Tidewater Express Lines, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1937

2 N.L.R.B. 560 (N.L.R.B. 1937)

In the Matter of TIDEWATER ExPREss LINES, INC. and LOCALS No. 355
AND No. 430. INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, STABLEMEN AND HELPERS OF AMERICA
Case No. C-1.16.-Decided Janutai y 23, 193'7
Dlotoi 7, ut5 Truu.^portution Indust y-Iutcrfercucc, ILesiraiut or Coercton :
expressed opposition to labor organization. threats of retaliatory action-"Yel-
low Dori" Contrast-D^scr,n,,not,on: discharge, for union membership and ac-
tivity; for retusal to sign "yellow dog" contract-Rciustatenient Ordered-
Buck pay, awarded.
Mr. Jacob B1-um for the Board.
Mr. Frederick P. Mett, of counsel to the Board.
DECISION
STATEMENT OF CASE
On October 16, 1936, Local No. 355 of the International Brother-
hood of Teamsters, Chauffeurs, Stablemen and Helpers of America,
hereinafter referred to as Local No. 355, filed with the Regional
Director for the Fifth Region a charge that the Tidewater Express
Lines, Inc., hereinafter referred to as the respondent, had engaged
in and was engaging in unfair labor practices affecting commerce
within the meaning of the National Labor Relations Act, 49 Stat.
449, hereinafter referred to as the Act. On the following day Local
No.•430 of the International Brotherhood of Teamsters, Chauffeurs,
Stablemen and Helpers of Ammerica, hereinafter referred to as Local
No. 430, filed a similar charge against the respondent with the Re-
gional Director for the Fourth Region. On November 4, 1936, the
National Labor Relations Board, hereinafter referred to as the
Board, acting pursuant to Article II, Section 37 (c) of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered the latter charge transferred to the Fifth Region for the
purpose of consolidation with the proceeding already instituted in
that Region. On November 10, 1936, the Board, by the Regional
Director for the Fifth Region, issued a complaint against the re-
spondent based on the aforementioned charges.
The complaint, in brief, alleges that the respondent, a Maryland
corporation, with its principal office and place of business at Balti-
more, Maryland, is engaged "in the interstate hauling of merchan-
560
DECISIO NS AND ORDEES 561
dice and/or freight for anyone who chooses to use its services";
that the respondent discharged Frank Scholl I and William D. Lewis,
two of its truck drivers, on August 14, 1936, and October 2, 1936,
respectively, for the reason that they respectively joined and assisted
Local No. 430 and Local No. 355, labor organizations, and engaged
in concerted activities with other employees of the respondent for
the purpose of collective bargaining and other mutual aid and
protection, in violation of Section 8, subdivisions (1) and (3) of
the Act; and that the respondent "during the latter part of Sep-
tember, or early part of October, 1936, and on dates thereafter . ..,
did foster, encourage, sponsor, dominate, and interfere with the
formation . . . and administration of a labor organization of its
employees . . .", in violation of Section 8, subdivisions (1) and (2)
of the Act.
The respondent did not file an answer to the Board's complaint.
but on November 18, 1936, filed with the Regional Director for the
Fifth Region a "Plea to the Jurisdiction and Motion to Dismiss".
Therein^it stated. that it %i as appearing specially for the purpose of
objecting to the Board's, jurisdiction on constitutional grounds,
which it set forth in detail, and moved that the case be dismissed.
Pursuant to notice thereof, duly served on the parties, Robert M.
Gates, duly designated by the Board as Trial Examiner, conducted
at hearing at Baltimore, Maryland, commencing on Novoinber 23, 1936.
The Board was represented by counsel. The respondent failed to ap-
pear at the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses and to produce evidence was afforded to all
parties. At the close of the hearing counsel for the Board moved
that the complaint be dismissed as to the allegation that the respond-
ent had violated Section 8, subdivision (2) of the Act. The motion
was granted by the Trial Examiner. On December 9, 1936, the
Board, acting pursuant to Article II, Section 37 (a) of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered that the proceeding be transferred to and continued be-
fore it.
The Board has reviewed the entire record in the case. No ruling
was made by the Trial Examiner on the respondent's "Plea to the
Jurisdiction and Motion to Dismiss". The Board hereby over-
rules the plea and denies the motion. The Trial Examiner's ruling
on counsel for the Board's motion to dismiss the complaint as to the
allegation that the respondent had violated Section 8, subdivision
(2) of the Act, is hereby affirmed.
TTnon the entire record, including the pleadings, transcript of
rho l,aarin!i^ and exhibits. the Board makes the following:
1 This nann (, aphcri s as Fiank Sholl throughout the transeript of testimony in this case.
562 -NATIONAL LABOR RELATION'S BOARD
FINDINGS OF FACT
I. THE RESPONDENT
The respondent , Tidewater Express Lines , Inc., is a Maryland cor-
poration , having its principal place of business in Baltimore, Mary-
land. It is eligaged in intrastate and interstate hauling of mer-
chandise and freight by truck over the public highways of the Dis-
trict of Columbia and of the States of Pennsylvania and Maryland,
and maintains terminal facilities at Baltimore , Maryland, and at
York, Pennsylvania . It owns and operates about 27 trucks and
employs approximately 33 truck drivers.
The trucks operating out of the respondent 's Baltimore terminal
carry merchandise and freight on a regular daily schedule between
Baltimore and the following cities, servicing intermediate as well as
off-route points : Rockville , Maryland ; Frederick , Maryland ; Sykes-
ville, Maryland ; York, Pennsylvania; Chambersburg , Pennsylvania;
Harrisburg , Pennsylvania ; and Washington, D. C. The trucks
operating out of the respondent 's York terminal carry merchandise
and freight between York and the following cities, servicing inter-
mediate as well as off-route points : Lancaster , Pennsylvania; Har-
risburg, Pennsylvania ; Windsor , Pennsylvania ; York Haven, Penn-
sylvania ; and Baltimore , Maryland. At points along its routes the
respondent effects an interchange of traffic with independent con-
necting common carriers . In addition to operating as a contract
carrier of freight and merchandise for anyone who chooses to use
its services , the respondent acts as agent for a great number of com-
mon carriers , performing their collection and delivery services from
and to innumerable points in Pennsylvania , Maryland, and the
District of Columbia.
In its applications for a certificate to operate as a common car-
i ier of property under the Motor Carrier Act of 1935,2 filed with the
Interstate Commerce Commission on December 26, 1935, and on Feb
ruary 7, 1936, the respondent admitted under oath that it was
engaged in the business of transporting property in interstate
commerce.
The respondent, is engaged in traffic, commerce and transporta-
tion within the District of Columbia , between the District of Colum-
bia and the States of Maryland and Pennsylvania , and between the
State of Maryland and the State of Pennsylvania ; the trucks owned
by the respondent are instrumentalities of, and the employees of the
respondent are directly engaged in, such traffic , commerce and
transportation.
2 49 U S . C., Chap 8 ; 49 Stat. 543.
DECISIONS AND ORDERS 563
II. THE ORGANIZATIONS INVOLVED
Locals No. 355 and No. 430 of the International Brotherhood of
Teamsters, Chauffeurs, Stablemen.and Helpers of America, affiliated
with the American Federation of Labor, are labor organizations,
membership in which is open to drivers of vehicles and their helpers,
freight handlers, and platform workers. The jurisdiction of Local
No. 355 extends over the entire State of Maryland. Local No. 430
exercises jurisdiction over York, Pennsylvania, and over the area
,w•ithin'.a 30 mile radius of that city.
III. THE UNFAIR- LABOR PRACTICES
Frank S&Itoll, a truck driver employed by the respondent, began
working for the respondent in March, 1936. As a. truck driver, as-
signed to the, respondent's York, Pennsylvania, terminal , his duties
consisted of,picking up merchandise and freight in and about York,
and in and about numerous other towns in the south central and
southeastern part of the State. of Pennsylvania. This merchandise
and freight, most of which was usually destined to go beyond the
borders.of the State of Pennsylvania, particularly to points in Mary-
land and the District of Columbia, would then be brought by him
to the York terminal and to other places in the 'State of Penn-
sylvania and there transferred to other of the respondent's trucks
to be transported to their ultimate destinations. His duties further
consisted of taking a load' of merchandise and freight from York
to Baltimore twice every week, making deliveries to various points
on the way. Returning from Baltimore, he would carry a full load
to York.
On August 9, 1936, Scholl joined Local No. 430. On August 22,
1936, Scholl was discharged by the respondent. On that day, D. H.
Brown, the respondent's general manager in charge of its York ter-
minal, called Scholl in and told him that he had learned that Scholl
was a member of the Union, and that he had had orders from his
main office to dispense with the service of all union men. Brown
also told Scholl that he had always been a good worker that but
for his membership in the Union he would still be employed, and
that he might be reinstated later if he would quit the Union.
Before his discharge Scholl earned approximately $22.00 per week.
During the three and one-half weeks immediately following his dis-
charge he was completely without work. Thereafter he secured
employment as a truck driver with another employer at an average
weekly wage of $13.00.
William, D. Lewis worked for the respondent as a truck driver
assigned to its Baltimore terminal. The record does not indicate
5727-37-vol. ti-37
564 NATIONAL LABOR RELATIONS BOARD
when he began working, for the, respondent : His regular duties
involved driving back and forth between Baltimore, Maryland, and
the District of Columbia. At the hearing he testified as follows :
"I would come in the morning, and load my truck, and go to Wash-,
ington' and deliver at. stops in Washington, and would pick up my
load and come back to Baltimore ." Occasionally, when the respond-
ent's York terminal was short-handed, he would drive his truck there
from Baltimore and help out.
On September 15, 1936, Lewis became a member of Local No. 355
and thereafter actively solicited 'memberships in that organization
among the respondent's, drivers. On several occasions during the
latter part of September, 1936 , Hurl Wilson, the respondent's gen-
eral manager in charge of the Baltimore terminal , informed Lewis
that,the respondent did not approve of Local No. 355 and that none
of-its employees would ever be allowed to join that organization.
Late in September, 1936, and early in October, 1936, the respond-
ent coerced its employees to sign certain contracts which it had pro-
posed to them during the early part of September and which they
had At that time voted not to accept., According to Lewis, these
contracts were individual anti-union or "yellow dog" contracts which
bomid.the signers to refrain from joining any union.
After completing his run from Washington, D. C., on Friday
evening, October 2, 1936, the afternoon of which day had been set
by the respondent as the dead-line for the signing of the afore-
mentioned contracts, Frank M. Hamby, the respondent' s vice-presi-
dent, called Lewis to his office and asked him whether he had already
signed, up.- When Lewis answered that he had not, Hamby dis--
charged him, stating, "Well, you know we don't allow no Union
workers on this, platform."
. Lewis had performed his duties in a satisfactory manner. The-
respondent never complained to him about his work. On more than
one occasion Hamby had complimented him for his good work in im-
proving business on his run. At the time of his discharge he was
earning approximately $22.00 per week., Since his discharge he has
earned approximately $30.00.
'At the time of his discharge, Scholl 'was the only driver working
for the respondent who was a member of-Local No. 430. He was told
by Brown that the reason for his discharge was his union membership.
Lewis as told as much' by Hamby at 'the time of his, discharge.
Furthermore,' Lewis' discharge -immediately followed his refusal to-
sign the, individual anti-union or "yellow dog" contract submitted
to him by the respondent. On the basis of the aforementioned find-
ings of fact it must be concluded that Scholl was discharged be-
cause he: was a member of `Local No. 430, 'and that Lewis was dis-
DECISIONS AND ORDERS 565
charged because he was a member of and active in Local No. 355, and
because he refused to sign an individual anti-union or "yellow dog"
contract,
By the discharge of Scholl and Lewis, the respondent has' discrim-
inated against its employees in regard to hire and tenure of em-
ployment, has thereby discouraged membership in Locals No. 355
and No. 430, and has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
IV. EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
As we said in In the Matter of Pennsylvania Greyhound Lines,
Inc., Case No. C-1, decided December 9, 1935 , (1 N. L. R. B. 1) :
"Interference with the activities of employees in forming or
joining labor organizations results in strikes and other forms
of industrial unrest which in the field of transportation have
the effect of impairing the safety and efficiency of the instru-
mentalities of such transportation. About 50% of the strikes
and lock-outs that occurred in the motor transportation in-
dustry from January, 1935, to July, 1935, inclusive, involving
32,732 employees and 162,721 man-days of idleness, arose over
the, issue of employee organization., It is common knowledge
that in the industrial scene numerous and prolonged strikes
have resulted from denial by employers of the rights now guar-
anteed by Section 7-and from their interference with employees
attempting to exercise such rights (1934) 39 Monthly Labor
Review No. 1, p. 75, Table 9). • The Board cannot be blind ' to
'such knowledge or fail to realize the disruption of commerce that,
results from such strikes and unrest. The motor 'transportation
industry has achieved an important place in the transportation
systems of this country and it is the desire of Congress to pre-
vent the interference with transportation and the impairment
of the safe and efficient operations of its instrumentalities that
results from such strikes and unrest. It is significant that, un-
like the parallel legislation in the railway field, there are no pro-
visions for collective bargaining and employee freedom of or-
ganization and representation in the recent Motor Carrier Act
of 1935, imposing federal regulation of iiiterstate motor trans-
portatioii.. The omission was succinctly explained on the floor of
the Senate by Senator Wheeler, • Chairman of the Committee on
Interstate - Commerce, on. the ground that the Wagner Act then
before Congress would, cover the field of, motor transportation
and that therefore such provisions need :hot -be:incorporated,in
566 NATIONAL LABOR RELATIONS BOARD
the Motor Carrier Act (Cong. Record, 74th Congress, 1st Session,
Vol. 79, p. 5887)."
On the basis of the experience in the motor carrier transportation
and other industries, we conclude that the respondent's conduct, and
each item of such conduct, burdens and obstructs commerce and tends
to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce, by impairing the ^ efficiency, safety and
operation of instrumentalities of commerce.
CONCLUSIONS OF. LAW
Upon the basis of the foregoing findings of fact, the Board makes
the following conclusions of law:
1. Locals No. 355 and No. 430 of the International Brotherhood
of Teamsters, Chauffeurs, Stablemen and Helpers of America are
labor organizations, within the meaning of Section 2, subdivision (5)
of the Act.
- 2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8, subdivision (1) of the Act.
3. By discriminating in regard to hire and tenure of employment,
thereby discouraging membership in Locals No. 355 and No. 430 of
the International Brotherhood of Teamsters, Chauffeurs, Stablemen
and Helpers of America, the respondent has enaaged in and is engag-
ing in unfair labor practices, within the meaning of Section 8, sub-
division (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
ORDER
On the basis of the findings of fact and conclusions of law, and
pursuant to Section 10, subdivision (c) of the Nationl Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent Tidewater Express Lines, Inc., its officers and agents,
shall :
1. Cease and desist :
(a) From discouraging membership in Locals No. 355 and No. 430
of the International Brotherhood of Teamsters, Chauffeurs, Stable-
men and Helpers of America, or any other labor organization of its
employees, by discriminating against its employees in regard to hire
and tenure of employment or any term or condition of employment;
(b) From in' any other manner interfering with, restraining, or
DECISIONS AND ORDERS 567
coercing its employees in the exercise of their rights to self -organiza-
tion, to form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the Na-
tional Labor Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Frank Scholl and William D. Lewis immediate, full,
and unconditional reinstatement to their former positions, without
prejudice to any rights and privileges previously enjoyed by them;
(b) Make whole Frank Scholl and William D. Lewis, and each of
them, for any losses of pay they have suffered by reason of their
discharge, by payment to each of them, respectively, of a sum of
money equal to that which each of them would normally have earned
as wages from the date of his discharge to the date of the respond-
ent's offer of reinstatement, computed on the basis of the average
weekly earnings of each for one month-immediately preceding such
discharge, less the amount earned by each from the date of his
'discharge ;
(c) Post notices to its employees in conspicuous places in its ter-
minal at Baltimore, Maryland, and in its terminal at York, Pennsyl-
vania, stating : (1) that it will cease and desist in the manner afore-
said; and (2) that such notices will remain posted for a period of
at least thirty (30) consecutive days from the date of posting.