Hayes Freight Lines, Inc.

984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to re- frain from any and all such activities. 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 or union. ARTISTIC EMBROIDERY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must Iemain 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, 112 East Cass Street, Tampa, Florida, 33602, Telephone No. 223-4623, if they have any question concerning this notice or compliance with its provisions. Hayes Freight Lines, Inc. and James W. Flannigan. Case No. 7-CA-3819. June 7, 1963 DECISION AND ORDER On March 27, 1963, Trial Examiner Thomas N. Kessel 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. There- after, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 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 Leedom]. 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, and the entire record in this case, including the excep- tions and the brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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 complaint herein be, and it hereby is, dismissed. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed July 18, 1962, and an amended charge filed September 4, 1962, by James W. Flannigan, an individual, against Hayes Freight Lines, Inc., 142 NLRB No. 110. HAYES FREIGHT LINES, INC. 985 herein called the Respondent, the General Counsel of the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the Seventh Region, issued his complaint dated October 12, 1962, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and ( 1) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. The Respondent's answer denies the allegations of unlawful conduct in the complaint. Upon notice of hearing duly served upon the parties a hearing was held at Detroit, Michigan, on January 28 and 29, 1963, before Trial Examiner Thomas N. Kessel. All parties were repre- sented by counsel . Full opportunity to be heard , to examine and cross-examine witnesses, and to introduce evidence was afforded all parties. At the close of the hearing the parties signified their intention not to file briefs. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE LABOR ORGANIZATION INVOLVED Local 299, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Ind., herein called the Union, is a labor organization ad- mitting to membership the employees of the Respondent. II. PERTINENT COMMERCE FACTS The complaint alleges and the answer admits that: the Respondent is an Illinois corporation with its principal office and place of business in Winston-Salem, North Carolina; the Respondent maintains and operates other places of business and ter- minals in various States to haul steel and other products by motor carrier subject to the rules and regulations of the Interstate Commerce Commission; during the year ending December 31 , 1961 , the Respondent in the course of its business operations performed services valued in excess of $1,000,000 of which revenues exceeding $500,000 were derived from the transportation of commodities between States. The Respondent concedes and I find from the foregoing facts that it is engaged in inter- state commerce and that it will effectuate the policies of the Act to assert jurisdiction over its business in this proceeding. III. THE ALLEGED UNFAIR LABOR PRACTICES The General Counsel contends that in reprisal for Charging Party Flannigan's activities as steward for the Union the Respondent unlawfully discharged him in violation of the Act. This assertedly was deviously accomplished by the Respond- ent's closing on April 13, 1962, of its freight terminal in Detroit where Flannigan had been employed, the simultaneous layoff of all employees at this terminal includ- ing Flannigan, the termination of the employment relationship with these employees on April 23, 1962, and a subsequent refusal to employ Flannigan at any of its ter- minals throughout its system. The Respondent concedes the closing of the Detroit terminal but maintains it was necessitated by lawful economic reasons having noth- ing to do with Flannigan's activities as steward and denies any refusal to employ him subsequent to the closing of the terminal. The Respondent attributes Flannigan's failure to receive employment thereafter to the fact that he did not apply for work. The Respondent's freight-hauling business is conducted from terminals in various States. Each terminal appears to be run by a terminal manager who, according to the Respondent, is in some cases its employee and in others an independent con- tractor. Whatever dispute there is in the case concerning the status of these managers need not be resolved as it is immaterial to the findings and conclusions herein. The trucks which do the hauling are leased by the Respondent from their owners and these persons, where they drive their equipment, become the Respondent's employees by the provisions of the leases. Flannigan was such a truck owner and driver operating out of the Respondent's Detroit terminal. From 1957 or 1958 he served as the steward for the Union which represented the Respondent's owner-drivers at this terminal. Flannigan related that in the course of his stewardship he had filed four or five grievances during 1961 and 1962 on behalf of the Detroit drivers. Included in these grievances were complaints involving monetary claims by the drivers against the Respondents One complaint related to a $4 service charge deducted by the Re- spondent from the drivers' pay over a period of approximately 4 years which Flanni- gan estimated in his own case came to about $1,500. Another pertained to the Respondent's deductions from their earnings for "unfair damage claims" and "pro rate plates." The record does not reveal the precise nature of these complaints, but 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the context of this case such omission is inconsequential. One complaint was over the Respondent's unilateral reduction in 1961 of the payment to the drivers from 75 percent to 73 percent of gross revenue.' There was also a complaint about taking out "unnecessary bonds on drivers." The full meaning and implication of this matter also is not revealed by the record but this also is not consequential in the case. Flannigan conceded his poor memory for dates of specific events. The record is somewhat uncertain as to the exact dates when he first filed formal grievances in 1961 or when the actions occurred which precipitated their filing. For purposes of the case, however, it is sufficient to state, in accordance with my findings derived from Flannigan's testimony, that in the summer of 1961 the Respondent sought new leases from its drivers in which their revenues were reduced from 75 to 73 percent of gross. While the Detroit drivers expressed their dissatisfaction with this arrange- ment to Flannigan and it was agreed by them in a meeting not to sign these leases, all except Flannigan and one other driver, Jewel Brewer, capitulated and signed leases. Flannigan and Brewer also signed when they realized they alone could not successfully oppose the Respondent's action. Flannigan thereupon filed a grievance in August 1961 complaining that the Respondent should not have presented the new leases to the drivers without prior discussion of its terms with them. The above- listed complaints were also included in this grievance. Subsequently, meetings were held to discuss the grievance in September and November 1961. Paul H. B. Reich, the Respondent's general manager of special commodities, headquartered in Chicago, appeared for the Respondent. Apparently no satisfactory conclusion was reached by the parties at these meetings. Another session, with Reich again in attendance, took place in Detroit on February 10, 1962. Reich requested and was granted 10 days to discuss the matters at issue with the head of the Respondent to see what could be accomplished. Because the grievance originally filed by Flannigan was claimed by the Respond- ent's and the Union's representatives at the February 10 meeting to have been lost Flannigan filed another grievance on February 16. Thereafter another meeting was held in Detroit on March 19 with Reich once more present. Again he asked for and received 10 days to work out a solution. At the end of this period, nothing having been accomplished, Flannigan demanded that the Union's business agent seek another meeting with a representative of the Respondent present who had greater authority than Reich to settle grievances. On April 11 or 13 a meeting was held in Detroit attended by Reich and Rex Sprenkle for the Respondent. Sprenkle works under the Respondent's vice president in charge of operations at its principal office in Winston-Salem, North Carolina. Flannigan testified that Sprenkle declared at this meeting that the Respondent would have to close the Detroit terminal because it was not making enough money. He directed the Respondent's attorney, Victor Schaeffner, to handle the drivers' grievances and to arrange for payment to them of any money to which they might be entitled. The Union's business agent, Rolland McMasters, asked whether the drivers could be placed at the Respondent's other terminals in its system. Sprenkle informed him that there was no present need for them. McMasters reminded him of Flannigan's special seniority as steward which required that he be rehired before anyone else. Sprenkle responded that the drivers would be placed if needed. By letters dated April 13, 1962, Flannigan and the other Detroit drivers were notified by the Respondent that they were laid off because of "economic factors" and that their leases were canceled "today, effective April 23." This latter notice was described by Flannigan as a 10-day grace period allowed by the Respondent to the drivers to enable them to secure other employment. He testified that during this period he and driver Brewer applied at the Respondent's Louisville, Kentucky, termi- nal for work and were informed by Manager Lucien Rankin he had orders from Chicago not to load them. Ostensibly the reference was to the Respondent's Chicago offices. Flannigan further testified that about May 1 he called the Respondent's New Brighton, Pennsylvania, terminal manager, George Shalcross, and asked for a freight haul but was told Chicago had ordered that the Detroit terminal men not be loaded. He claimed that in mid-May he requested work and received the same reply from Warren L. Richardson, the Respondent's Cleveland terminal manager. To show the Respondent's concern about the grievances filed and pressed by Flannigan and the animus incurred by him for these activities, as a circumstance re- flecting discriminatory intent, Flannigan testified that at the March 19, 1962, meeting Reich offered him a plum, a lucrative ammunition haul, provided he drop the I Flannigan's testimony that the reduction was to 72 percent is erroneous HAYES FREIGHT LINES, INC. 987 grievances . Flannigan spurned the offer, particularly as Reich had also stated the other drivers would have to look out for themselves . Flannigan maintained it was well known there was no love lost between him and Reich presumably because of Flannigan's activities as steward . The seriousness with which the Respondent re- garded the grievances is revealed by Flannigan's testimony that Reich had told him at one of the meetings in November or February that the Respondent would close the Detroit terminal before "they could pay those grievances" and that "if the griev- ances wasn't settled there before he could pay us men any money the terminal would have to be shut down; he was going to shut it down ." Flannigan acknowledged that Reich had explained that "with the financial condition of the terminal being what it is and with these grievances , they didn't know how long they could keep it open." Along the same line Emerson Koebbe, the Detroit terminal manager at the time of the events in question, testified that Reich had told him on April 13 as he drove him to the grievance meeting that if there were a continuation of his trips to Detroit for such meetings the Respondent would not be able to keep the terminal open. Later that day Reich informed him of the Respondent 's decision to close the terminal be- cause of the limited revenues and operating costs "under those conditions." According to Reich, the Detroit terminal was closed because it was not sufficiently profitable for the Respondent to keep it open . He conceded that the time and expense of his several trips to Detroit to discuss the grievances were a factor considered with the terminal's small and declining revenues in the Respondent 's decision to close it. He testified the Respondent's profit from the terminal ranged from $300 to $600. I assume this was annual profit although the record does not specify. After the terminal closed the customers serviced from this point were handled from the Respondent's Toledo terminal with elimination of some expense . Reich categorically denied there were any other reasons for closing the terminal . He did not, he said, instruct the managers of the Respondent's other terminals to refuse employment to Flannigan. The latter has not received employment, Reich maintained, simply because he did not apply for it. He would receive employment now if only he were to request it. Employment was not denied the other Detroit drivers. Each was told he would be welcomed back when needed and all five drivers who applied for employment have been hired and redomiciled at or near the Respondent's other terminals. Shalcross, the Beaver Falls terminal manager, denied he was instructed by the Respondent not to load the Detroit drivers or that he had ever told Flannigan he had been ordered not to load him. Contrary to Flannigan's claim that he had not been loaded during the period between April 13 and 23, Shalcross testified that he had given him a load on April 17 to deliver from Beaver Falls to Middletown , Kentucky. Documentary evidence introduced at the hearing conclusively showed this to be the fact. Richardson, the Cleveland terminal manager, and Rankin, the Louisville termi- nal manager, also denied telling Flannigan they had been ordered by the Respondent not to load him or other Detroit drivers. Both testified they had never received such instructions from the Respondent . Richardson further testified that Flannigan had not after the close of the Detroit terminal requested any loads from him. Rankin revealed that three of the Detroit drivers now work at his terminal. I am not persuaded that the Respondent closed the Detroit terminal in order to get rid of Flannigan and subsequently refused to employ him because of his ac- tivities as steward for the Union. It is clear that the grievances filed by him were troublesome to the Respondent and created monetary problems for it which in- fluenced its decision to close the terminal. I am, however , satisfied that this was done not in reprisal for Flannigan 's activities and to eliminate him as a source of future annoyance, but because, as Reich testified , the Respondent's officials felt that maintenance of the terminal under the prevailing circumstances was not economi- cally justified. Without reflecting on Flannigan's integrity as a witness I reject his testimony that he was told by Terminal Managers Shalcross, Richardson, and Rankin that Chicago had ordered them not to give work to the Detroit drivers and in particular not to employ him. I credit their contrary testimony. Flannigan may sincerely believe he was told these things because of his tendency which I noted in his testimony to assume as fact what he believes must be true. He was obviously mistaken about his claim not to have received work from the Respondent in the period from April 13 to 23 for, as the record clearly shows, he hauled a load from Beaver Falls on April 17 which he obtained from Shalcross. His failure to receive the employment from the Respondent which five of the Detroit drivers have obtained since the closing of the terminal is attributable to his acknowledged refusal to request work from the Respondent. It is not, as I have analyzed the record, attributable to the Respondent's unlawful refusal to employ him 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Hayes Freight Lines , Inc., Winston-Salem, North Carolina, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 299, International Brotherhood of Teamsters , Chauffeurs, Warehouse- men, Helpers of America, Ind., is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act have not been sustained. RECOMMENDATION It is recommended that the complaint be dismissed in its entirety. American Hard Rubber Company, a Division of Amerace Cor- poration and Independent Hard Rubber Pipefitters and Inde- pendent Hard Rubber Tool & Die Workers and Machinists and Independent Hard Rubber Millwrights and Independent Hard Rubber Carpenters and Independent Hard Rubber Elec- tricians, Petitioners. Cases Nos. 8-RC-4540, 8-RC-4541, 8-RC- 4542, 8-RC-4543, and 8-RC-1544. June 7, 1963 DECISION AND ORDER Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, a consolidated hearing was held before Bernard Levine, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer.' 3. For the following reasons we find that no questions exist concern- ing the representation of employees of the Employer. The Intervenor has represented the production and maintenance employees of the Employer since 1936 2 The Petitioners seek to sever from that unit five units of alleged craftsmen who work in the Em- ployer's maintenance department. We deny the requests because, in 1 Local No. 15, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL- CIO, herein called the Intervenor, was permitted to intervene at the hearing. The record indicates that the separate Petitioners herein were established after the Board's unpublished decision in an earlier proceeding involving this Employer (Case No. 8-RC-3538, December 21, 1959 ). They exist for the purpose of dealing with the Em- ployer concerning the wages , hours, and terms and conditions of employment of the types of employees stated in their names . We find that they are labor organizations within the meaning of the Act. 2 Prior to 1950 this unit included powerhouse employees who, since then, have been rep- resented by Local 821 , Operating Engineers . In 1957 the Employer became, as it now is, a division of Amerace Corporation, but this did not change the representation of the employees. 142 NLRB No. 116.