Teamsters, Local 238

National Labor Relations Board - Board Decisions

Jun 8, 1971

190 N.L.R.B. 783 (N.L.R.B. 1971)

TEAMSTERS , LOCAL 238
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Local 238
and Elmer A . Fehrle. Case 18-CC-337
June 8, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On February 18, 1971, Trial Examiner Robert Cohn
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending 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 Trial Examiner's Decision.
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 Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, and the entire record
in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the Board adopts as its Order
the recommended Order of the Trial Examiner as
modified below and hereby orders that the Respondent,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 238, its
officers, agents, and representatives, shall take the ac-
tion set forth in the Trial Examiner's recommended
Order, as so modified:
1. Delete from the Trial Examiner's Conclusions of
Law, paragraph 3 thereof, the firm name "Bechtel Cor-
poration" and substitute "Coonrod Construction Com-
pany."
2. Delete from paragraph 1 of the recommended
Order the firm name "Bechtel Corporation."
3. Substitute the attached notice for the Trial Ex-
aminer's notice.
APPENDIX
783
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any in-
dividuals employed by Coonrod Construction
Company, or any other person engaged in com-
merce or in any industry affecting commerce, to
engage in a strike or a refusal in the course of his
employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods,
articles, materials, or commodities, or to perform
any service where an object thereof is forcing or
requiring Elmer A. Fehrle, d/b/a/ Fehrle Truck
Line, to recognize or bargain with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local 238, as
representative of his employees unless such labor
organization has been certified as the representa-
tive of such employees under the provisions of
Section 9 of the National Labor Relations Act, as
amended.
INTERNATIONAL
BROTHERHOOD
OF TEAMSTERS,
CHAUFFEURS,
WAREHOUSEMEN
AND HELPERS
OF AMERICA, LOCAL
238
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 316 Federal Building, 110 South Fourth Street,
Minneapolis, Minnesota 55401, Telephone 612-725-
2611.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner : Upon an original charge
filed August 3, 1970,' by Elmer A. Fehrle, against Interna-
' All dates hereinafter refer to the calendar year 1970 unless otherwise
indicated
190 NLRB No. 144
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
ment and Helpers of America, Local 238 (herein the Re-
spondent or Union), the General Counsel of the National
Labor Relations Board, through the Regional Director for
Region 18, issued his complaint and notice of hearing dated
September 16. The complaint alleges, in essence, that the
Respondent violated Section 8(b)(4)(i)(B) of the National La-
bor Relations Act, as amended (herein the Act), by inducing
and encouraging employees of Bechtel Corporation to refuse
to work or perform services because Fehrle did not recognize
and bargain with the Respondent. By its duly filed answer,
Respondent admitted certain allegations in the complaint but
denied that it had committed any unfair labor practices.
The proceeding was held before me in Cedar Rapids, Iowa,
on November 4, with all parties represented. Helpful post-
hearing briefs have been filed by counsel for the General
Counsel and counsel for the Respondent which have been
duly considered.
Upon the entire record in this case, and from my observa-
tion of the demeanor of the witnesses while testifying, I make
the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE CHARGING PARTY
Uncontradicted and credited testimony of Elmer Fehrle
reflects that at all times material he has been the owner of a
small truckline with its principal offices in Cedar Rapids,
Iowa. He has held interstate rights granted by the Interstate
Commerce Commission since June 1969, and his annual
gross revenues in calendar year 1969 were in an amount
approximating $87,000. Of this amount, only 2 or 3 percent
was derived from intrastate business. Inasmuch as the Board
has decided that it will assert jurisdiction over all freight
transportation enterprises, engaged in the furnishing of inter-
state transportation services, which derive at least $50,000
gross revenues per annum from such operations, I will recom-
mend that the Board assert jurisdiction over the Employer in
this case.'
II THE LABOR ORGANIZATION INVOLVED
Fehrle had been a member of the Respondent, but it was
determined at this meeting that Fehrle was, in fact, an em-
ployer and consequently his membership in the Respondent
was terminated. Immediately following the meeting, Herman
Casten, a business representative and an admitted agent of the
Respondent took Fehrle into his office and there discussed
with him the possibility of Fehrle's signing a contract with the
Respondent wherein Fehrle would recognize the Respondent
as collective-bargaining representative of his drivers (which
numbered 7). Fehrle demurred either for the reason that, as
he testified, he did not think he could talk any of the men into
joining the Respondent because of their past experiences or,
as Casten testified, because Fehrle considered that the in-
dividual drivers might be independent contractors rather
than employees. At the close of the conversation, Casten
declared that Fehrle would change his mind about signing a
contract when he became "tired of coming events."'
On July 23, one of Fehrle's trucks trip-leased to CRST, but
driven by Herbert William Coates, one of Fehrle's employees,
entered the Duane Arnold Energy Center jobsite near Palo,
Iowa. Coates received instructions from Bechtel employee
William McCool as to where to "spot" the truck for unload-
ing, McCool accompanying Coates in the cab of the truck.
About this time, another Bechtel Corporation employee,
James Meeks, drove up in a pickup truck and asked if he
could see Coates' union card. Coates gave him what papers
he had in that regard, and Meeks walked over to a nearby
telephone and called the Respondent's union hall.
A few minutes later Meeks returned to where the truck was
spotted and unloading crane (owned and operated by Coon-
rod Construction Company) was preparing to unload the
steel from the trailer. Meeks said "hold it." When asked by
McCool why the truck could not be unloaded, Meeks re-
sponded that the driver was driving for Fehrle Truck Line
and that they did not recognize Fehrle Truck Line.' The
truck was not unloaded at that time.
Coates proceeded to drive the truck back to a parking lot
and contacted Fehrle. The latter then proceeded to the Re-
spondent's union hall and spoke with agents Schorg and
Smith, accusing them of boycotting him. He was advised that
the truck was not being unloaded because the driver was
The complaint alleges, the answer admits, and I find that
behind in his union dues. Fehrle secured Coates and both of
the Respondent is a labor organization within the meaning of
them returned to the union hall where Smith advised that
Section 2(5) of the Act.
Coates was $47 in arrears.
Within a short time thereafter Respondent's representa-
III THE ALLEGED UNFAIR LABOR PRACTICES
The incident giving rise to the issue in the case occured at
the said Duane Arnold Energy Center jobsite on July 23. On
that day, a truck, owned by Fehrle but leased to Cedar Rapids
Steel Transportation Company (herein CRST) was prevented
from unloading its load of steel reinforcing rods by one James
Meeks, an employee of Bechtel Corporation (the general con-
tractor on the jobsite) whose agency status with the Respond-
ent is in dispute. The essential question to be resolved is
whether the refusal to unload was occasioned by Fehrle's
ownership of the truck or the alleged delinquency of the
truckdriver's union dues.
The story begins in March at an executive board meeting
of the Respondent wherein Fehrle was called in for a deter-
mination of his status as an employer. Prior to this time,
' See H P 0 Service, Inc, 122 NLRB 394 On this issue, I have also
considered that the incident involved herein occurred at the Duane Arnold
Energy Center near Palo, Iowa, wherein the Bechtel Corporation is a general
contractor The Board has asserted jurisdiction over this corporation numer-
ous times in the past See 133 NLRB 1185 and 108 NLRB 823 See also
Sheet Metal Workers International Association , Local Union No. 299 (S M.
Kisner and Sons), 131 NLRB 1196, 1199
tive, Herman Casten, contacted John Wyss of CRST for the
purpose of trying to resolve the dispute. Casten suggested that
the steel be reloaded onto another trailer but Wyss advised
that such a course would be too expensive. Casten then sug-
gested that, if it was not practical to transfer the steel, CRST
Credited testimony of Fehrle
° Credited testimony of Coates and McCool Meeks testified that he "did
not remember" making a statement such as "hold it," and that he merely
told the driver that he was behind in his union dues and also passed that
information on to one of the iron workers who was standing by, preparing
to unload the truck. Meeks was not impressive as a witness, appearing quite
evasive and less than candid in his response to questions It seems particu-
larly incredible that, despite all his conversations with Coates on this occa-
sion, he did not inquire who Coates worked for or who owned the truck,
being assertedly unconcerned on this point Yet, it appears from the tes-
timony of both Coates and McCool that Fehrle's name was painted on the
truck Under all circumstances, I discredit Meeks where his testimony is
contrary to that of other witnesses
' Although the record evidence appears to substantiate the Respondent's
claim that Coates was, in fact, behind in payment of his union dues, I deem
it unnecessary to resolve this particular issue in view of my finding that, even
if such be the fact, there is substantial evidence that an objective of Respond-
ent's conduct was to boycott Fehrle and that the arrearage in Coates' union
dues was pretextual, of which more anon
TEAMSTERS , LOCAL 238
could place one of their tractors underneath the trailer and
deliver it. This procedure was in fact the way the steel was
finally delivered and unloaded, i.e., one of CRST's city driv-
ers drove a CRST tractor attached to the steel-loaded trailer,
on or about August 5.
Analysis and Concluding Findings
In pertinent part, Section 8(b)(4)(i)(B) makes it an unfair
labor practice for a labor organization or its agent
to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an
industry affecting commerce to engage in, a strike or a
refusal in the course of his employment to use, manufac-
ture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to per-
form any services ... where ... an object thereof is
... forcing or requiring any other employer to recognize
or bargain with a labor organization as the representa-
tive of his employees unless such labor organization has
been certified as the representative of such employees
under the provisions of Section 9 ....
It seems abundantly clear that the conduct of Meeks in
announcing to the crane operator to "hold it," as the latter
was preparing to unload the steel, constituted inducement
and encouragement of an individual employed by any person
engaged in commerce or in an industry affecting commerce
to engage in a refusal in the course of his employment to
perform services; and that, in the context of the other evi-
dence relating to the Respondent's dispute with Fehrle con-
cerning the latter's refusal to recognize Respondent as the
collective-bargaining agent of his employees, such conduct
was undertaken with an object of forcing or requiring Fehrle
to do just that. In that connection, I note that in addition to
the direct evidence of Meeks' statements at the time (i.e., that
the Union would not allow the steel to be unloaded because
a Fehrle Truck Line driver was hauling it), in subsequent
conversations between Union Representative Casten and
CRST's Wyss, the former never suggested as an alternative
procedure to unloading the steel that one of Fehrle's drivers
who was in good standing with the Union be allowed to drive
a Fehrle tractor to unload the steel.
Respondent contends that the General Counsel did not
prove that Meeks was a person for whose conduct Respond-
ent could be held responsible. I disagree. The evidence shows
that prior to the latter part of May Meeks had been employed
by Respondent for almost a year as a business agent and, as
such, sat in on the executive board meeting, above described,
wherein Fehrle's membership in the Respondent was ter-
minated. The record does not disclose the circumstances un-
der which Meeks terminated his position as a business repre-
sentative except that he did commence his employment with
the Bechtel Corporation in May. Meeks retained his member-
ship in the Respondent, and although he did not technically
occupy the position of job steward of the Respondent at the
Duane Arnold jobsite (Leurkins occupied this position),
Meeks did perform functions indigenous to that position.
Thus he conceded that he checks any truck that comes into
the jobsite for the union identification of its driver and, as
indicated by the circumstances of the incident described
herein, he is readily given confidential information respecting
drivers' membership status in the Respondent. Accordingly,
it appears that over a period of time Respondent has held
Meeks out to have authority in this regard as evidenced, in
part, by the fact that the other employees on the jobsite,
including the crane operator and the iron workers, did not
question Meeks' direction. Moreover, it is undisputed that
Respondent's officials, after learning of the incident,
confirmed and ratified Meeks' conduct. Accordingly, I find
785
that at all times material Meeks was an agent of Respondent
within the meaning of Section 2(13) of the Act.'
Accordingly, I find and conclude on the basis on all of the
foregoing that, by the conduct of its agent on July 23 above
described, the Respondent induced and encouraged em-
ployees of other employers to refuse to perform services in the
course of their employment with an object of forcing and
requiring Fehrle to recognize and bargain with Respondent,
in violation of Section 8(b)(4)(i)(B) of the act, and I will
recommend an appropriate remedy.'
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above, occurring
in connection with the interstate operations of the Charging
Party, have a close, intimate, and substantial relationship 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.
V THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices proscribed by Section 8(b)(4)(i)(B) of the Act,
I shall recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Elmer A. Fehrle, d/b/a Fehrle Truck Line, is an em-
ployer engaged in commerce or in an industry affecting com-
merce within the meaning of Section 2(6) and (7) and Section
8(b)(4) of the Act.
2. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By inducing and encouraging the employees of Bechtel
Corporation, and employees of other employers, to refuse in
the course of their employment to perform services for their
respective employers, with an object of forcing or requiring
Fehrle to recognize or bargain with Respondent as the repre-
sentative of his employees although Respondent has not been
certified as the representative of such employees under Sec-
tion 9 of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(b)(4)(i)(B) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended!
In this connection, I have considered as relevant, but not controlling,
the fact, as disclosed by the record, that Meeks is the son of Harry Wilford,
the secretary-treasurer of Respondent The two cases cited by Respondent
in its brief (Taxi-Drivers' Union (Morse Taxi and Baggage Transfer, Inc,
174 NLRB No. 1, and International Brotherhood of Electrical Workers,
Local Union No. 43, AFL-CIO (Executone of Syracuse, Inc), 172 NLRB
No. 79), are factually distinguishable from the instant case
7 I disagree with Respondent that the one incident of violation here is so
de minimis as to not warrant the issuance of a remedial order Cf Grun wald-
Marx, Inc., 127 NLRB 476, 477, Central Bio-Analytical Laboratories, Inc.,
177 NLRB No 9
In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions and order, and all objections thereto shall
(Cont)
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Respondent, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
238, its officers, agents, and representatives, shall:
1. Cease and desist from engaging in or inducing or en-
couraging any individual employed by Bechtel Corporation,
Coonrod Construction Company, or by any other person
engaged in commerce or in an industry affecting commerce,
to engage in a strike or a refusal in the course of his employ-
ment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or com-
modities, or to perform any service where an object thereof
is to force or require Elmer A. Fehrle, doing business as
Fehrle Truck Line, to recognize or bargain with Respondent
as the representative of his employees unless Respondent has
been certified as the representative of such employees under
the provisions of Section 9 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Post at the Respondent's business offices and meeting
halls, copies of the attached notice marked "Appendix."9
Copies of said notice, on forms provided by the Regional
Director for Region 18, after being duly signed by the Re-
spondent's authorized representative, shall be posted by the
Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by it to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Sign and mail sufficient copies of said notice to the
Regional Director for Region 18 for posting by Elmer A
Fehrle doing business as Fehrly Truck Line, and the employ-
ers and persons named above in paragraph 1, at all locations
where notices to their respective employees are customarily
posted, if they are willing to do so.
(c) Notify the Regional Director for Region 18, in wasting,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.10
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD "
be deemed waived for all purposes 1° In the event that this recommended Order is adopted by the Board
' In the event that the Board's Order is enforced by a Judgment of a after exceptions have been filed, this provision shall be modified to read
United States Court of Appeals, the words in the notice reading "POSTED "Notify the Regional Director for Region 18, in writing, within 20 days from
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" the date of this Order, what steps the Respondent has taken to comply
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF herewith "
* U 5 GOVERNMENT PRINTING OFFICE 1973 0- 469-945