Mid-State Trucking Service

\MID-STATE TRUCKING SERVICE 647 or to perform any service , where an object thereof is to force or require said employer to cease doing business with Fairway Farms, Inc. LOCAL 584, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. 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, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No. Tl. 6-1782, if they have any question concerning this notice or compliance with its provisions. Mid-State Trucking Service and Chauffeurs, Teamsters & Help- ers, Local #431, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 20-CA-2393. March 00, 1963 DECISION AND ORDER On January 4, 1963, Trial Examiner Howard Myers issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent 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 Intermedi- ate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. The General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. 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 Intermedi- ate Report and the entire record in the case, including exceptions and briefs, and hereby adopts the findings, conclusions, and recommenda- tions 1 of the Trial Examiner with the exception noted below 2 1 For the reasons stated in his dissenting opinion in Isis Plumbing & Heating Co., 138 NLRB 716, Member Rodgers Is convinced that the award of interest in this case exceeds the Board's remedial authority. While adhering to such view, for the purpose of this decision he is acceding to the majority Board policy of granting interest on money due. 2 The cease-and-desist provisions of the Recommended Order are to be amended as follows : (1) By omitting in paragraph (b) the word "Discouraging." ,(2) By adding a new paragraph (c) reading as follows "Discharging or other- wise discriminating against an employee because he has filed charges or given testi- mony under the Act." 141 NLRB No. 52. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner as modified herein. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and amended charge duly filed on August 20, 1962, and October 12, 1962,1 respectively, by Chauffeurs, Teamsters & Helpers, Local #431, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, herein called the Union , the General Counsel of the National• Labor Relations Board, herein respectively called the General Counsel 2 and the Board, through the Regional Director for the Twentieth Region (San Francisco, California ), issued a complaint, dated October 23 , against Mid-State Trucking Service, herein called Respondent, alleging that Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (4) and Sec- tion 2(6) and (7) of the National Labor Relations Act, as amended from time to time, 61 Stat. 136, herein called the Act. Copies of the charges and the complaint , with notice of hearing thereon, were duly served upon Respondent and copies of the complaint and notice of hearing were duly served upon the Union. The complaint alleged , in substance, that Respondent, acting through designated agents named in the complaint , interfered with, restrained; and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by engaging in certain stated acts and conduct; that on or about August 3 Respondent constructively dis- charged Edward B. Moxley because he had filed grievances with the Union against Respondent ; that on or about August 9 Respondent offered to reinstate Moxley and employee William Glenn , then on layoff status, if said employees would refrain from filing grievances with the Union; and since August 31 Respondent has failed to reinstate Moxley because of his activities in causing the Union to file the charge in this matter on his behalf. Respondent filed no answer. Pursuant to due notice, a hearing was held on November 26 at Fresno , California, before Trial Examiner Howard Myers Each party was represented by counsel. At the opening of the hearing Respondent's counsel moved to adjourn the hearing until 1 o'clock that afternoon in order to allow him an opportunity to investigate the facts in this matter and to file a written answer. The General Counsel then moved for summary judgment in accordance with Section 102 .20 of the Board's Rules and Regulations , Series 8. After hearing oral argument by the General Counsel and by Respondent's counsel, the motion for summary judgment was granted and the hearing closed. In accordance with the Rules and Regulations of the Board , Section 102.20, Series 8 , I deem true ' the allegations of the complaint herein and make the following - FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF RESPONDENT Mid-State Trucking Service is a California corporation with its main office and principal place of business located at Fresno, California . It is engaged in the trucking business. During the year immediately preceding the issuance of the complaint , Respondent performed services valued in excess of $100,000 at Lemoore Naval Air Station, California, which services had a substantial impact on the national defense, and during that same period in the course and conduct of its business operations it per- formed services valued in excess of $150,000 for construction on U.S. Highway 99, an interstate highway, and an essential link in the channels of interstate commerce. Respondent is, and has been at all times material , an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 1 Unless otherwise noted, all dates herein mentioned refer to 1962 a This terns specifically includes counsel for the General Counsel appearing at the hearing. MID-STATE TRUCKING SERVICE II. THE LABOR ORGANIZATION INVOLVED 649 Chauffeurs, Teamsters & Helpers, Local #431, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, is a labor organiza- tion within the meaning of the Act and admits to membership employees of Respondent. III. RESPONDENT'S AGENTS At'all times material herein, Milton R. Loyd, president, and William Cozine, vice president, have been and are agents of Respondent acting on its behalf and are supervisors within the meaning of Section 2 (11) of the Act. IV. THE UNFAIR LABOR PRACTICES On or about August 3, Respondent, acting by and through its officers, agents, and representatives, and particularly by President Milton R. Loyd and Vice President William Cozine, constructively discharged employee Edward B. Moxley because he filed grievances with the Union against Respondent. On or about August 9, Respondent, acting by and through its officers, agents, and representatives, particularly by President Milton R. Loyd, offered to recall to work Edward B. Moxley and employee William Glenn, then on layoff status, if said employees would refrain from filing grievances with the Union. Since on or about August 31, Respondent, acting by and through its officers, agents, and representatives, has failed to reinstate Edward B. Moxley because of his activities in causing the Union to file the charge in this matter on his behalf V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section IV, above, occurring in connec- tion with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and substantially affect the national defense. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Chauffeurs, Teamsters & Helpers, Local #431, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. Respondent Mid-State Trucking Service, Fresno, California, is engaged in commerce within the meaning of the Act and its operations meet the standards set by the Board for the assertion of jurisdiction. 3. By engaging in the conduct described above Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (4) of the Act. 4. By engaging in such conduct and interfering with , restraining , and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Re- spondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of said findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that Respondent, Mid-State Trucking Service, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Chauffeurs, Teamsters & Helpers, Local #431, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by discriminatorily discharging any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. (b) Discouraging, interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2 Take the following affirmative action which is necessary to effectuate the policies of the Act: 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer to Edward B. Moxley and William Glenn immediate and full reinstate- ment to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges. (b) Make whole said Edward B. Moxley and William Glenn for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which he would have normally earned as wages from the date of discrimination to the date of Respondent's offer of reinstatement, less his net earnings during such a period. The backpay shall be computed and paid in the manner established by the Board,3 and Respondent shall make available to the Board its payroll and other records to facilitate the determina- tion of the amounts due. Interest at the rate of 6 percent per annum shall be added to backpay to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (c) Post at its place of business in Fresno, California, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the Respond- ent or its duly authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twentieth Region, in writing, within 20 days of the receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply therewith .5 $F W. Woolworth Company, 90 NLRB 289. 4 In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." a In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Chauffeurs, Teamsters & Helpers, Local #431, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or in any other labor organization, by discharging any of our employees because of their concerted or union activities, nor will we condition employment on the cessation of those activities, or in any other manner discriminate in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT discriminate against employees because they have had charges filed in their behalf under the Act. WE WILL NOT in any manner interfere with , restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Chauffeurs, Teamsters & Helpers, Local #431, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of 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 Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Edward B. Moxley and William Glenn immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and will make them INDIANA READY MIX CORPORATION 651 whole for any loss of pay incurred as a result of their discharge with interest thereon at 6 percent per annum. All our employees are free to become or remain members of the above-named Union or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. MID-STATE TRUCKING SERVICE, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions, they may, communicate directly with the Board's Regional Office, Room 703, 830 Market Street, San Francisco, California, Telephone No. Yukon 6-3500, Extension 3191. Indiana Ready Mix Corporation and Coal, Ice, Building Mate- rial, Supply Drivers, Heavy Haulers, Warehousemen and Helpers, Local Union No . 716, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Case No. 25-CA-1535. March 00, 1963 DECISION AND ORDER On September 6, 1962, Trial Examiner C. W. Whittemore 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 attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report and 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 Intermedi- ate Report and the entire record in this case, including the exceptions and brief, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. Unlike our dissenting colleagues, we agree with the Trial Examiner's conclusions that the Union did not make an unconditional applica- tion for reinstatement on behalf of the strikers, and therefore that Re- spondent was under no legal obligation to reinstate the strikers and did not violate Section 8(a) (1) and (3) by not accepting the Union's application. The essential facts on this issue are as follows : On August 10, 1961, Respondent, a newly formed corporation, took over the business of 141 NLRB No. 54.