty rights within the meaning of the term as usually em-
ployed in the area of employee relations. In arriving at
this conclusion, I rely on credited testimony to the effect
that, while, under ordinary circumstances, Cookeville
Motor would give weight to an employee's seniority in
making personnel decisions, its) agents could, and would
if they wished, ignore the factor for any or no reason.
Seniority was not a term or condition of work at
Cookeville Motor.7
But, in my opinion, this is not dispositive of the matter.
The question is not what seniority rights the Cookeville
Motor employees brought with them from that organiza-
tion, but what rights they were to start with at Potter. Pur-
suant to agreement between Local 480 and Potter, they
started with none; yet, by counsel's own statement, had
they possessed seniority rights under a collective-bar-
gaining contract, those rights would have been honored.
Clearly - since the existence of a collective-bargaining
contract connotes representation by a labor organization
6 For amplification, see discussion in Chicago Federation of Musi-
cians , Local 10 (Shield Radio), 153 NLRB 68,81-84.
T See Trailmobile Company v Whirls, 331 U S 40, fn 21 , and authon-
ties cited
8 Local 357, Teamsters [Los Angeles-Seattle Motor Express] v
N L R B, 365 U S 667, 675-676
When a union engages in collective bargaining and obtains increased
wages and improved working conditions , its prestige doubtless rises
and, one may assume, more workers are drawn to it ... The truth is
that the union is a service agency that probably encourages member-
ship whenever it does itsjob well But, as we said in Radio Officers v
Labor Board [347 US 17, 43] the only encouragement or
discouragement of union membership banned by the-Act is that which
is "accomplished by discrimination."
923
-the deprivation of seniority at Potter coincides with, if
it does not flow from, the absence of union representation
at Cookeville Motor.
It is, of course, possible that, even if a union had
represented Cookeville Motor employees, the collective
bargaining there might have resulted in no seniority
rights. In such case (accepting the position taken by
Respondent here), the employees would have been ac-
corded no prehire seniority rights at Potter; and, in such
case, obviously, the failure to give seniority rights would
not have been attributable to prior nonunion status. So
the question still remains-Was Local 480's conduct here
based upon the (Cookeville Motor employees') absence
of seniority rights or absence of union representation?
If there were no additional factors shedding light upon
the answer to this question here-i.e., if we merely had
the seniority clauses quoted above, only giving weight, as
they do, to prior seniority rights, plus a strict enforcement
of the clause-the General Counsel would not have
sustained his burden." (Indeed, it should be noted, the
General Counsel does not attack the validity of the
clauses; rather, he accuses Local 480 of discriminatorily
applying them) And so we must examine illuminative
evidence, if there is any.
I have found, supra, that Luther Watson, agent of
Local 480, told Wall, in the presence of other employees
of Potter, that it would be futile for him to grieve over his
"lost" seniority since, the Supreme Court had ruled,
when a union company takes over a nonunion company
the nonunion employees go to the bottom of the list. His
reference, presumably,9 was to a year-old decision of the
Court of Appeals for the First Circuit in the Whiting Milk
case,10 the tenor of which might well lead one to conclude
that, as between union and nonunion employees affected
by a merger, seniority based on past experience could
lawfully be given the first group and denied the second.
The actual situation there prevailing, and the precedential
applicability of that ruling to the instant case, will be al-
luded to hereinbelow; suffice it to say at this time that (I
find) Local 480's position was that expressed by Watson
on February 15.
Statements of counsel served further to explain Local
480's motivation: Local 480's position, in these matters,
is that existing seniority rights created by contract to
which a Teamsters local was signatory would be honored
by being dovetailed; seniority rights created by the collec-
tive-bargaining agreements of other labor organizations
would be "a matter of negotiations," whereas seniority
resulting from other than collective-bargaining contracts
and general seniority standing undignified by contract
would carry no weight whatsoever."
On this record, I am convinced that Local 480's con-
duct herein was based not on the existence or nonex-
We cannot assume that a union conducts its operations in violation of
law
9 The General Counsel, in his brief, suggests that the reference was to
Humphrey v Moore, 375 U S 335, and that Watson, in his remark, was
erroneously oversimplifying the issue there . In point of fact, that case
bears no resemblance to the situation postulated by Watson, there, the
Court ruled that the union , in the part it played in dovetailing the seniority
of two groups of union-represented employees, had acted upon wholly
relevant , and not capricious or arbitrary , considerations
18 N.L R B. v Whiting Milk Corp., 342 F 2d 8
11 Thus, in effect, three classes of employees have been created in the
matter of considering past service with a purchased or merged company
Teamster-represented employees , other union -represented employees,
and unrepresented employees.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
istence of formal seniority rights but on the existence or
nonexistence of prior representation by (1) locals of the
International with which Local 480 was affiliated, or (2)
any other labor organization.
The precedent most directly in point is the Board's
Decision in Whiting Milk Corporation (Milk Wagon
Drivers, Local 830), 145 NLRB 1035. There, the ap-
plicable collective-bargaining contract contained a provi-
sion that, in the event of a merger with or acquisition of
"another Union Company, the seniority and category ser-
vice of those affected by such action shall [with certain
specified limitations] be deemed to have been established
with the entity produced by such merger or acquisition."
Whiting Milk took over White Brothers' five plants, the
employees of four of which had been represented by the
same union representing Whiting's employees, and, pur-
suant to the seniority provision above cited, seniority
based on experience with White was accorded to em-
ployees from the four union-represented plants and de-
nied those from the fifth. The Board, affirming the Trial
Examiner, found both the seniority clause and its applica-
tion to be violative of the Act. I believe that the instant
situation is governed by that Decision. 12
Upon the entire record and on what I am convinced is
a fair preponderance of the credible evidence, I conclude
and find that Local 480, in entering into an agreement
with Potter to place Wall at the bottom of Potter's Nash-
ville terminal seniority list, was motivated by the fact that
Wall, theretofore, had not been represented by a union;
and that, therefore, it restrained and coerced employees
in the exercise of their right not to be represented by a
labor organization in violation of Section 8(b)(l)(A) of the
Act.' 3
Upon the foregoing factual findings and conclusions, I
come to the following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Potter is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3. By causing Potter to place Hilton D. Wall at the
bottom of the employees' seniority list at Potter's Nash-
ville, Tennessee, terminal, Respondent restrained and
coerced employees in the exercise of the rights guaran-
teed them in Section 7 of the Act, thereby engaging in un-
fair labor practices within the meaning of Section
8(b)(I)(A).
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
12 In N L R B v Whiting Milk Corp, noted supra, the Court of Ap-
peals for the First Circuit set aside the Board's Order The court reasoned
that , no seniority rights having vested in White's nonunion employees,
they possessed no seniority prior to their takeover by Whiting, having
brought nothing to their new jobs, they were deprived of nothing It seems
to me that the answer to this rationale - as explicated in the dissenting
opinion in the Whiting case -Its that the real question is not what one has
brought to a new job, but what one is given (or not given ) to start the new
job with , and the motivation behind, or natural result of , the giving (or
withholding ) At any rate , I am constrained to follow Board precedents in
my disposition of cases (Also see JAM, Lodges 727 and 758 (Menasco
Manufacturing Co ), 123 NLRB 627, enfd in relevant respects 279 F 2d
761 (C.A 9), cert denied 364 U S 890, but cf Central States Petroleum
Union, Local 115 (Standard Oil Co ), 127 NLRB 223 )
I I I n view of my express finding that Local 480 was motivated by union
considerations in its conduct , it perhaps is unnecessary to deal with the
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain af-
firmative action in order to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
I issue the following:
RECOMMENDED ORDER
Teamsters Freight Local No. 480, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Causing Potter Freight Lines, Inc., to deprive Hil-
ton D. Wall of seniority rights based upon his last em-
ployment prior to that with Potter.
(b) In any like manner restraining or coercing em-
ployees of Potter in the exercise of their right to self-or-
ganization to form labor organizations, to join or assist
any labor organization, to bargain collectively through
representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any
and all 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.
2. Take the following affirmative action which I find
will effectuate the purposes of the Act:
(a) Notify Potter and Wall, in writing, that it has no ob-
jection to Wall's being accorded seniority rights based
upon his last employment prior to that with Potter.
(b) Post at conspicuous places at its office in Nash-
ville, Tennessee, where notices to members and/or regis-
trants for employment are customarily posted, copies of
the attached notice marked "Appendix." 14 Copies of
such notice, to be furnished by the Regional Director for
Region 26, after being duly signed by an authorized
representative of Local 480, shall be posted immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter. Reasonable steps shall be taken
by Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Sign and mail copies of said notice to the Regional
Director for Region 26, for transmission to and for post-
ing by Potter, if willing, at places where notices to em-
ployees are customarily posted.
General Counsel's implicit argument that, at any rate, Local 480, by fail-
ing to accord equal treatment among its constituents , was not fairly
representing them (See Miranda Fuel Company, 140 NLRB 181, en-
forcement denied 326 F 2d 172 (C A 2), independent Metal Workers
Union, Local No I (Hughes Tool Co ), 147 NLRB 1573) But let me say
here , against the possibility of a remand, that, if Local 480 were dis-
criminating only on the basis of " vested" versus " nonvested" rights, I
would not regard the discrimination as being based on arbitrary , invidious,
or irrelevant considerations
14 in the event that this Recommended Order is 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 is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
TEAMSTERS FREIGHT LOCAL NO. 480 925
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.15
'S In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 26 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
of collective bargaining or other mutual aid or protec-
tion; or to refrain from any such activities (except to
the extent that the right to refrain is limited by the
lawful enforcement of a lawful union-security
requirement).
WE have notified Potter Freight that we have no
objection to according seniority rights to Hilton D.
Wall based upon his last employment prior to that
with Potter Freight.
APPENDIX
NOTICE TO ALL MEMBERS OF TEAMSTERS FREIGHT
LOCAL NO. 480, AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA AND TO
EMPLOYEES OF POTTER FREIGHT LINES, INC.
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT deprive new employees of seniority
status merely because they have not been
represented by a union in the past.
WE WILL NOT to any like manner restrain or
coerce employees of Potter Freight Lines, Inc., in
the exercise of their rights to organize; to form, join,
or assist a labor organization; to bargain collectively
through a bargaining agent chosen by themselves; to
engage in other concerted activities for the purposes
TEAMSTERS FREIGHT
LOCAL No. 480, AF-
FILIATED WITH INTERNA-
TIONAL 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.
If members and employees have any question concern-
ing this notice or compliance with its provisions, they
may communicate directly with the Board's Regional Of-
fice, 746 Federal Office Building, 167 North Main Street,
Memphis, Tennessee 38103, Telephone 534-3161.