Illinois-Ruan Transport Corp.

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment with the Union 51 Nor do I find that the Company foreclosed negotiation on any mandatory subject of collective bargaining nor that it insisted upon any non- mandatory subject52 Neither do I find that it withdrew any proposal when agree- ment appeared to have been reached and so indicated its predetermination not to execute a contract. I see no point in reviewing each and every article upon which agreement was reached to assay how much the Union may have given and how much the Respondent since the case is not resolvable on a point system. To ask the Board to sit in judgment of each thrust and counterthrust, to measure each pro- posal and counterproposal, and to appraise each challenge and rejoinder is to im- pose a task not only impractical but beyond the Board's authority under the statute as the Supreme Court so clearly stated in American National Insurance Company, supra. It was precisely this fear that the Board was acting as judge of what con- cessions an employer must make and of what proposals and counterproposals he may or may not make which led to the Taft-Hartley amendments and the enactment of Section 8(d).53 It is not for the Board to say what it deems fair and reason- able.54 As the Fifth Circuit said in N.L.R B. v. Herman Sausage Company, Inc., 275 F. 2d 229, 231: Deep conviction, firmly held and from which no withdrawal will be made, may be more than the traditional opening gambit of a labor controversy. It may be both the right of the citizen and essential to our economic legal system, thus far maintained, of free collective bargaining. The Government, through the Board, may not subject the parties to direction by compulsory arbitration or the more subtle means of determining that the position is inherently unreason- able, unfair, impracticable or unsound. In short, the proposition that the Board should sit at the bargaining table as arbiter or judge or that it should inhibit or restrain the freedom of the parties in negotiation has been rejected. Upon the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America. (UAW) AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in any unfair labor practices in violation of Sec- tion 8 (a) (1) and (5) of the Act. [Recommendations omitted from publication.] 51 See N L R B v Reed & Prince Manufacturing Company , 205 F 2d 131 (C A 1) 52 See N L R B v Wooster Division of Borg-Warner Corporation, 356 U S 342 63 N.L R B v United Clay Mines Corporation, 219 F 2d 120 (C A 6), citing American National Insurance Company, supra 61 N L R B v IBS Mfg Co et al , 21O F 2d 634 (CA 5) Illinois-Ruan Transport Corporation and Bernerd N. Lawrence Automotive, Petroleum and Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Bernerd N. Lawrence. Cases Nos. 14-CA-2307 and 14-CB-8415. July 18, 1961 _ DECISION AND ORDER - On March 6, 1961, Trial Examiner George L. Powell issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the Inter- 132 NLRB No. 26. ILLINOIS-RUAN TRANSPORT CORPORATION 217 mediate Report attached hereto. The Respondent Union, herein- after called Local 618; filed exceptions to the Intermediate Report, together with a supporting brief. 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 Inter- mediate Report, the exceptions and brief, and the entire record, and finds merit in the Respondent Union's exceptions. Accordingly, the Board adopts only those findings, conclusions, and recommendations of the Trial Examiner which are consistent with this Decision and Order. The complaint alleges, and the Trial Examiner found, that Re- spondent Company, herein called Ruan, unlawfully required its em- ployees to become and remain members of Local 618, the Respondent Union, and also unlawfully maintained a separate seniority roster for members of Local 618, in violation of Section 8(a) (1) and (3) of the Act. Further, the complaint alleges, and the Trial Examiner found, that Local 618, by causing or attempting to cause Ruan to commit the aforesaid discrimination, violated Section 8(b) (2) and (1) (A) of the Act. Unlike the Trial Examiner, we do not believe the evidence adduced by the General Counsel establishes the alleged unfair labor practices by either Respondent. Ruan is a common carrier, with trucking operations in both Illi- nois and Missouri. Within the Section 10 (b) period,' the record shows only that Respondents Ruan and Local 618 operated under a contract covering the terms and conditions of employment of Ruan's Missouri drivers, containing, inter alia, a valid union-security agree- ment. Ruan maintained a separate contract with another Teamsters local, 525, covering drivers in its Illinois operations. The parties stipulated to the authenticity of a document dated April 25, 1960, establishing separate seniority lists for the drivers represented by the two Teamsters locals, and Respondents readily admitted that they operate under an agreement and understanding, both contractual and otherwise, that "Local 618" men will be employed for Missouri de- liveries. However, Respondents testified without contradiction that, by "Local 618" men, they referred only to their contractual agree- ment, valid on its face, that drivers employed in the Missouri opera- tion join Respondent Local 618 no later than the usual 30-day period permitted by law. No drivers were in fact hired for the Missouri operations within the period covered by Section4l0(b). We find the above evidence establishes only that Respondents operate under a valid union-security agreement covering drivers in Ruan's Missouri operations, and is wholly insufficient to establish any unlawful dis- I Charges were filed and served May 2 , 1960 ; the Section 10(b) cutoff date is Novem- ber 2, 1959. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crimination by either Respondent within the 10(b) period. And al- though Ruan employees who are Local 618 members have obtained additional work through the operation of their separate seniority roster which the Charging Party, a member of Local 525, might oth- erwise have had, this is due to the effectuation of the lawful agree- ment between Ruan and Local 618, and not from any illegal hiring practice. Under the Supreme Court's decision in Bryan Manufacturing Com- pany,' when occurrences within the 6-month period preceding the charge may themselves constitute unfair labor practices, earlier events "may be utilized to shed light on the true character of matters occur- ring within the limitations period." 3 It is apparently the General Counsel's contention that earlier events may in this case shed light on Respondent's actions within the 10 (b) period. However, even if such events can be considered in the present case, we do not believe they establish any unlawful conduct by Respondents. The only evidence prior to the Section 10(b) period is that in 1954, a company other than Respondent Ruan 4-which company may or may not have been a legal predecessor to Ruan-contacted Local 618 when the earlier company's operations were extended to Missouri, and entered into an agreement similar to that now in existence between the Respondents. Of the three Missouri drivers hired by Ruan and/or the earlier com- pany between 1954 and 1959, only one was referred by Local 618. An- other was not at the time of hire a member of Local 618. Thus, even looking at this pre-10(b) evidence, which is remote in time, there is nothing to indicate that unlawful preference in hiring is or has been given to Local 618 members. As we do not find that Respondent Local 618 caused or attempted to cause Ruan to discriminate against employees in violation of Section 8 (a) (3), we shall reverse the Trial Examiner's finding of 8 (b) (2) and 8(b) (1) (A) violations, and dismiss the complaint as to Local 618. Moreover, since the same events form the substance of the allegations against Respondent Ruan, we shall also dismiss the 8(a) (1) and (3) allegations of the complaint against Ruan,1 even though no exceptions have been filed to the Trial Examiner's findings against Ruan [The Board dismissed the consolidated complaint.] MEMBER RODGERS took no part in the consideration of the above Decision and Order. 2 Local Lodge No. 1424, International Association of Machinists, AFL-CIO , et at. v. NLRB., 362 U. S 411. 3 Ibid. at p. 416 A Respondent Ruan was not in existence as an interstate carrier until March 15, 1956. 5 Cf. G A Rafel and Co , 131 NLRB 1191 9 See Kramer Brothers Freight Lines, Inc, 130 NLRB 36, footnote 4; William Bahr, at at, d/b/a Hamilton News Co., 129 NLRB 770. We likewise do not adopt the Trial Examiner's apparently inadvertent 8(a) (2) finding, as no violation of that section was either alleged in the complaint or litigated at the hearing ILLINOIS-RUAN TRANSPORT CORPORATION 219 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding began with the filing of two charges , one against Illinois-Ruan Transport Corporation' and the other against Automotive, Petroleum and Allied Industries Employees Union , Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America .2 Both were filed on May 2, 1960, by an individual, Bernerd N . Lawrence ; both were amended on June 10, 1960, and, with all parties represented, both were heard before the duly designated Trial Examiner in St. Louis, Missouri , on July 18, 1960, on consolidated complaint of the General Counsel and answer of Respondent Corporation and Local 618. The issue is whether Local 618 did require Respondent Corporation's employees to become and remain members of Local 618 ; and did require the Respondent Corpo- ration to maintain a separate seniority list for members of Local 618 as a condition of the Respondent Corporation's doing business within the geographical jurisdiction of Local 618; and did require clearance from Local 618 for use of its employees. A brief was filed only by the General Counsel . Motions to strike were made by both party Respondents at the conclusion of the General Counsel's case and at the con- clusion of the hearing. Ruling on these motions was reserved and the motions are disposed of in accordance with this report. Upon the entire record in this case, including the brief of the General Counsel, and from my observation of the demeanor of the witnesses while testifying, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT CORPORATION Respondent Corporation is an Illinois corporation engaged in the interstate truck- ing service business, having its main office in the city of Wood River, Illinois. In the course and operation of its business , it anually performs trucking services valued in excess of $50,000 outside the State of Illinois , and has gross revenue in excess of $500,000. Its operations extend in part from its place of business in Illinois into the State of Missouri. I find Respondent Corporation to be engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended , herein called the Act. II. THE LABOR ORGANIZATION INVOLVED Local 618 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The events Respondent Corporation is a common carrier, employing some 45 drivers and operating some 30 trucks from its sole physical installation in Wood River, Illinois. All trucks and facilities are maintained and serviced there As background information , evidence was adduced at the hearing that prior to 1954, Respondent Corporation was only operating in Illinois and had a contract with Local 525 of the Teamsters covering all of its drivers. In 1954 it procured its first business for pickup and delivery in Missouri . Rose, Respondent Corporation's ter- minal manager, credibly testified that he arranged a meeting with Joe Baker, assistant business representative of Local 618, because , as he , explained it, he was aware of the practice of his competitor's giving Local 618 some of the Missouri work in order to prevent being "run out of business ." Rose explained to Baker at a meeting that Respondent Corporation was going to start hauling within the St . Louis, Missouri, commercial zone "and that we wanted to get rights , sign a contract whatever was necessary to have the business.", Baker described the meeting as follows: ".. . and they [Respondent Corporation] were going to run definitely in Missouri and they [its employees ] would be our people due to the fact that they are on this side of the river, the Missouri side." 3 IHerein called Respondent Corporation. 2 Herein called Local 618. s Baker was an extremely evasive witness Although he finally did indicate that the geographical jurisdiction of Local 618 was the State of Missouri and that Local 525's jurisdiction was across the Mississippi River In Illinois, he appeared to be very reluctant 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rose could not recall whether Baker called him first, but did recall that Baker re- quested him to employ a Local 618 driver after Rose had told him he was going to do business in Missouri. The testimony on this point is of interest: Q. But this much is clear that after you did meet with Mr. Baker and had some meetings with him, you do recall that he requested you to employ a Local 618 driver after you indicated to him you were going to do business here in Missouri? A. I believe that is right. I was presented with the contract which takes on itself the fact that you are going to employ a 618 driver. The contract was signed and driver Milson of Local 618 was hired. A seniority list was prepared which shows, as of April 25, 1960, two columns of employees. One column lists members of Local 525 and the other column lists members of Local 618. In the column for Local 618 , Milson appears as No. 1 and still remains as No. 1. According to the credited testimony of Rose, the effect of this separate seniority list was to assure Milson with a full week's work every week as long as Respondent Corporation had any Missouri business and as he said, "We always have some work, pick-ups and deliveries, within the St. Louis commercial zone." Accord- ingly, if there was a business at all in Missouri by Respondent Corporation, Milson would get that work regardless of whether other drivers had work yet they may have had more seniority than Milson. In addition to the contract, there was an understanding between Rose and Baker and the business agent of Local 525 that as long as Respondent Corporation made pickups and deliveries in St . Louis, it would maintain at least one man of Local 618 as an employee. In situations when Milson would be on vacation or ill or unable for any other reason to work and it would be necessary for Respondent Corporation to use a Local 525 driver to pick up and deliver in Missouri, Respondent Corporation would have to get clearance from Baker or someone else at Local 618 to use the Local 525 man. These conditions exist today according to the admission of Baker. He admitted making a statement to Board Attorney Tilley during the investigation that "actually if Bernerd Lawrence is successful in having Milson transferred from Local 618 to Local 525, it will not benefit Lawrence, the only effect would be to cause [Respond- ent Corporation] to cease doing business on the Missouri side of the river or to put in another Local 618 man." At one time three members of Local 618 were hired by Respondent Corporation and put on the separate seniority list for Local 618. They were Milson, Alexander, and Lantzy. Rose credibly testified that when the business they anticipated in Missouri did not fulfill its expected promise, he changed Lantzy from Local 618 seniority over to Local 525 because as he said, "We felt we didn't have enough work to have three men in Local 618 and we transferred him, had him transfer into Local 525 so that he could do some work within the State of Illinois." Rose credibly testified as follows with respect to the hiring of both Alexander and Lantzy: Alexander was the first man after Milson. We had need for additional men or [an] additional man in St. Louis. We had, by that time, built up some business out of Jefferson Barracks to probably 30 or 40 service stations and one man couldn't handle them, so we had a man by the name of Alexander, who was a dispatcher who wanted to go back driving. We sent him over to Local 618 and he made application with 618 and became a member and drove on the Missouri side for us. Lantzy was actually a part-time driver. He was a member of 618, not referred to us by the Union but referred to us by Ruddy Milson; . and Milson suggested to me when Alexander was off sick or something that this was a good man and belongs to 618 and he can serve in their place. With that in mind I•took him on. With respect to what is meant by the term "618 men," Baker was asked by Attor- ney Armbruster for Local 618: Q. There has been used by your testimony and there has been used by Gen- eral Counsel and I believe by Mr. Rose, the expression "618 man." Do you mean by that a 618 member or employee represented by 618? A. I don't know, that is not real clear . . . I think what, my interpretation of what you said was this, that is a guy who would have to be a member of 618 to get the job or to go to work for the Company. to discuss what he later admitted to be the understanding between himself and Rose I credit Baker where his testimony is not inconsistent with that of Rose and when it appears to be an admission against his interest. ILLINOIS-RUAN TRANSPORT CORPORATION 221 It is clear that at the present time there is this arrangement whereunder a mem- ber of Local 618 has greater seniority than a member of Local 525 when it comes to driving in the State of Missouri. In fact, without prior permission a Local 525 employee cannot work in Missouri. There is credited testimony that the contract is thusly interpreted and enforced as of the present time. It is likewise clear that Respondent Corporation could not transact its business in Missouri without employing members of Local 618 to do the required work. This private toll gate was deliberately put at the State line. Failure to do business with Local 618 meant a failure of business in Missouri. The assistant business agent, Baker, of Local 618 admitted, in a conversation relating to the Charging Party's attempt to get Milson transferred from Local 618 to Local 525, that Respondent Corporation would either quit doing business on the Missouri side of the river or "put in another Local 618 man." This type of union control over the hire of em- ployees has been illegal over 13 years since November 1947, the effective date of the so-called Taft-Hartley Act, referred to herein as the Act. Section 10(b) Defense Both Respondent Corporation and Local 618 moved to dismiss the complaint on the grounds that the charge was not timely filed with respect to Section 10(b) of the Act. This was based, apparently, on the fact that the original contract and the original practice was entered into more than 6 months prior to the filing of the charge. I find no merit to this position inasmuch as it is clear that it is a present practice which is violative of the Act which practice was timely with respect to the filing of the charges in this case. B. Conclusions The above facts amply support the allegations of the General Counsel in the com- plaint and extensive discussion is needless. The Board has consistently held that a union and an employer violate Section 8(b)(2) and 8(a)(3), respectively, by being parties to an understanding or practice that requires expressly or in effect that preference in hiring be given to the contract- ing union's members, that union clearance be obtained as a condition of employ- ment, or that otherwise establishes hiring practices which result in closed-shop con- ditions. The maintenance of such an understanding or practice, regardless of whether specific discrimination occurs, has been held to have the inevitable effect of unlawfully encouraging membership in the union. The law is likewise clear that the existence of such an understanding or practice may be established by the party's conduct. I find from the evidence above that at the present time there is this illegal understanding evidenced by the party's conduct and accordingly both Respondents have violated the Act in the stated provisions.4 As a union also may be found to have violated Section 8(b)(1)(A) by being party to such a discriminatory hiring arrangement and practice, I find that Local 618 violated Section 8(b) (1) (A) of the Act. In conclusion, I find that Respondent Corporation and Local 618 violated Sec- tion 8(a)(1) and (3) and 8(b)(1)(A) and (2), respectively, and in order to effectuate the policies of the Act, I will recommend the remedy, as follows in another section. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Corporation and Local 618 set forth in section III, above, occurring in connection with the operations of the Respondent Corporation described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing the free flow of commerce. V. THE REMEDY Having found that the Respondent Corporation and Local 618 have engaged in unfair labor practices, the Trial Examiner will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the parties have an unlawful arrangement. It will be recommended that they cease and desist from so interpreting their contract, and from maintaining separate seniority lists based upon membership or lack of mem- bership in Local 618. 'International Union of Operating Engineers, Little Rock. Local 982-i824, 4FL-Ck0 (Armco Diainage & Metal Products . Inc ), 123 NT,RB 1833, enfd 279 F 2d 951 (C.\ 8). 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 618 is a labor organization within the meaning of Section 2(5) of the Act. 3. By its conduct described above in section III, the Respondent Corporation has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1), (2 ), and (3 ) of the Act. 4. By its conduct described above in section III, Local 618 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the Act. [Recommendations omitted from publication.] Crystal Laundry and Dry Cleaning Company and Sales Drivers, Sales & Service Local 176, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case No. 9-CA-2161. July 19, 1961 DECISION AND ORDER On December 14, 1960, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report at- tached hereto. Thereafter, the General Counsel and Respondent filed exceptions to the Intermediate Report, and the Respondent also filed a supporting brief. 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 In- termediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner, but only to the extent consistent with our Decision herein. 1 The Respondent excepted to the Trial Examiner's finding that Respondent was en- gaged in commerce within the meaning of the Act We find no merit in this exception The record discloses that Respondent , which operates a retail laundering and dry cleaning enterprise in Dayton , Ohio, made gross sales in excess of $600 ,000 for the 12-month period preceding the hearing , and had an indirect Inflow from points outside the State of Ohio during the same period in excess of $18,000 . Accordingly, we find that the Respond- ent is engaged in commerce and that it will effectuate the policies of the Act to assert jurisdiction over it. See Carolina Supplies and Cement Co, 122 NLRB 88. The General Counsel also excepted to the Trial Examiner 's failure to find that Re- spondent violated Section 8 (a)(1) of the Act by Respondent President Schryver's state- ment to employees that "he would close the place down and rent the place out for stor- age" before he would allow the Union to represent his employees Even assuming, as did the Trial Examiner, that Schryver made this remark , we concur in the Trial 132 NLRB No. 19.