Teamsters Local 439

National Labor Relations Board - Board Decisions

Sep 13, 1968

172 N.L.R.B. 2041 (N.L.R.B. 1968)

TEAMSTERS, LOCAL 439
General Teamsters Local 439, International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America (Los An-
geles-Seattle Motor Express , Inc.) and Lyle C.
Corey. Case 20-CB-1758
September 13, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On July 5, 1968, Trial Examiner Martin S.
Bennett issued his Decision in the above -entitled
proceeding , finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner 's Deci-
sion . Thereafter , the Respondent filed exceptions
and a supporting brief , and the General Counsel
filed a brief.
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
briefs , and the entire record in this case, and
hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner.
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 , as modified
herein , and hereby orders that the Respondent,
General Teamsters Local 439, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America , Stockton,
California , its officers , agents, and representatives,
shall take the action set forth in the Trial Ex-
aminer 's Recommended Order , as so modified:
1. Substitute the following for paragraph 2(a) of
the Trial Examiner 's Recommended Order:
(a) Notify Los Angeles-Seattle Motor Express,
Inc., and Lyle C. Corey , in writing forthwith that it
has no objections to the employment of Lyle C.
Corey in his former or substantially equivalent posi-
172 NLRB No. 231
2041
tion with seniority and other rights and privileges
dating from October 30, 1967.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter
was heard at Stockton, California, on April 18,
1968. The complaint, issued April 18, 1968, and
based upon a charge filed November 3, 1967, by
Lyle C. Corey, an individual, alleges that Respon-
dent Union, General Teamsters Local 439, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, had en-
gaged in unfair labor practices within the meaning
of Section 8(b)(2) and 8(b)(1)(A) of the Act. A
brief has been submitted by the General Counsel.'
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Los Angeles-Seattle Motor Express, Inc., herein
called LASME, is a Washington corporation. It
maintains its principal office in Seattle , Washing-
ton, and other offices in the States of Washington,
Oregon , and California , and is engaged in the in-
terstate trucking and transportation of goods.
LASME annually receives revenues in excess of
$50,000 for the transportation of merchandise
across state lines. I find that the operations of
LASME affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
Il. THE LABOR ORGANIZATION INVOLVED
General Teamsters Local 439, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue; Background
The complaint alleges that Respondent at-
tempted to cause and did cause LASME to refuse
to hire Lyle C. Corey on October 30, 1967,
because of his lack of membership in Respondent
Union.
LASME and Respondent Union are covered by a
collective bargaining agreement effective from
April 1, 1967, through March 1, 1970. This agree-
ment contains the customary union security lan-
' A motion by the General Counsel to correct certain errors in the trans-
cript is hereby granted and the pleading is received in evidence as General
Counsel's Exhibit No 8
354-126 O-LT - 73 - pt.2 - 57
2042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guage requiring present employees who are union
members to maintain their membership and giving
all others 31 days to join. There is no hiring hall
language, although it provides in Art. 3, Sec. 1(c),
as follows:
When the Employer needs additional men he
shall give the Local Union equal opportunity
with all other sources to provide suitable appli-
cants, but the Employer shall not be required
to hire those referred by the Local Union.
Respondent Union admits that Secretary-Treas-
urer Arthur Hardy and Business Agents Frank
O'Riley and Robert Plumer are its agents. None of
these testified herein and the findings below are
based upon the credited testimony of Meredith
Blundell, manager of the Stockton Terminal and
also district manager for the area between Merced
and Redding, California, and Leo Boster, at the
time director of line operations and labor relations
for LASME in Seattle and now vice president of
this concern
Pursuant to the provisions in the contract,
LASME requested a "change of operations" hear-
ing and this was duly held on August 16, 1967.
Among other matters, they agreed to eliminate cer-
tain positions in Seattle, Washington, and to
establish five new positions in Stockton. Displaced
Seattle personnel were to have first opportunity at
these five positions. Any posts not so filled were to
be filled pursuant to the hiring provisions cited
above. The attempts of LASME to put Corey to
work in Stockton led to the instant dispute.
B. Sequence of Events
Around the first of October, Terminal Manager
Blundell advised Business Agent O'Riley that he
would be needing "a couple of good men" for the
over-the-road long distance division.2
On October 23, 1967, LASME prepared and sent
to Blundell from its Seattle office a list containing
the names of drivers to be employed at Stockton.
This included three men being transferred to
Stockton pursuant to the change of operations deci-
sion , plus that of a fourth, Lyle C. Corey.
Corey was a member of a sister local at Redding,
California, had been laid off by another employer,
and had applied for work with LASME. He was
duly hired and had been told late in October to re-
port to Stockton on October 30, the thought being
that he would take out a run on October 31.
On the morning of October 24, Bludell met with
Business Agents Plumer and O'Riley and displayed
the Stockton seniority list with its list of drivers.
Plumer asked who Corey was. Bludell replied that
Corey had been referred to the Seattle office, had
been cleared by LASME after investigation, "and
was qualified for work." Neither business agent
made any response and Blundell promptly posted
this seniority list on the bulletin board. I find that
on this occasion, as well as earlier that month,
LASME complied with Art. 3, Sec. 1(c), of the
contract.
On October 30, the various drivers bid on runs in
accordance with their seniority with Plumer and
O'Riley present. Corey, due to his low seniority,
was apparently the last scheduled to bid. When his
turn came, Plumer and O'Riley told Bludell that
Corey "couldn't bid in that he hadn't cleared with
[Local] 439 and didn't meet with their approval as
to putting him to work."
Blundell immediately telephoned to Leo Boster
in Seattle and turned the telephone over to Plumer.
Plumer told Boster that LASME could not use
Corey and that "they were not allowing him to bid
on the run, that he was unacceptable, that they
wanted a [Local] 439 man on that job, and that we
were going to have problems if we insisted on in
using him."
Boster told Plumer that LASME had committed
itself to Corey, as it had earlier that month, that he
had been instructed to report for work to bid on a
job or be assigned to a run, and that "he was going
to bid the run and he was going out in his proper
position." Plumer replied that they were in dis-
agreement, that he would take it up with Hardy and
that Hardy would contact Boster. Boster then in-
structed Blundell to proceed with the bidding and
to have Corey stand by as Boster expected to hear
from Hardy.
At 5:30 p.m. that day, not having heard further in
the matter, Blundell permitted Corey to bid on a
run and Corey did so. I find that at that moment he
was assigned by LASME to Run 53, on which he
had duly bid, and was due to take it out at mid-
night, some 6-1/2 hours later.
At 7:30 p.m. Hardy telephoned Blundell at his
home and asked who was taking out Run 53. Blun-
dell replied that Corey had been assigned and was
leaving at midnight. Hardy responded, "If Corey
goes out on that run, I will tie up your terminal at
midnight." He also stated that "Corey didn't belong
to [Local] 439, therefore, he couldn't take the run
out." I find that this constituted a threat to strike
the terminal if Corey took out the run.
Blundell suggested that Hardy contact Boster in
Seattle. Hardy demurred and proposed that Boster
call him. Blundell immediately telephoned Boster
and filled him in on this development. Boster
telephoned Hardy, who asked, "What about this
guy Corey?" Boster responded that he had been
hired and that LASME intended to use him. Hardy
replied " . . . if you don't put a [Local] 439 man on
that schedule and you insist on using Corey, we are
going to close that terminal down." Boster re-
minded Hardy that this was a risky maneuver
' As contrasted with drivers who did local work within a 50 mile radius
Business Agent Plumer serviced the long - line group and O'Riley handled
the local group
TEAMSTERS , LOCAL 439
because the contract did not contain a closed shop
clause. Hardy was adamant, stating that " . . . we
are going to have a [Local] 439 man on that run,"
that he had men available and that LASME would
not be permitted to bring in outsiders.
Following this conversation, Boster concluded
that if LASME used Corey on this run, Respondent
Union would shut down its Stockton terminal as
threatened. He telephoned Blundell, instructed him
not to use Corey, and told him to "put a [Local]
439 man on the run." Blundell immediately con-
tacted Corey and advised him of this turn of events,
telling him that he would not work that night.
Blundell was not able to use any of his local per-
sonnel that night because they required an 8-hour
rest period pursuant to the rules and regulations of
the Interstate Commerce Commission. He therefore
telephoned the LASME terminal in Oakland,
California, and arranged for a driver and tractor
from that city to come to Stockton and handle the
run; this had been done in the past. There was,
however, a tractor in Stockton that Corey would
have used that night but for the intervention by
Respondent.
Hardy and Plumer appeared at the terminal later
that evening and Blundell explained what he had
arranged. Hardy voiced some objection to this
procedure, but Blundell pointed to the lateness of
the hour and explained that he had no alternative.
When the run was made again 2 days later, a
local man , Abel, was assigned to it for two trips. He
was a local driver who on occasion would fill in on
division or long-line runs. Thereafter, it was as-
signed permanently to one Allee, a former em-
ployee of LASME. The record discloses that as
recently as October 27 Business Agent O'Riley had
sought to have LASME rehire Allee. On that occa-
sion , Blundell had been reluctant to rehire him for
division work because of past deficiencies on his
part but did promise to consider him for local work.
Corey did not take out a run for LASME as
scheduled and has not otherwise worked for it, so
far as this record indicates.
C. Conclusions
It is well established that a labor organization vio-
lates Section 8(b)(2) and (1)(A) when it attempts
to cause or causes an employer to discriminate
against an employee because of his nonmembership
in a labor organization , absent a case of noncom-
pliance with a union-security clause. And here, the
latter problem is not presented.
Nor is this a case where an employer has hired an
employee in violation of contract language provid-
ing for any exclusive hiring hall or referral system
administered by the labor organization. Indeed, the
instant contract requires only that Respondent
Union be given equal opportunity to provide suita-
ble applicants and states that the Employer is not
obligated to hire these referrals.
2043
To sum up, Respondent Union was on notice
during the month of October that LASME needed
help and was specifically advised on October 24
that LASME intended to place Corey in one of the
newly created positions at the Stockton terminal.
No objection was voiced on that occasion but, on
the morning of October 30, Business Agents
Plumer and O'Riley informed Terminal Manager
Blundell that Corey would not be permitted to bid
for a job because he had not "cleared with"
Respondent and did not meet with its approval.
This was underlined by Plumer in his conversation
with Boster later that day when he said that
Respondent wanted one of its members on the job
and that Corey's employment would cause
problems for LASME.
That afternoon LASME did take Corey's bid and
instructed him to report for work at midnight.
Thereafter, Secretary-Treasurer Hardy told Blun-
dell that if Corey took out his assigned run the ter-
minal would be tied up at midnight, a remark I
equate with a threat to strike. Hardy repeated this
threat to Boster, stating that if LASME used Corey
rather than a member of Respondent Union,
Respondent Union would " close that terminal
down." While Respondent has drawn attention to
its constitution , claiming that this requires it to ac-
cept Corey for transfer from its Redding, Califor-
nia, sister local, and also to certain no-strike lan-
guage , this is not relevant . The simple answer is
that Respondent wanted one of its members to get
the job rather than a member of this sister local and
threatened to strike the terminal if its demands
were not met.
Having been threatened with a strike if Corey
took out the run, Boster decided that Respondent
meant precisely what it said and, in reliance upon
this threat, countermanded its decision to employ
Corey. I find that Respondent Union attempted to
cause and did cause the discharge of Corey for dis-
criminatory reasons forbidden under the Act,
namely, his nonmembership in Respondent and that
it has thereby engaged in unfair labor practices
within the meaning of Section 8(b)(2) and (l)(A)
of the Act. N.L.R.B. v. Laborers' Local 300 (Desert
Pipeline Construction Co.), 67 LRRM 2879 (C.A.
9).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Union set forth in
Section III, and occurring in connection with the
operations of the employer described in Section I,
above, have a close, intimate and substantial rela-
tion to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow thereof.
2044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent Union has engaged
in unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act.
It has been found that Respondent Union at-
tempted to cause and did cause the employer to
discharge Lyle C. Corey because of his nonmem-
bership in Respondent Union. I shall therefore
recommend that Respondent Union forthwith ad-
vise the Employer in writing, with a copy to Corey,
that it has no objections to the employment of
Corey in the position for which he was hired, or in
a substantially equivalent position, without preju-
dice to seniority or other rights and privileges he
would have acquired absent the discriminations
against him. I shall further recommend that
Respondent Union make him whole for any loss of
pay suffered by reason of his discharge. Said loss of
pay, based upon earnings he normally would have
earned from October 30, 1967, until 5 days after
receipt of this letter by the Employer, shall be com-
puted on a quarterly basis in the manner
established by the Board in F. W. Woolworth Co.,
90 NLRB 289. See N.L.R.B. v. Seven-Up Bottling
Co., 344 U.S. 344. Interest thereon at the rate of 6
percent per annum shall be added, as provided in
Isis Plumbing & Heating Co., 138 NLRB 716.
On the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. General Teamsters Local 439, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
2. Los Angeles-Seattle Motor Express , Inc., is an
employer whose operations affect commerce within
the meaning of Section 2(6) and (7) of the Act.
3. By attempting to cause and by causing Los
Angeles-Seattle Motor Express, Inc., to dis-
criminate against Lyle C. Corey, Respondent Union
has engaged in unfair labor practices within the
meaning of Section 8(b)(2) of the Act.
4. By the foregoing conduct, thereby restraining
and coercing employees in the exercise of the rights
guaranteed by Section 7 of the Act, Respondent
Union has engaged in unfair labor practices within
the meaning of Section 8(b)(1 )(A) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
' In the event 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
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, it is recommended that
Respondent Union, General Teamsters Local 439,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America,
Stockton, California, its officers, representatives,
and agents, shall:
1. Cease and desist from:
(a) Attempting to cause or causing Los Angeles-
Seattle Motor Express, Inc., to discharge em-
ployees, or discriminate in any other manner in re-
gard to hire or tenure of employment, or any term
or condition thereof, except as authorized by Sec-
tion 8(a)(3) of the Act.
(b) In any like or related manner restraining or
coercing employees of Los Angeles-Seattle Motor
Express, Inc., in the exercise of the right to refrain
from engaging in the specified activities protected
under Section 7 of the Act, 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 is
deemed necessary to effectuate the policies of the
Act:
(a) Notify Los Angeles-Seattle Motor Express,
Inc., in writing forthwith that it has no objections to
its employment of Lyle C. Corey in his former or
substantially equivalent position with seniority and
other rights and privileges dating from October 30,
1967.
(b) Make whole Lyle C. Corey for any loss of
pay suffered by reason of the discrimination against
him, in the manner provided above in the section
entitled "The Remedy."
(c) Post at its business office and at the Stockton
terminal of Los Angeles-Seattle Motor Express,
Inc., the latter willing, copies of the notice attached
hereto and marked "Appendix."3 Copies of said
notice on forms provided by the Regional Director
for Region 20, shall, after being duly signed by an
agent of Respondent Union, be posted immediately
upon receipt thereof and maintained for a period of
20 consecutive days thereafter in conspicuous
places, including all places where notices to mem-
bers and 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 Region 20,
in writing, within 20 days of the date of receipt of
this Decision what steps it has taken to comply
herewith.'
and Order "
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 20, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
TEAMSTERS, LOCAL 439 2045
Notice to All Members of this Union and employees
of Los Angeles-Seattle Motor Express, Inc.
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify you that:
WE WILL NOT attempt to cause Los Angeles-
Seattle Motor Express, Inc., to discharge em-
ployees, or discriminate in any other manner in
regard to hire or tenure of employment, or any
term or condition thereof, except as authorized
by Section 8(a)(3) of the National Labor Rela-
tions Act.
WE HAVE NO objection to the employment of
Lyle C. Corey by Los Angeles-Seattle Motor
Express, Inc., in his former or substantially
equivalent position, with seniority and other
rights and privileges dating from October 30,
1967.
WE WILL make whole Lyle C. Corey for any
loss of pay by reason of the discrimination
against him.
WE WILL NOT in any like or related manner
restrain or coerce employees of Los Angeles-
Seattle Motor Express, Inc., in the exercise of
the right to refrain from engaging in the
specified activities protected under Section 7
of the Act, except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment, as authorized in Section
8(a)(3) of the National Labor Relations Act.
GENERAL TEAMSTERS
LOCAL 439,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN &
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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, 450 Golden Gate Avenue , Box 36047, San
Francisco , California 94102, Telephone 556-0335.