The Youngstown Cartage Co.

National Labor Relations Board - Board Decisions

Mar 10, 1964

146 N.L.R.B. 305 (N.L.R.B. 1964)

THE YOUNGSTOWN CARTAGE COMPANY 305
Publisher to deliver the Sunday newspaper in only one section, but several car-
riers have continued a past practice of delivering the Sunday paper in separate
sections without any action being taken by the Publisher. The carrier can terminate
his relationship with the Publisher with no notice, and the record indicates that the
Publisher has a policy of giving 30 days' notice before terminating a relationship.
In Lindsay Newspapers, Inc., 130 NLRB 680, the Board restated its "right to
control" test for determining the status of an individual as an employee or an
independent contractor:
Where the person for whom the services are performed retains the right to
control the manner and means by which the result is to be accomplished,
the relationship is one of employment; while, on the other hand, where control
is reserved only as to the result sought, the relationship is that of an independent
contractor.
The Board has used this test many times in determining the status of newspaper
carriers. See A. S. Abell' Company, 137 NLRB 238; Lindsay Newspapers, Inc.,
supra; and The Kansas City Star Company, 76 NLRB 384. The Board in deter-
mining the status of the newspaper carriers in these cases has weighed each factor
present in the cases against its right-to-control test. All the factors involved in
those cases are present in the instant case . In those cases in which the Board
found the carriers to be employees, they also found a considerable degree of discre-
tion and control over the actual operation of the distribution procedure retained
by the publisher. Here, the Publisher's only retention of control is in the area of the
initial establishment of the relationship between itself and the carrier and in the
determination of the contents of its delivered newspaper, and the frequency of its
delivery. The method of delivery is established by the carrier, and all matters
incident thereto with which the Publisher comes in contact are immediately relayed
to the carrier without comment or recommendation.
As the Petitioner seeks to represent only individuals who I find are independent
contractors within the meaning of Section 2(3) of the Act, the petition must be
dismissed.
[The Regional Director dismissed the petition.]
The Youngstown Cartage Company and Howard Smith and
Peter Dohollow and Michael Boano and Eugene Theodore
Local 377, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Howard Smith
and Peter Dohollow. Cases Nos. 8-CA-2622, 8-CA-2837, 8-CA-
2979-1, 8-CA-93979-2, 8-CA-3092, 8-CB-5893, and 8-CB-628.
March 10, 1964
DECISION AND ORDER
On October 8,1963, Trial Examiner George A. Downing issued his
Decision in the above-entitled proceeding, finding that Respondent
Youngstown 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. He also found that Respondent Youngstown
and Respondent Local 377 had not engaged in certain other unfair
labor practices alleged in the complaint and recommended dismissal
146 NLRB No. 34.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to them. Thereafter, Respondent Youngstown, the Charging Par-
ties, and the General Counsel filed exceptions and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
'Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Fanning, and
Brown].
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 entire
record in these cases, including the Trial Examiner's Decision, the
• exceptions, and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner subject to the additions
and modifications made below.
1. We agree with the Trial Examiner that by threatening employees
with reprisals for filing complaints against Youngstown with the
Department of Justice, and for filing grievances under their contract
and unfair labor practice charges before the Board, and for giving
testimony in a proceeding against Youngstown's president under
Section 302 of the Act, Respondent Youngstown interfered with,
restrained, and coerced employees in the exercise of their statutory
rights, thereby violating Section 8 (a) (1) of the Act.
However, we are of the opinion that the record does not support
the Trial Examiner's further findings that Respondent Youngstown
violated Section 8(a) (1) by refusing to process employee Smith's
grievance, and by the conduct of its vice president, William Wolff,
Jr., in attempting to forcibly eject employees Boano and Theodore at
the close of a grievance meeting.
As to the alleged assault, the undisputed evidence simply shows that
Wolff attempted to eject Theodore and Boano after their refusal to
leave his office following a "heated grievance session." The Trial
Examiner found that Wolff was justified in terminating the grievance
meeting, but apparently premised his 8(a) (1) finding upon his fur-
ther conclusion that the forcible ejection abridged the employees'
right to present grievances. We,disagree.. There is no basis in the
record for concluding that Wolff's conduct was motivated by any
consideration other than the employees' refusal to leave his office,
nor can it be said that the assaults were in furtherance of an anti-
1 The Charging Parties tiled a motion to dismiss Youngstown 's exceptions and brief as
not having been filed in accordance with Section 102.46 (j) of the Board's Rules and Regu-
lations, as amended , effective September 3, 1963, requiring any brief exceeding 20 pages
to include a subject index with page references and an alphabetical table of cases and
authorities cited . The Charging Parties also assert that Respondent has not presented
its exceptions in a clear and concise manner . While the exceptions and brief are not in
precise conformance with our requirements, they are in substantial compliance, and in
the circumstances, including the absence of an allegation of prejudice to the Charging
Parties, we deny the motion to dismiss.
THE YOUNGSTOWN CARTAGE COMPANY 307'
union design. "Accordingly, we do not adopt the Trial Examiner's
8 (a) (1) finding in this regard.
As to Youngstown's -refusal to entertain the Smith grievance, the
record shows that Smith, in January 1961, was redomiciled from
Local 377, representing the Employer's drivers employed at Youngs-
town, to Local 299, representing drivers working out of the Em-
ployer's Detroit terminal. Smith voluntarily executed a transfer to,
Local 299 and in April 1961 ceased paying dues to Local 377. He
was discharged in November 1961, and filed grievances with both
locals. The record shows that prior to the discharge and after the
transfer, Smith carried several loads originating in the Detroit area.
Local 377, on presentation of Smith's grievance, was informed that
the Employer would not discuss it because Local 299 was Smith's
exclusive bargaining representative.
The Board has-held that the Act imposes no obligation upon, and
generally precludes, an employer from entertaining a grievance on
behalf of an individual employed in -a bargaining unit other than
that represented by the grieving union? In these circumstances,
the burden was upon the General Counsel to establish by a preponder-
ance of the evidence that Local 377 was and Local 299 was not Smith's
statutory bargaining representative at the time of his discharge. As.
the General Counsel has failed to sustain that burden, we do not
adopt the Trial Examiner's 8(a) (1) finding based upon the Employ-
er's refusal to entertain the Smith grievance.
2. The Trial Examiner also found that Respondent Youngstown
violated Section 8 (a) (1) and (3) of the Act by discharging employees'
Theodore and Boano. He predicated such finding upon evidence
that the discharges were motivated by Respondent's resentment to-
ward Boano and Theodore engendered by their conduct in filing com-
plaints with the Department of Justice, their testimony before the
grand jury and at the trial of William Wolff, Sr., under Section 302
of, the Act, and their filing of earlier grievances and charges 3
However, the Trial Examiner further found that the discharges of
Boano and Theodore were violative of Section 8(a) (4) insofar as
they were also motivated by Boano's and Theodore's having testified-
at a trial under Section 302 of the Act, and by Theodore's having
filed charges with the Board. In considering the 8 (a) (4) allegations,
the Trial Examiner construed this section as prohibiting reprisals
against employees for testifying at a trial under Section 302, but
also ruled that such protection, does not extend to employee testimony,
2 Federal Telephone and Radio Company, etc ., 107 NLRB 649.
3 We agree with and adopt these findings except that we do not rely upon Theodore's
and Boano 's testimony at the trial of William Wolff, Sr., as evidence of discriminatory
motivation , since there is no basis for finding that Theodore and Boano gave such testi-
mony before their discharges. -
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before a grand jury which ultimately returns an indictment under
Section 302. As we are satisfied that the unlawful discharges will
be fully remedied by the portion of our Order based upon our adop-
tion of the Trial Examiner's 8 (a) (1) and (3) findings and his 8 (a) (4)
finding based upon Theodore's filing charges with the Board, we find
it unnecessary to our decision to pass upon the Trial Examiner's con-
clusions concerning the applicability of Section 8(a) (4) to proceed-
ings arising under Section 302 of the Act, including testimony before
a grand jury investigating possible violations of the latter provision.
3. We agree with the Trial Examiner, for the reasons set forth in
his Decision, that employees Dohollow and Smith were discharged
for cause, and not in violation of Section 8(a) (1), (3), and (4) as
alleged in the complaint .4
4. We agree with the Trial Examiner that Local 377 did not violate
Section 8(b) (1) (A) in processing employee Smith's grievance. The
General Counsel excepts to this finding and contends that Local 377
breached the duty of fair representation by acquiescing in the Em-
ployer's view that it was under no duty to entertain Local 377's griev-
' In finding that Dohollow's discharge was on lawful grounds the Trial Examiner re-
solved the unfair labor practice issue on the merits , and did not consider the effect of an
outstanding arbitration award which also sustained the Employer 's action in terminating
this employee. In view of the Board 's general policy of encouraging peaceful methods for
resolving labor disputes through recognition of the results of arbitration , the Trial
Examiner 's failure to honor the award warrants further discussion . This award was
rendered by a joint State committee under the terms of the grievance -arbitration provi-
sions of the Teamsters ' Over-The-Road Motor Freight Agreement . The committee was
composed of equal employer and union representatives but had no impartial public mem-
ber. In this connection , the Board has held that it will not reject an arbitration award
solely on grounds that the arbitration panel did not include an impartial public arbitrator.
Denver-Chicago Trucking Company, Inc., 132 NLRB 1416. However, the Board has also
disregarded the award of such a tribunal because of special circumstances indicating that
the arbitration proceedings failed to comport with the expected standards of impartiality.
See Roadway Express, Inc , 145 NLRB 513. We are satisfied that such special circum-
stances exist here. Prior to the discharge , Dohollow had been associated with a dissident
movement seeking to establish a separate union of steel haulers. As a part of its cam-
paign the steel haulers openly criticized the trucking operators , accusing them of various
bad labor practices . Teamster opposition to this group was evidenced through threats of
Teamster officials against Dohollow and other protagonists of the movement. In the cir-
cumstances , including the absence of an impartial - public member on the committee and the
fact that the record as a whole establishes that the entire arbitration panel may have
been arrayed in common interest against Dohollow, strong doubt exists as to whether the
arbitration proceeding comported with the standards of impartiality we expect to find.
Accordingly we will not honor the award of the committee but will adopt the Trial Ex-
aminer' s findings on the merits that Youngstown did not violate the Act in discharging
Dohollow. Member Fanning concurs in the result , but, in so doing , he relies upon the
reasoning set forth in his separate concurrence in Roadway Express, Inc ., supra.
We note however that the Trial Examiner did give binding effect to an award of this
same joint State committee in connection with wage claims resulting from the discrimina-
tory discharges of Theodore and Boano . In giving effect to these awards , the Trial
Examiner properly concluded that the record did not show that the proceedings were not
fairly and equitably conducted . Unlike the situation in Dohollow 's case, there is-no basis
for finding that employer and union representatives on the committee were arrayed in
interest against Theodore or Boano. Accordingly, and, as we have stated that the mere
absence of an impartial public member will not foreclose our giving effect to an award,
we adopt the conclusion of the Trial Examiner that these awards fully settled the backpay
entitlement of said employees for the period between the discharge and reinstatement.
Denver-Chicago Trucking Company, Inc, supra.
THE YOUNGSTOWN CARTAGE COMPANY 1 309
•ance on behalf of Smith. This position was taken by the Employer
-under an assertion that Smith was a part of the bargaining unit
represented by Local 299. We find no merit in the General Coun-
sel's contention. In the circumstances, to establish a violation it was
necessary for the General Counsel to show that Local 377 was under a
duty to represent Smith. This he has failed to do. Accordingly,
we adopt the Trial Examiner's conclusion that Local 377 did not
-violate Section 8(b) (1) (A) in processing the Smith grievance.
THE REMEDY
Having found that Respondent Youngstown has engaged in un-
fair labor practices in violation of Section 8(a) (1), (3), and (4)
.of the Act, we shall order Respondent to cease and desist therefrom
-and take certain affirmative action necessary to effectuate the policies
.of the Act.
We agree with the Trial Examiner that the usual remedial order
of reinstatement and backpay is unnecessary in Boano's case because
he was reinstated to a substantially equivalent position, and has re-
ceived backpay fully compensating him for earnings lost between
his unlawful discharge and reinstatement.
We disagree with the Trial Examiner that Respondent failed to
reinstate Theodore with full seniority after his unlawful discharge
,on November 16, 1962. The record shows that after Theodore's dis-
charge he was reinstated pursuant to an informal settlement on
December 8, 1962. Following the reinstatement and in March 1963
Theodore voluntarily sold his tractor-trailer and sought to transfer
his owner-operator's seniority to the company-driver list. The Em-
ployer denied this request and treated Theodore as a voluntary quit,
taking the position that under the governing collective-bargaining
agreement (the Steel Addendum) an owner-operator forfeits seniority
by sale of equipment in operable condition. The Trial Examiner
disagreed with Youngstown's interpretation of the contract,5 and
-concluded that because of its refusal to recognize Theodore's seniority,
the earlier reinstatement was not accompanied by full restoration of
seniority 'and the unlawful discharge had not been fully remedied.
The Trial Examiner therefore recommended that Theodore be rein-
stated to such a position as was available for him on or after March 5,
1963, with backpay from the time such position becomes available.
Contrary to the Trial Examiner we find that Theodore's reinstatement
in December 1962 fully complied with Youngstown's statutory duty
to restore the discriminates to his former position without loss of
seniority. We are satisfied that the March incident was unrelated
5As we do not adopt the Trial Examiner's recommended order of reinstatement and
backpay, we do not pass upon his finding that Youngstown improperly treated Theodore
as forfeiting his seniority when the latter voluntarily sold his tractor-trailer.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the unlawful discharge, and a matter to be remedied, if discrimina-
tory, as an independent unfair labor practice. Accordingly, we do
not adopt the Trial Examiner's order of reinstatement and backpay.
However, since the record discloses that Theodore has not in fact
received the backpay due under an earlier arbitration award we shall
order Youngstown, for the reasons, set forth in the Trial Examiner's
Decision, to tender him the amounts due.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations-Board'hereby orders that the Respondent, The Youngstown
Cartage Company, Youngstown, Ohio, its 'officers, agents, successors,
and assigns, shall
1. Cease and desist from :
(a) Threatening employees' with reprisals concerning their par-
ticipation in concerted activities. -
(b) Discharging employees because of their participation in pro-
tected concerted activities.
(c) Discharging employees because they file charges under the Act.
(d) Discouraging membership in or activities on behalf of Local
377, or any other labor organization of its employees, by discharging
any of its employees because of their union membership or activities
or in any other manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment, except to the
extent permitted by Section' 8 (a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclsure Act of 1959.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their, right to self-organization, to
form, join, or assist said Local 377, or any other labor organization, to
bargain collectively through representatives of their own choosing,
or to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action :
(a) Tender to Eugene Theodore the amount of the additional back-
pay awarded to him in the grievance proceeding which followed his
discharge on November 16,1962.
THE YOUNGSTOWN CARTAGE COMPANY 311
(b) Post in its offices at Youngstown, Ohio, copies of the attached
notice marked "Appendix." s Copies of said notice, to be furnished by
the Regional Director for the Eighth Region, shall, after being signed
by Respondent Youngstown's representative, be posted by said Re-
spondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to its employees are customarily posted. Rea-
sonable steps shall be taken by'said Respondent to insure that said
notices are hot altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Eighth Region, in writing,
within 10 days from the date of the receipt of this Decision, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent Youngstown and Respondent Local 377 engaged in
conduct other than that found to be in violation of the Act herein,
be, and it hereby is, dismissed.
6In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order,"„ the words "A
Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 discourage membership in Local 377, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, by dis-
charging employees or in any other manner discriminating in
regard to their hire or tenure of employment or any term or
condition of employment.
WE WILL NOT discharge or otherwise discriminate against em-
ployees because of their participation in protected concerted ac-
tivities or because they file charges or give testimony under the
Act.
WE WILL NOT threaten employees with reprisals concerning
their participation in protected concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist said Local 377, International
Brotherhood of Teamsters,', Chauffeurs, , Warehousemen and
Helpers of America, or any other labor organization, to bargain
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collectively through representatives of their own choosing, or to,
engage in other concerted activities for the purpose of, collective
bargaining or other mutual aid or protection, or to refrain from
any or 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 Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and,Disclosure Act of 1959.
WE WILL: tender to Eugene Theodore the amount of the addi-
tional backpay awarded to him in the grievance proceeding which
followed his discharge.
All our employees are free to become or remain or to refrain from
becoming or remaining members of the above-named or any other
labor organization.
TIIE YOUNGSTOWN CARTAGE COMPANY,
Employer.
Dated---------------- ' By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the-
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio,.
Telephone No. Main 1-4465, if they have any question concerning this.
notice or compliance with its provisions.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
These consolidated proceedings , brought under Section 10 (b) of the National'
Labor Relations Act, as amended ( 61 Stat. 136, 73 Stat . 519), were heard before
Trial Examiner George A . Downing at Youngstown , Ohio , on July 15 through 17,
1963 , pursuant to due notice . The complaint against Respondent Youngstown,
which was issued on May 19 , 1963 , by the General Counsel of the National Labor
Relations Board on charges dated November 14, 1961, June 18 and November 19,
1962, and March 15, 1963 , alleged in substance (as amended) that Respondent
Youngstown engaged in unfair labor practices proscribed by Section 8(a)(1), (3),
and (4) of the Act by various specified acts of interference , restraint, and coercion
(i.e., interrogation , threats of reprisal , infliction of bodily injuries ), and by dis-
charging Howard Smith on November 8, 1961 , Peter Dohollow on April 30, 1962,
and Eugene Theodore and Michael Boano on November 16, 1962 , because Re-
spondent believed they had engaged in certain concerted activities for their mutual
aid or protection and/or because they filed grievances and/or because they filed'
charges and/or gave testimony under the Act.
The complaint against Respondent Local 377, which was based on charges dated'
November 14, 1961 , and June 18 , 1962 , alleged in substance (as amended) that
Respondent Union engaged in unfair labor practices proscribed by Section•
8(b) (1) (A ) by failing fairly and equally to represent employees of Youngstown in
the unit for which Respondent Union was the bargaining representative and by
refusing to process the grievances of Howard Smith and Peter Dohollow, for the
THE YOUNGSTOWN CARTAGE COMPANY 313'
reason that said employees were members of a dissident group who were opposing
Youngstown's attempt to institute unilateral changes in terms and conditions of
employment and Respondent Union's acquiescence therein.
Respondents answered separately, denying all unfair labor practices with which
they were respectively charged. They also made, during the course of the hearing,
separate motions to dismiss, rulings on which were reserved and which are disposed
of by the findings herein.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent Youngstown is an Ohio corporation which is engaged in the business
of interstate transportation of freight and which owns and operates freight terminals
in several States of the United States including Ohio. It derives gross revenues in
excess of $50,000 annually from its interstate business operations. Youngstown is
therefore engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Local 377, herein called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
M. TIIE UNFAIR LABOR PRACTICES
A. Introduction and issues
Youngstown, a common carrier of motor freight, employs three types of drivers:
(1) drivers of company equipment who, in the Youngstown area , were carried as
employees of its affiliate , E & B Company; (2) owner-operators, who drive their
own equipment under lease to Youngstown; and (3) employees who drive the
equipment of fleet owners under lease to Youngstown. Howard Smith drove com-
pany equipment for E & B Company; the other three Charging Parties were owner-
operators.
Youngstown deals with various Teamsters locals at its several terminals, including
Local 377 at Youngstown, Ohio. Youngstown and Local 377 were parties to the
Central States Area Over-the-Road Motor Freight Agreement (herein called the
contract), whose term ran from February 1, 1961, to January 31, 1964. Whether
they were also parties to and/or bound by the provisions of an Iron and Steel and
Special Commodities Addendum (herein called the Addendum) was an issue be-
tween them which was in sharp dispute and which was not finally resolved until
March 1963, by the decision of the Joint Area Committee in Chicago 1 in a case filed
by Youngstown against Local 377 and another local to require them to sign the
Addendum. See section B, infra.
The foregoing dispute touched off the conduct which forms the subject matter
of the present proceeding. Numerous grievances were filed by the Charging Parties
and by other members of Local 377 concerning Youngstown's application of the
provisions of the Addendum and were adamantly resisted by Youngstown. Because
of dissatisfaction with the local's failure to obtain results, there formed within the
local an informal group of six employees 2 (including the Charging Parties) whose
original and primary purpose was to obtain relief from Youngstown' s application
of the Addendum, though they also later formed or joined with a political faction
within the local and also participated to a limited extent in an abortive movement
to form a separate organization of steelhaulers. Their initial move was to employ
an attorney (DiBlasio, their counsel at the hearing) and to accompany him to
Washington, D.C., in May 1961, where among other things they conferred with
an official of the Department of Justice. As a result of that visit they were sum-
moned and gave testimony before a Federal grand jury in Detroit in August 1961,
and in late 1962 they testified again in Detroit at the trial of Youngstown's president,
William F. Wolff, Sr., and Rolland B. McMaster, an official of Local 299 of Detroit,
who were convicted under an indictment which the grand jury had returned under
Section 186, Title 29, Section 2, Title 18, United States Code.
'A national body composed of employer and union representatives.
'Though conveniently dubbed by the General Counsel at the hearing as the "Committee
of `Six," the group had no name, was not a committee, and is not claimed to constitute a
labor organization within the meaning of Section 2(5) of the Act.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith and Dohollow were discharged , respectively, on November 8, 1961, and
April 30, 1962, which was after their appearance before the grand jury but before
they testified at the trial . Theodore and Boano were discharged on November 16,
1962 , immediately following a grievance meeting with Youngstown 's vice president,
William F . Wolff, Jr ., during which Boano was injured.'
The issues on the discharges are whether they were made for the reasons alleged
in the complaint (see supra) or for causes as assigned by Youngstown . Youngs-
town also pleaded that the discharges were made the subject matter of grievances
which were processed , heard, and settled under the grievance machinery of the
contract.
The issues in the case against Local 377 are whether it failed fairly and equally to
represent employees in the unit and whether it refused to process the grievances of
Howard Smith and Peter Dohollow for the reasons alleged in the complaint. Basic
to those issues, as well as to the General Counsel 's theory in his case against Youngs-
town , is the evidence concerning the dispute on the Addendum and its ultimate
resolution , with which we begin the summary of the evidence
B. The issue on the Addendum
The dispute concerning the applicability of the Addendum to the Respondent's
operations arose from the conflicting interpretations by the parties of the following
provision:
This Addendum shall apply only to those employers who specifically signify
their intention to be bound hereby by duly executing the same and whose
affected employees have by majority vote accepted it, or by past practices in
each company.
The Union's view was that the Addendum would become effective only after
majority vote of the employees , and beginning in February 1961 , it held a series
of meetings in which its members voted consistently (and unanimously ) to reject the
Addendum . Youngstown, on the other hand, took the position that the Addendum
applied , and should be considered in effect , because of the past practices of the
Company.
Local 377 processed numerous grievances filed by its members concerning Youngs-
town 's application of the Addendum, maintaining consistently that the Addendum
was not in effect because it was not ratified by the membership . No evidence was
offered (other than suspicions voiced by some of the "committee") that the local
was acquiescing in Youngstown 's unilateral imposing of the provisions of the Adden-
dum. To the contrary, Theodore admitted being present at a union meeting and
participating in the sending of a telegram dated March 25, 1961, to President Hoffa
of Teamsters' International , signed in the name of the executive board of the local.
in which Hoffa was apprised of the membership 's rejection of the Addendum and
was requested to sanction a strike against Youngstown and some 29 other steel
haulers. The telegram requested that, if strike sanction were denied , the Board
be given the reasons, because its membership did not understand the local's per-
sistence in considering and reconsidering the rejected Addendum. Hoffa replied by
wire on March 28, informing the Board that if its members had properly rejected
the Addendum, they were to be paid under the area agreement , and if they were
not being paid under that agreement their remedy was to file a grievance, and he
recommended that a grievance be filed promptly under the procedures provided in
the area contract.
Business Agent O'Niel testified that the local thereafter consistently resisted
Youngstown's attempts to put the Addendum into effect and that until the decision
of the Joint Area Committee in Chicago in March 1963 , his opinion was that the
Addendum was not in effect until ratified by the membership . O'Niel appeared
before the Joint Area Committee in Chicago concerning the matter which had
originated in the form of a "case " brought by Youngstown to require Local 377
and another local to sign the Addendum . Previant, International counsel for
Teamsters , also participated in the hearing before that committee , which upheld
Youngstown's contention that under its past practices it operated within the confines
of the Addendum , and he thereupon advised O'Niel that the Addendum was in effect:
Still not agreeing , O'Niel later processed a grievance or objection on behalf of
Glenn Poland . On his appeal at the State level at Columbus , the Joint Board ruled
that the question was one for Chicago; and in June; the ruling from Chicago was
that the facts presented did not warrant an -appeal and that the decision would
stand . In the meantime , pursuant to Previant's advice, the local had signed the
Addendum under date of May 4, 1963, effective to February 1, 1961.
THE YOUNGSTOWN CARTAGE COMPANY 315
C. Evidence concerning the motive for the discharges
The first concerted activity of the "committee" was, as stated in section A, their
visit to Washington with their attorney in May 1961. They were discharged by
Youngstown immediately upon their return for the reason that they had failed to
report off duty as required by the contract, but they were reinstated within 2 days,
following a grievance meeting at which they were represented by Local 377.
There is no question that Youngstown became fully aware that the six drivers
had made the trip together. Dohollow and Boano both testified to separate com-
ments by William Wolff, Sr., concerning "the way to Washington," and Wolff not
only made no denial, but testified that he had in fact been informed by someone
in the Department of Justice that five or six of his drivers had been there and had
filed complaints about the Company. Respondent also learned (through the ap-
pearance at the office of the United States Marshal with subpenas) that some of
the Charging Parties, as well as a large number of other employees, were being
summonded to Detroit to testify before the grand jury in August 1961, and later
to testify at the trial of William Wolff, Sr., in September 1962. Indeed, William
Wolff, Jr., testified that he requested Steward Glenn Poland to furnish him a list
of those who were going up to testify so that he would know where they were and
where their equipment was.
The General Counsel offered evidence that both William Wolff, Sr., and William
Wolff, Jr., made threats and expressed animus concerning the aforesaid activities
of the committee. Boano testified that during the course of the grievance meeting
following the discharges in May 1961, William Wolff, Sr., charged them with hav-
ing gone to Washington and made the threat, "I'll get you guys if it is the last thing
I do." Howard Smith testified that, shortly after his appearance before the grand
jury, William Wolff, Sr. (who had had a heart attack on February 20, 1961),
asked him whether he always testified against sick people and whether he liked
working at Youngstown. Smith testified further that William Wolff, Jr., commented,
following his appearance before the grand jury, that "If anything happened to his
dad that we would be sorry."
Theodore testified that following his return from a grievance meeting before
the Central States Committee in Chicago in September 1961, William Wolff, Sr.,
charged him with having gone without permission. Though Theodore explained
that he had reported off to the dispatcher at Detroit, who had approved the trip,
Wolff insisted that no one had the right to authorize the trip and threatened,
"I am going to get you. I am going to fire you if it is the last thing I ever do."
In January 1962, William Wolff, Sr., gave Theodore formal written notice that his
owner-operator lease was being canceled because of his "several complaints" filed
with the steward and "several N.L.R.B. actions filed against our company." Charges
which followed that action were settled after the issuance of a complaint by the
Board.
Boano testified that in the month of October 1962, William Wolff, Jr., inquired
what day he was to appear in Detroit and that in other conversations about testify-
ing in Detroit, Wolff said in one of them that "If anything happens to his dad
that we were going to pay." Boano testified further that in a grievance meeting
on November 3, 1962, after William Wolff, Jr., rejected a grievance concerning
one Nick Ambercini, Business Agent O'Niel asked permission to speak to William
Wolff, Sr., about the matter. Wolff replied, "My dad can't help nobody at this
time . . . Thanks to you guys."
The Wolffs made no direct denials of the statements which were attributed to
them. William Wolff, Sr., admitted having engaged in heated arguments with both
Theodore and Boano, but he denied that either his anger or any threat to "get"
them was related to their going to Washington, to their testimony against him, or
to encouraging or discouraging membership in Local 377. When asked specifically
whether he threatened to "get" Dohollow, Wolff answered, "That is a different
question." He went on to explain that Theodore simply "antagonizes" him and that
after he left the hospital (following his heart attack) he called Theodore a lot of
"bad names" and threatened to "get" him, but testified that he was under sedation
at the time and could not remember • what it was he was angry about. As for
Boano, Wolff testified that he "doubted" that he told Boano he would "get him."
He made no denial of Smith's testimony concerning the remark attributed to him
following Smith's appearance before the grand jury. William Wolff, Jr., denied
threatening any driver concerning testimony given before the grand jury or in the
subsequent trial, but be apparently made no denial of the specific remarks attributed
to him by Boano and Smith.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus under Respondent's evidence there was no denial that threats were made;
the testimony was directed instead to denying that the threats were related to the
concerted activities of the Charging Parties or to their testifying before the grand
jury or at Wolff's trial. That claim was substantially weakened, however, by
William Wolff, Sr.'s admission that he could not remember what he was enraged
about at the time he berated Theodore and threatened to "get" him. Furthermore,
Respondent furnished, in Theodore's discharge letter in January 1962, documentary
evidence that its action then was unlawfully motivated. Under all the circum-
stances, including the cumulative weight of the testimony of the General Counsel's
witnesses to a number of separate but similar threats, I credit the latter, and I con-
clude and find that the Wolffs made the statements which were attributed to them
by Boano, Smith, and Theodore.
D. The discharges
1. Howard Smith
Howard Smith was discharged on November 8, 1961, following a complaint to
Youngstown and the submission of a claim for damages in the sum of $500 by
Sidella Steel Corporation, of Newark, New Jersey, to compensate for labor to recon-
dition a load of steel which arrived in a wet and rusted condition due to Smith's
failure to cover the load with tarpaulins during transit. The discharge letter informed
Smith in part that company "policy" was that all loads were to be tarped; that in
addition the bill of lading for the load in question showed that it was to be tarped;
and that he was being immediately discharged for his gross negligence resulting both
in financial loss to the Company and the possibility of losing the account .3
Smith admitted his failure to tarp the load, that he hauled mainly tarped loads,
and that only "very few" of his loads were not tarped. He denied knowing, how-
ever, of any company requirement concerning the tarping of all loads and stated
his understanding to be that the loads were to be tarped only if so specified on the
bill of lading or if the shipper requested the tarping.
Smith's testimony, considered as a whole and in the light of the fact that no
other driver was called to support his alleged understanding of the tarping regula-
tion, requires the rejection of his excuses for failing to tarp the load to Sidella
Steel, particularly in the face of Rspondent's evidence that the bill of lading itself
showed the load was to be tarped. I therefore conclude and find that Smith was in
fact guilty of negligence as charged by Respondent and was responsible for the
resultant damage to the load of steel, and that his conduct was such as to constitute
grounds for discharge. Whether it was in fact the real cause or only a pretext, as
contended by the General Counsel, is a question considered in section E, 2, infra.
We turn now to the evidence concerning the handling of Smith's grievance, which
forms the basis of further allegations against both Respondents.
Smith's grievance
Youngstown mailed a copy of Smith's discharge letter to Local 299 in Detroit
and on November 27 wrote that Union directly (with copies to Smith and to Local
377), referring it to contract provisions that appeals were to be taken in 10 days and
informing it that since no appeal had been taken, it felt that Smith did not wish
to appeal and that he was being dropped from the seniority list
Actually, Smith had discussed with Business Agent O'Niel his grievance con-
cerning his discharge, and when O'Niel called William Wolff, Sr., about it on the tele-
phone, O'Niel was informed that he could not process the grievance on Smith's behalf
because Smith was a member of Local 299 (as a result of an alleged "redomiciling"
in January 1961, later to be more fully adverted to). O'Niel thereupon advised
Smith to file a grievance with that local, and Smith attempted to do so on a subse-
quent trip to Detroit. However, when the steward informed Smith that he would
not know what to do with a grievance, Smith "got mad" and tore up his written
grievance without filing it, and he did not thereafter pursue the matter further with
that local.
Smith did, however, renew the matter orally with Local 377, discussing it again
with O'Niel also went with Smith to Youngstown's office and, while Smith waited
outside, O'Niel went in and talked with William Wolff, Jr., about reinstating Smith.
$ Respondent also offered evidence that Smith had been guilty of earlier violations of
company rules and regulations , including one earlier refusal to tarp a load , but the only
violation assigned for the discharge concerned the shipment to Sidella Steel Company.
THE YOUNGSTOWN CARTAGE COMPANY 317
,O'Niel reported' back that Wolff would not reinstate him for fear that he would
burn up a motor or ruin a truck.
William Wolff, Jr., admitted that Respondent raised with O'Niel the • latter's
right to represent a member of another local and that he refused to discuss Smith's
grievance with O'Niel for that reason because he felt that under the contract O'Niel
had no right to represent Smith.
We turn now to the circumstances of the "redomiciling" and to Smith's efforts;
following his discharge, to effect a retransfer to Local 377. Again there was no
substantial conflict in the evidence that in January 1961, following "a little friendly
persuasion" from William Wolff, Sr., Smith signed a formal transfer of his member-
ship from Local 377 to Local 299. Wolff had informed Smith that any local other
than 377 "would do," but that Local 299 was preferable, and assured Smith that
he would hold his seniority with the Company.
Being somewhat uncertain as to the exact status of his membership, Smith' paid
dues directly to Local 377 for 2 months after the transfer in order to play safe and
to guard against any possible "shuffling around" between the locals. Actually,
Youngstown simply continued to checkoff Smith's dues as it had in the past but,
following his transfer, it transmitted them to Local 299.
William Wolff, Jr., explained Youngstown's interest in "redomiciling" drivers as
follows: Respondent's policy was to assign drivers from the board on a first-in,
first-out basis, but in January 1961 it was getting many complaints and grievances
from drivers demanding assignments on the basis of seniority. Youngstown felt
that the redomicihng of drivers into different terminals would tend to break up such
demands. Furthermore, at that time there was an influx of drivers into Local 377
and the Youngstown area, and feeling that it had too many there, Youngstown took
the matter before the grievance board and won out over the opposition of the local.
Thereafter, it made up a list of the drivers and the areas in which the equipment was
needed. Smith's name was on the list to be domiciled in Detroit, and he was
requested to transfer to Local 299, along with some five or more other drivers.
Though the General Counsel relied on a statement in William Wolff, Sr.'s affidavit
to the Board that he never redomiciled a man, there were two statements elsewhere
in the affidavit that the Company redomiciled no one after February 20, 1961 (the
date of Wolff's heart attack), and Wolff also described therein his former practice
of changing the authorization cards from Local 377 to other locals, and continued:
I told the men in giving them the cards that they would be working out of
the respective terminal in those cities. The Company would then forward
the union dues to those locals.
The General Counsel also cites testimony by Smith of statements made to him
by President Higham of Local 377 in March 1961 to the effect that transfers were
frozen and that no one could be transferred out of Local 377. Those statements,
however, were made after Smith's transfer to Local 299, and they are reconcilable
with William Wolff, Sr.'s affidavit that no one was redomiciied after February 20,
1961. Indeed, Smith admitted on cross-examination that he believed at the time
of his discharge that he was a member of Local 299.
Despite his transfer to Local 299, Smith attended and participated in meetings
held by Local 377 after his transfer, including some of those at which the member-
ship voted on the Addendum. He also acted as spokesman for company drivers
in March 1961, in a meeting with company officials and officers of Local 377,
without his attendance being questioned by either the Company or the Union.
Finally, there was evidence that following Youngstown's refusal'to recognize
Local 377 as Smith's representative, O'Niel called Local 299 two or three times in an
attempt to effect Smith's transfer back to Local 377. Nothing was accomplished
at that time, but in July 1962, Business Agent Angelo of Local 377 arranged for
Smith's transfer from Local 299, but that local imposed a condition that Smith
pay back dues for 6 months, a demand which Smith was financially unable to meet.
Finally,,in June 1963, getting word that Angelo could get him back into local 377,
Smith went to the local's office, discussed the matter with O'Niel, who reinstated
him as a new member upon payment of $8.50, of which $2.50 served as initiation
fee to the International. The normal initiation fee was $50.
2. Peter Dohollow
In June 1961 , the committee of six made plans to hold a picnic at which the
employees would be informed of what they had done in Washington. Dohollow
volunteered to obtain the names and addresses of all employees so that invitations
could be mailed, and he later requested an office girl to write up for him a list of
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
names and addresses . She suggested instead that Dohollow buy post cards or
envelopes and that she would run them through the Company's addressograph
machine, but she finally agreed to undertake the entire chore . She later gave
Dohollow two separate bundles of envelopes , and he paid her $5 for her services.
Dohollow testified that there were some 200 to 300 of the envelopes and that he
gave them to Glenn Poland without looking at them , but he admitted on cross-
examination that he knew the envelopes had been run through the addressograph
machine and that when he later looked at them he saw that some of them were
imprinted with Youngstown 's name and address.
Though the picnic plans did not mature, Poland kept the envelopes until April
1962 , when some of them were used for mailing out to Youngstown drivers notices
of a meeting to be held of April 29 (see attached Appendix A) concerning a
"rebel" movement being led by one Pace , in which at least some of the committee
(Boano , Poland, and Dohollow ) had become interested.
William Wolff, Jr., learned of the use of the company stationery on a trip to
Wooster, Ohio , investigated the matter on his return to the office , and learned that
it was Dohollow who had procured the envelopes . He discharged Dohollow and
terminated his lease by letter of April 3 , assigning the following reasons:
You acted against this company by dishonestly securing envelopes with com-
pany mimeographed addresses and sending anticompany and union propaganda
to employees and leaseholders of this company. This dishonesty resulted in
serious problems, much embarrassment for the officers • of the Youngstown
Cartage Co ., and fleet owners calling this office and threatening to quit because
of the so-called letter that was enclosed in our envelopes.
Dohollow was informed that he was being discharged under article 10 of the
contract , which required no warning notice where a discharge was made for
dishonesty.
Doh'ollow 's grievance
There was scant evidence that Local 377 failed properly to process Dohollow's
grievance concerning his discharge . Dohollow himself testified that Business Agent
Angelo presented his case first in a meeting with the Company and later before the
Joint Board at Columbus , and that Angelo 's presentations were vigorous and appar-
ently genuine and in good faith . Indeed , Dohollow testified he was satisfied that
Angelo was doing the best he could and was making a genuine effort to get Dohol-
low reinstated and that (Dohollow ) did not feel that the Union could have done
anything beyond what it did do concerning the handling of his grievance.
Ignoring that absolution , the General Counsel relies in part on Dohollow 's testi-
mony that following the Columbus hearing (which upheld the discharge ) he over-
heard a conversation between William Pressler (president of the Ohio Teamsters
area ) and Angelo in which Pressler told Angelo that if he did not "pull some union
cards out the local ," Pressler would pull Angelo 's card , and that Pressler then
turned and pointed at Dohollow and said , "He is not done with me yet ." What-
ever the implications of those statements , it is plain that Local 377 is not charge-
able with them . Indeed they would indicate that Angelo ( and Local 377) may
have incurred Pressler 's displeasure by the vigorous and sincere handling of a
grievance on behalf of one who was suspected ( through the mailing of the notices)
of involvement in the Pace movement . , The evidence concerning the latter and
concerning certain political action and maneuvering within Local 377 is also of some
relevance.
In February 1962, Boano was the movant at a union membership meeting of a
successful motion to remove O 'Niel as business agent and to replace him with
Angelo . In April , Boano, Poland, and Dohollow attended some of the meetings
which Pace conducted , whose primary purpose was the forming of a brokers or
steel haulers association within Teamsters if possible . (See attached Appendix A.)
Indeed Dohollow testified that the group was not a dissident group , was not opposed
to Local - 377, but was to the contrary in favor of maintaining membership in that
local and having it continue as the representative of the group.
It was apparent , however , that Teamsters ( and Local 377) viewed Pace's activities
as constituting a rebel movement . Thus Boano testified that O 'Niel later referred
to his attending a rebel meeting and- told him , "You guys are in trouble," and that,
"They are going to pull your cards. " Boano admitted , however, that formal
charges would have been necessary under the constitution and bylaws of the union
and that no action was taken toward that end.
THE YOUNGSTOWN CARTAGE COMPANY 319
From here on the evidence assumed a purely political hue, involving the jockey-
ing between factions within Local 377 . Boano and Dohollow testified that they;
Poland, Theodore, and Smith met in June 1962 , at O'Niel 's home with O'Niel and
one Abe Schwartz , another representative of Local 377 , and there discussed the
matter of getting Dohollow reinstated . Boano testified that his own position was
that he would have made "any deal with those guys" that was necessary to get
Dohollow back to work, and that he therefore agreed when Schwartz proposed
that if he would move at the next meeting to reinstate O'Niel as business agent,
removing Angelo , he and O 'Niel would "see what they could do" for Dohollow on
their next trip to Columbus . Boano did not follow through , however, because of
dissension within his own group.
As Dohollow 's testimony showed that the meeting at O'Niel 's home followed
after the Columbus hearing before the Joint Board at which Dohollow 's, grievance
received final rejection despite a fair and vigorous representation by Local 377,
Schwartz ' promise was at best an empty one, with little weight as a quid pro quo
and with none as probative evidence of a failure on the part of the Union fairly
to represent Dohollow on his grievance.
Further testimony by Boano related solely to developments in January 1963,
when Boano and his associates were running a slate of candidates in an election
campaign , apparently against a slate of incumbent officers, including O'Niel . O'Niel
and Schwartz then made frequent references to the connection which Boano,
Poland, and Dohollow had had with the rebel movement and to the fact that their
cards could be "pulled" because of such activity . Because such charges constituted
a political handicap , Boano 's faction required proof from Poland , before accepting
him as its candidate , that he had not signed a charter for some organization
known as "We Will Win ." It also considered whether Dohollow would be an asset
on the ticket, feeling that if he were in fact "in cahoots" with Pace , as Boano
expressed it, he should not run with them because, "[W ] e figured we were good
Teamsters."
3. Eugene Theodore and Michael Boano
Theodore and Boano were discharged on November 16, 1962 , following their
participation on the previous day in a heated grievance meeting with William
Wolff, Jr . Preliminarily , there should be noted here again their connection with
the committee , as well as the fact of Theodore 's prior discharge in January 1962
for having filed grievances with the Union and unfair labor practice charges with
the Board . Also to be noted is the fact that on April 24, 1962, William Wolff, Jr.,
formally notified Boano, an alternate steward, that Respondent proposed not to
honor him further as committeeman or assistant steward in presenting matters to
the Company because of Boano 's involvement on April 17 in a fist fight and quarrel
with another union member . Boano was also threatened with action under article 10
of the contract ( discharge or suspension ) in the event of a recurrence of such conduct.
On November 14, Dispatcher Healey assigned Theodore to pick up a load to,
Philadelphia . Theodore testified that that was normally not his run, and that when
he inquired if Healey had any "bumpers ," his normal operation, Healey replied
that he did not and that Theodore was to take the load "or else." Thereafter
Theodore 's truck broke down on the way to make the pickup and he did not fill the
assignment. In the meantime he had requested Business Agent O 'Niel to straighten,
out the dispatching method at Youngstown as his own understanding was that his
equipment was for use in Michigan and not in Pennsylvania.
Though no written grievance was filed , the matter was scheduled for discussion
the next day in a grievance meeting in William Wolff , Jr.'s office . Then present
were Theodore , O'Niel , Steward Poland , and Alternate Steward Boano for the
Union , and William Wolff, Jr., for the Company . Wolff testified that though he
initially questioned Boano 's presence because of his prior letter to Boano, he gave
in to O 'Niel's plea and let Boano remain.
Following the disposition of another grievance , discussion turned to Theodore's
complaint concerning the assignment which Healey had given him the prior day.
Some preliminary heat was engendered during a dispute between Theodore and
Healey (who was brought into the meeting ) when Theodore accused Healey of
lying concerning the ,availability of a load of , bumpers for Theodore on the 14th .4
4 Though the merits of the dispute are irrelevant to the issues, the evidence established
that there were no bumpers for Theodore at the time of his assignment to Philadelphia
and that Theodore 's truck in fact suffered a breakdown on the way to pick up the latter
load
744-670-66-vo1. 146-22
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There was also argument between Theodore and Wolff on Wolff's position that
Theodore was supposed to make his equipment legally operable in all the States
in Youngstown's system and on Theodore's rejoinder that William Wolff, Sr., had
himself ordered Healey to keep Theodore out of a certain area because his equip-
ment was not qualified for operation there. It was around this point that Boano
entered the fray in support of Theodore's claims.
According to Wolff and Healey, Boano banged his fist on Wolff's desk and made
loud, profane, and indecent comments. According to Theodore and Boano, William
Wolff, Jr., himself gave vent to indecent remarks in ordering them from the office.
It may safely be assumed under all the circumstances, and I find, that the statements
were made substantially as charged on both sides.
In any event there was no substantial dispute as to what happened thereafter.
When William Wolff, Jr., informed O'Niel that he was ending the meeting, no one
made a move to leave, and Boano made some remark indicating he would not
leave until he got the matter disposed of. Wolff then went over and opened the
door, approached Boano, and took him by the arm to eject him. In some manner or
other Boano's head struck the door and he fell to the floor, although Wolff claimed
to have been unaware of that until after he turned his attention to Theodore.
Theodore testified that Wolff also grabbed him by the arm, tore his sweater, and
put his fingernails into Theodore's arm; and Poland testified similarly that Wolff
grabbed Theodore and started pulling at him.
Wolff testified that he had no recollection of touching Theodore. Healey testified
that his own view was blocked at the time William Wolff, Jr., approached Boano
and that he did not see Wolff lay hands either on Boano or on Theodore. Other-
wise , Healey's testimony was corroborative of Wolff's.
An ambulance was called for Boano and he was taken to the hospital where he
remained for some 4 hours. Theodore testified that he followed Boano to the
hospital and was given first aid there because of a flesh burn on his arm from
Wolff's fingernails.
On the following day Theodore received a telegram from the Company informing
him he was discharged because of the trouble he had caused the preceding day.
Boano at first received a letter informing him he was suspended pending an investi-
gation of his activities at the office, and later received a telegram informing him
that he was discharged because of his conduct at the meeting.
The Grievances; the Settlement
Thereafter, Theodore and Boano filed grievances with the local and also filed
assault and battery charges in the municipal court against William Wolff, Jr. They
also filed charges with the Board. An informal settlement was reached in the
municipal court under which Theodore and Boano were to be reinstated with full
seniority and would receive backpay from the time of their discharges until their
reinstatement. Theodore resumed driving on January 7, 1963, and Boano around
February 8. However, as they did not feel that the backpay settlements as first
made compensated them fully under the terms of the settlement, they filed further
grievances with the Union. Under date of February 25, 1963, Youngstown wrote
Boano confirming the prior settlement agreement reached in the municipal court
and continuing as follows:
According to this agreement, you are, and have been since December 8, 1962,
reinstated to your employment with Youngstown Cartage Co. with full restora-
tion of your seniority rights as an owner operator.
I also confirm the understanding that any additional claim for earnings lost
as a result of the original discharge will be paid in accordance with the final
decision of the National Labor Relations Board and the grievance machinery of
the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
Thereafter, the grievances for additional compensation were processed by the
Union as far as the Joint Board in Columbus, resulting in ultimate victory for
Boano and Theodore and the award of an additional amount of backpay for each .5
Pursuant to notice from the Company, Boano went to the office, received his check
for the additional moneys, and signed a release. Theodore, however, never pre-
sented himself at the office, either alone or with the business agent, and he has
received no check and has signed no release. Theodore explained that he was
5 Under Theodore's testimony the Columbus decision was made in March or April, but
according to Boano, it was made in May.
THE YOUNGSTOWN CARTAGE COMPANY 321
unwilling to collect a check at the office because William Wolff, Jr ., had told him to
get out of there and not to come back, and that he therefore refuses to go to the
office.
Theodore's Sale of Equipment ; the Issue of Seniority Rights
On March 5 , 1963 , Theodore sold his equipment and wrote the Company inform-
ing it of that fact , but that he was exercising his seniority rights and was ready to
go to work as a driver . Theodore received a reply around March 22 to 25 , inform-
ing him that the Company considered him a voluntary quit because his tractor was
not beyond repair . Theodore admitted that he sold his equipment to Don Wells,
another employee of Youngstown , who to his knowledge was going to use it in his
employment with the Company , and that Wells did in fact use it for some 2 or 3
weeks, but that it then broke down completely and could not be operated.
Under the area contract all employees had terminal seniority , and it was specifi-
cally provided that the employer could not require as a condition of continued em-
ployment that an employee purchase his own equipment . Owner-operators had
seniority only as drivers. The Addendum provided for three separate terminal
lists, one for owner-operators , one for company drivers, and one for drivers of
fleet-owned equipment . Provision was also made that an owner-operator could
exercise his terminal seniority rights by bumping either company drivers or fleet
drivers where his equipment wore out beyond economical repair and he did not care
to buy other equipment . William Wolff, Sr., testified , however , that under the
maintenance of standards clause in the contract , the Addendum did not and could
not take away any of the benefits which employees received prior to February 1,
1961 , and that that was true as to all terms and conditions of the contract , including
seniority.
E. Concluding findings
1. The case against Local 377
There is no substantial evidence which supports the complaint allegations and
the General Counsel's contentions that the Union failed fairly and equally to repre-
sent employees for whom it was the bargaining representative and that it refused to
process the grievances of Smith and Dohollow because they were members of a
dissident group opposing Youngstown's attempt unilaterally to change the terms and
conditions of employment (i.e., by imposing the provisions of the Addendum) and
the acquiescence of the Union in such action . Insofar as the Addendum was con-
cerned , the evidence showed that Local 377 in fact fought to the last ditch the
Company's attempt to apply it, attempting even an appeal from the final decision of
the Joint Area Committee.
Similarly without substance were the General Counsel 's claims concerning
Dohollow's grievances , for Dohollow himself attested to the fairness and genuine-
ness of the local's efforts in his behalf. The remaining evidence did not establish
the contrary, being concerned mainly with the devious and confused ramifications
of a political right within the local. As for Smith's grievance , the evidence showed
that Local 377 did what it could to present his grievances to Youngstown, but was
blocked by the Company's refusal to recognize it as his representative . Even then
'O'Niel attempted to follow through by effecting a retransfer from Local 299 in
order to meet Youngstown's objections.
As I therefore conclude and find that the General Counsel failed to prove the
allegations of his complaint against the Union, I shall grant the motion to dismiss it.
2. The case against Youngstown
a. Interference , restraint, and coercion
Based on the evidence summarized in section C, supra, I conclude and find that
Respondent Youngstown threatened its employees with reprisals concerning their
-participation in concerted activities , i e., their trip to Washington , their filing of
grievances and charges, and their appearance before the grand jury and at the
criminal trial of William Wolff , Sr., and that it thereby interfered with, restrained,
.and coerced employees in the exercise of rights guaranteed in Section 7 of the Act.
I find that by the assaults upon Theodore and Boano at the grievance meeting,
Respondent further interfered with, restrained , and coerced employees in the exer-
cise of their Section 7 rights. There was plainly nothing about Theodore's conduct
which justified Wolff's action , and even if Boano 's conduct may have furnished
justifiable excuse for terminating the meeting , there was no warrant for Wolffs
. attempted forcible ejection of him, from which Boano 's injuries resulted.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also conclude and find that by refusing to entertain Smith's grievance as pre-
sented by Local 377, Respondent further interfered with, restrained, and coerced
employees in the exercise of their Section 7 rights. See Sections 8(a)(5) and 9(a).
Not only was Local 377 the statutory bargaining representative of all employees
in the Youngstown unit, but Local 299 had forfeited any right to be present during
the adjustment because of its own refusal to entertain Smith's grievance.
I find that the evidence does not establish that Respondent interrogated employees
concerning their union membership, activities, and desires as alleged in the complaint.
b. The discharges
Although the same body of evidence concerning motivation is relevant to all
of the discharges, there are cogent reasons why the Smith and Dohollow discharges
stand on a different footing from those of Theodore and Boano and why different
principles are determinative of the two sets of discharges. I conclude and find
initially that the General Counsel made out a prima facie case by the evidence
summarized in section C, supra, that Respondent was motivated in all four cases
by his animus against the employees for engaging in protected concerted activities,
for presenting grievances and filing charges, and for testifying against William
Wolff, Sr.
In the cases of Smith and Dohollow, however, each engaged in serious miscon-
duct which plainly furnished just ground for discharge and which was assigned as
the cause. The issue in their cases, therefore, becomes one of determining whether
those causes were the real ones or only pretexts, and whether Respondent was
moved instead by its animus as repeatedly expressed on former occasions. I con-
clude and find that Respondent's evidence was sufficient to overcome the General
Counsel's prima facie case and to establish that its action in each case was motivated
by the cause assigned.
Smith's negligence had cost Youngstown a flat $500, plus the danger of further
loss of business. His record otherwise was such that, had Respondent been seeking
for excuses to discharge him, it had ample opportunities to do so before his final
costly blunder. It cannot therefore be found, as the General Counsel urges, that
the Newark load constituted only a pretext which Respondent seized upon.
Dohollow's conduct had resulted in the appropriation of company stationery, in
the use of company facilities, and finally in the use of the stationery in mailing
out literature which seemed plainly directed at forming a new labor organization
among Youngstown's employees to supplant the incumbent bargaining representative
with whom Respondent was by statute required to bargain. If knowingly made,
such contributions to a labor organization would plainly have left Respondent
vulnerable to unfair labor practice charges of unlawful assistance and support
under Section 8(a) (2) of the Act. Though Respondent's investigation was directed
at discovering all who had participated in the actual mailing of the notices , Dohol-
low's admissions were so guarded and limited that it was able to establish only
that Dohollow was the recipient of the envelopes .6 Under all the circumstances I
cannot find here, anymore than I did in Smith's case, that Respondent seized upon
the incident as a pretext, and I find to the contrary that it discharged Dohollow for
the reason it assigned.
Theodore and Boano on the other hand were discharged for engaging in con-
certed activities of the most common and conventional variety, i.e., the presentation
of grievances. Both had been the object of Youngstown's bitterest expressions of
animus, and Theodore had been previously discharged specifically for filing griev-
ances with the Union and unfair labor practice charges with the Board.
So far as Theodore's conduct at the grievance meeting was concerned, there was
nothing about it which warranted the drastic action of discharge. Though a minor
amount of heat was engendered by Theodore's attack on the bona fides of the
assignment which Healey had made him and by his calling Healey a liar, Healey's
testimony reflected nothing of resentment or antagonism on his part , nor was there
evidence that Wolff took exception to it. Of course, Boano's conduct, when he
injected himself loudly and profanely into the dispute, justified Wolff in calling a
halt and in declaring the meeting at an end. It did not, however, justify his attempted
forcible ejection of Boano and Theodore and also plainly did not justify the
subsequent action of discharge.
6It is a reasonable assumption that Dohollow's failure during grievance meetings to
divulge the identity of his confederates was due to apprehensions that they too would
be discharged.
THE YOUNGSTOWN CARTAGE COMPANY 323
The presentation of grievances through collective-bargaining representatives is an
integral part of the bargaining process (see section 9(a)) and, like collective bar-
gaining, is a form of concerted activities protected by section 7. Principles which
the Board has established concerning conduct of employees during bargaining
sessions are therefore applicable to and determinative of the present issue. Those
principles are spelled out by the Board in The Bettcher Manufacturing Corporation,
76 NLRB 526, 527. Though not holding that an employee may never be discharged
because of what he says or does in the course of a bargaining contract, the Board
commented:
Aline exists beyond which an employee may not with impunity go, but that
line must be drawn "between cases where employees engaged in concerted
activities exceed the bounds of lawful conduct 'in a moment of animal exuber-
ance' (Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 286,
293) or in a manner not activated by improper motives, and those flagrant
cases in which the misconduct is so violent or of such serious character as to
render the employee unfit for further service."
See also Bowman Transportation, Inc., 134 NLRB 1419, 4120, enfd. 314 F. 2d
497 (C.A. 5).
The conduct of Theodore and Boano plainly did not merit discharge under those
standards . Indeed , Respondent 's subsequent reinstatement of them and its recog-
nition of Boano as steward since his election in May, adequately attests that their
conduct was not so serious as to render them unfit for further service.
I therefore conclude and find on all the evidence that Respondent discharged
Theodore and Boano because of their participation in protected concerted activities
both at the grievance meeting on November 15 and on the earlier occasions
involving their trip to Washington, their testimony before the grand jury and at
the trial of William Wolff, Sr., and their filing of earlier grievances and charges;
and that by such conduct Respondent Youngstown engaged in interference, restraint,
and coercion of employees in the exercise of rights guaranteed in Section 7 of the
Act, in violation of Section 8(a)(1). Because their discharges resulted from the
presentation of grievances by Local 377 as their statutory bargaining representative,
I conclude and find further that Respondent Youngstown thereby engaged in dis-
crimination to discourage membership in the Union within the meaning of Section
8(a)(3) of the Act.
There remains the issue whether the discharges were also violative of Section
8(a)(4). As previously found Respondent's motivation lay partly in the animus
it entertained against them and other members of the committee because they had
testified against William Wolff, Sr., before the grand jury and at the criminal trial,
and specifically, in Theodore's case , because of his filing of charges with the Board.
To the latter extent at least Theodore's discharge fell plainly within the proscription
of Section 8(a) (4), and I so find.
Though I conclude and find contrary to the General Counsel's contention that
the grand jury investigation did not qualify'as a proceeding "under this Act" within
the meaning of Section 8(a)(4),7 I find that the trial under the indictment so
qualified. Thus the indictment was returned against William Wolff, Sr., under
Section 186(a) of Title 29, United States Code, and against his codefendant,
McMaster, under Section 186(b) of Title 29. As those sections are identical with
Section 302(a) and (b) of the present Act, as amended by the Labor-Management
Reporting and Disclosure Act of 1959, I conclude and find that the giving of testi-
mony at the trial under an indictment involving criminal violations of Section 302(a)
and (b), fell within the literal language of Section 8(a)(4).
Though there is no legislative history which 'shows a specific intent that Section
8(a)(4) extends to proceedings brought for violations of Section 302, the course
of prior amendments to the Act permits no other conclusion. Thus Section 8(a) (4)
has been continued in its present form without change since the enactment of the
original Wagner Act. , In 1947 the adoption of the Taft-Hartley Act created in
Section 8(b) an entirely new body of proscriptions against labor organizations. It
has never been suggested that Section 8(a)(4) will not protect the filing of charges
and the giving of testimony in proceedings under Section 8(b). There .is no
greater reason to assume that proceedings under Section 302, as first added by
the Taft-Hartley amendments and as augmented by the Landrum-Griffin bill_in 1959;
will not similarly qualify for protection.
4 As I have found above that a violation of Section 8 (a) (1) 'resulted from discharges
which were motivated in part by the grand jury appearances, the Recommended Order
will reach and remedy the conduct in any event.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That the forum which conducts the proceeding is not the Board is, of course,
not material if the testimony be given "under this Act." Thus the protection of
Section 8(a)(4) would plainly extend to testimony given by employees in District
Court actions under Section 10(j) and (1). Indeed, in view of the literal and
unqualified language of Section 8(a)(4), there is not the slightest basis for con-
cluding that Congress intended it to protect testimony given only under some
sections of the Act but not under others.
I therefore conclude and find that by discharging Boano and Theodore in part
because they gave testimony in the criminal action brought in enforcement of
Section 302 of the Act, Respondent engaged in an unfair labor practice under
Section 8(a)(4).
IV. THE REMEDY
Having found that Respondent Youngstown engaged in certain unfair labor
practices, I shall recommend that it cease and desist therefrom and that it take
certain affirmative action which is conventionally ordered in such cases, which I
find necessary to remedy and to remove the effects of the unfair labor practices
and to effectuate the policies of the Act. For reasons which are stated in Consoli-
dated Industries, Inc., 108 NLRB 60, 61 and cases there cited, I shall recommend a
broad cease-and-desist order.
Some further discussion of remedies is necessary because the General Counsel
contends that the reinstatement of Boano and Theodore as part of the settlement
in the municipal court action was not unconditional. In Boano's case, the evidence
showed to the contrary that he was reinstated with full seniority rights and that he
is currently employed. Though Boano contested the first backpay settlement, he
later received a further award as a result of the processing of his grievance, as
envisioned in Youngstown's letter of February 25, 1963, and he has since collected
the moneys and has signed a release. Thus, in Boano's case the unfair labor prac-
tices resulting from his discharge have been fully remedied save for the posting of
the customary notice to employees.
In Theodore's case, subsequent developments established that his reinstatement
was not accompanied with full restoration of his seniority rights. Thus, though it
was plain from William Wolff, Sr.'s testimony that the Addendum did not affect
Theodore's seniority rights under the area contract to "bump in" on company and
fleet drivers following the sale of his equipment, Youngstown nevertheless denied his
assertion of that right and regarded him as a "quit." I shall, therefore, order that
Respondent Youngstown fully restore to Theodore all seniority rights to which he
was entitled prior to February 1, 1961, that it place his name at the appropriate
place on its terminal seniority lists for drivers of company equipment and for
drivers of fleet-owned equipment, and that it offer him full reinstatement to such
position as was available to him on March 5, 1963, or such as has since become
available. I shall also order that Respondent Youngstown make Theodore whole
in the usual manner for any loss of pay which he may have suffered since March 5,
1963, as a result of the discrimination against him. I shall also recommend that it
forthwith make to Theodore a formal tender of the amount of the additional back-
pay as awarded to him in the grievance proceeding which followed the former
settlement in the municipal court action .8
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. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act as found in section E, 2, above, Respond-
ent engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act.
2. By discharging Eugene Theodore and Michael Boano because of their participa-
tion in protected concerted activities, because they filed charges, and because they
gave testimony before the grand jury and at the criminal trial of William Wolff, Sr.,
Respondent Youngstown engaged in further interference, restraint, and coercion
and in further unfair labor practices proscribed by Section 8(a) (1).
s Theodore's reinstatement , like Boano's , presumably left open the issue of additional
backpay to be determined under the grievance machinery of the contract or in the present
proceeding. They both won additional awards, and there is no suggestion in the record
that the proceedings were not fairly and equitably conducted . Theodore 's failure to re-
ceive payment of the additional award was due solely to his-refusal to go to Youngstown's
office. I -
S.A.G.E., INC. OF HOUSTON 325
3. By discharging Theodore and Bono , and by thereafter failing unconditionally
to reinstate Theodore, Respondent Youngstown engaged in discrimination to dis-
courage membership in Local 377, thereby engaging in unfair labor practices
proscribed by Section 8(a)(3).
4. By discharging Theodore and Boano because they filed charges and gave
testimony under the Act, Respondent engaged in unfair labor practices proscribed
by Section 8(a) (4).
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
6. Respondent Youngstown did not engage in unfair labor practices by discharg-
ing Howard Smith and Peter Dohollow.
7. Respondent Union did not engage in unfair labor practices as alleged.
APPENDIX A
ATTENTION-STEELIAULERS
YOU NEED A GOOD UNION
JOIN THE ORGANIZATION THAT 'S GOING TO HELP YOU
JOIN THE FORMATION OF A NEW STEELHAULERS UNION
THIS IS SOMETHING YOU NEED AND WANT * * *
* STOP * GOING * BACKWARDS *
1. Stop rate and percentage cuts
2. Stop the hiring and bringing of new truckers
in the steelhaul field,-to assure steady work
3. BETTER WORKING SECURITY
4. Better and honest representation
Steelhauling is a large and active industry
today, but the steelhauler is very badly dis-
organized and subject to many bad labor practices.
Stop being pushed around and join this
organization which is starting in other area's
and eventually will all be coor -dinated together.
We can then affiliate with the teamster's
as an organization on our terms , or affiliate
with some other large labor organization.
COME TO THE MEETING-SUNDAY-APRIL, 29TH.
EAGLES HALL-CORNER OF-FIFTH & RAYEN AVE.
10:00 AM YOUNGSTOWN, OHIO
S.A.G.E ., Inc. of Houston and Its Licensees , ' Joint Employers
and Retail Clerks Union , Local No. 455, AFL-CIO, affiliated
with Retail Clerks International Association , AFL-CIO, Peti-
tioner. Case No. 23-RC-1984. March 10, 1964
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Hearing Officer
'The petition was amended to include the following licensees : S.A.G.E. Sewing Center ;
Coastal Camera Company , Inc. ; Topsy 's Catering Co., Inc. ; Joches, Inc. ; BAE Sales,
Inc. ; Goldan Division of Iowa Paint Manufacturing Company, Inc. ; Berlan 's, Inc. of
San Angelo ; Lack's Wholesale Distributors , Inc. ; Matt, Inc. ; Leased Departments of
Texas, Inc. ; Linen Sales Company ; Murbil , Inc. ; Discount Records of Oklahoma, Inc. ;
Hakone, Inc. ; Confectionery Cabinet Company , Sage Services , Ine. ; Saage Liquor, Inc. ;
Tex-Calmont, Inc. ; Harold Lipp, d/b/a Lipp Cleaners ; and Gulf Enterprises, Inc.
146 NLRB No. 35.