Roadway Express, Inc.

ROADWAY EXPRESS, INC. 43 WE WILL offer Gary C. Bronsart , John R. Murphy, Mary Weber, Edith Shibla, and Esther Bushay immediate and full reinstatement to their respective former, or substantially equivalent, positions, without prejudice to their seniority and other rights and privileges , and reimburse them for any loss of pay they may have suffered by reason of the fact that we discriminated against them. SCIENTIFIC GLASS APPARATUS CO., INC., Employer. Dated- ------------------ By------------------------------------------- (Representative ) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion 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. Information regarding provisions of this notice or compliance with its terms may be secured from the Regional Office of the National Labor Relations Board, 849 South Broadway, Los Angeles, California, Telephone No. 688-5204. Roadway Express, Inc. and Charles Dalton Local 299, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Ind. and Charles Dalton. Cases Nos. 7-CA-4429 and 7-CB-1143. December 14, 1964 DECISION AND ORDER On April 8, 1964, Trial Examiner Thomas S. Wilson issued his De- cision in the above-entitled proceeding, finding that Respondents 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 his attached Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision with a supporting brief, and both Respondents filed briefs in support of the Trial Examiner's Decision. 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 [Chairman McCulloch and Mem- bers Leedom and Jenkins]. 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 Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent that they are consistent herewith. Respondent Union, Local 299, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Ind., rep- resents employees at the Taylor, Michigan, facility operated by Re- 150 NLRB No. 14. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent Company, Roadway Express, Inc. The Union admits into membership only those persons who, at the time they make applica- tion, are already employed in a shop within the Union's jurisdiction. The reason for this policy was expressed by a union official as follows : We have a lot of fellows laid off in the automobile industry and kids getting out of school, they come down [to the Union hall] and they believe they can make application to the union and say they have a job when they don't have a job and in some way they get a union book, and then they hang around the hall and hear about jobs and attempt to get a job against fellows that do come down there and try to get a job from day to day. This case involves two high school students, Charles and Ray Dalton, who in August and October of 1963 1 succeeded in obtaining casual work on the Company's freight dock, and got into difficulties with the Union. In August, before they started to work for the Company, both Charles and Ray applied for membership in the Union. The record is not clear whether they told the Union at the time of their application that they were then employed by the Company or only that they hoped to get work there. In any event, after they had paid $5 toward their initiation fee and dues, the Union accepted their applications and issued receipts to them which apparently indicated their bona fide status in the eyes of the Union. Both boys worked for a number of nights at the Company without incident.2 However, on October 14, Union Steward Markey checked Ray's union membership status. Markey asked Ray how he had ob- tained his union papers. Markey, as appears from his testimony, had become suspicious because he "knew the Union wasn't taking in any new members." Ray told Markey that a company foreman had di- rected him to apply for union membership. Dissatisfied with this re- sponse, Markey, as he testified, got Ray to admit that "he [Ray] had lied, that the dock foreman did not send him down, that he went down and told them [at the Union's office] he was working at Roadway Ex- press . . . and the girl assuming he was telling the truth . . . issued him the application card." Markey then told Ray that he never wanted to see him on the Company's premises again. Thereafter, believing that Charles was responsible for taking Ray to the union hall to gain entry into the Union, Markey told Charles that he too should not re- turn to work at the Company. 1 Unless otherwise indicated , all dates are in 1963. 2 The boys were on the midnight to 8 a in . shift on Sunday and Monday nights Charles worked every Sunday and Monday night from August 18 until October 21. Ray worked less regularly than Charles, from October 6 until October 21. The record indicates that Charles was once approached in mid-September by John Markey , the Union 's steward at the Company. After checking Charles' union papers, Markey urged Charles to hurry up and complete his payments on his dues and initiation fee, ROADWAY EXPRESS, INC. 45 Charles and Ray nevertheless continued to work at the Company until the morning of October 22, when Markey again spotted Ray. Markey wanted to know why, in view of his order, Ray had returned to work at the Company. Ray's only response was that he needed the money. Whereupon Markey in the presence of two company officials announced in a loud, insistent tone of voice, "I don't want to see this kid working here again." One of the company officials then instructed Ray, whose shift was coming to an end, to finish up and punch out. Thereafter, Ray in- quired of the other official, Operations Manager Greene, about his em- ployment status. Greene, according to his uncontradicted testimony, denied that the Company had taken any action to preclude Ray's fur- ther employment and asked Ray for a telephone number at which he might be reached if needed by the Company. The normal practice, however, was for casual employees themselves to call in for work, not for the Company to call them. On October 24 Charles and his father went to the union hall to com- plain that the younger Daltons were being denied work at the Com- pany. The Union made a number of telephone calls about the Dal- tons, including a call to the Company's Operations Manager Greene. Following such calls, Union President Fitzpatrick ordered his office personnel to cancel Charles' union membership and to refund Charles' payment of $87 for dues and initiation fee. The reason he asserted for canceling Charles' membership was that suit might be brought against the Union for "soliciting membership off the streets." During the same meeting and in the presence of the Daltons, Union President Fitzpatrick instructed his office personnel, "There will be no more applications for membership given out at this local without written request or a written letter from the company that they are going to hire this man." Later that day, Ray Dalton went to the Company to pick up his own and Charles' paychecks. Operations Manager Greene asked him if he was the Dalton who had been down at the union hall that day. Greene admitted that his question was prompted by the telephone call he had received from the Union about the Daltons. When Greene handed Ray the paychecks, he said, "Don't bother calling in again, we are tak- ing your names off the [extras'] list." The "extras' list" was a list the Company maintained of the names of men acceptable as casual em- ployees on its freight dock. As mentioned earlier, the normal practice was for men interested in working on a particular evening to call the Company. If their names were on the list and if the Company needed their services, they would be told to report in for work. At the same time he handed Ray the paychecks, Greene also told Ray, "You had better get out of here before John Markey sees you." 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ray reported to his brother Charles the substance of his conversa- tion with Greene. Except as noted in the margin, neither of the Dal- tons thereafter called in for work nor did the Company call them.' The complaint alleges that the Union violated Section 8(b) (2) and (1) (A) • of the Act by attempting to cause and by causing the Com- pany to discriminate unlawfully against the Daltons and that the Company violated Section 8(a) (3) and (1) of the Act by discharging the Daltons. The Trial Examiner dismissed the complaint as to the Company on the ground that the General Counsel had not proved that the Daltons had in fact been discharged. Because he found that the Daltons had not been discharged, the Trial Examiner did not reach the issue whether the Union caused the Company to discharge the Daltons. As for the Union's alleged attempt to cause the Daltons' discharge, the Trial Examiner considered only Steward Markey's discharge demand on October 22, and, as to that, absolved the Union of responsibility for Markey's action, finding that under the Union's contract with the Company Markey lacked actual authority to make such a demand. Contrary to the Trial Examiner, we are satisfied that the Daltons were in fact discharged by the Company on October 24. We are un- able to agree with the Trial Examiner that to establish a discharge it was necessary for the General Counsel to show that after October 24 the Daltons had applied for work but had been rejected even though work was available. As appears above, and as found by the Trial Examiner, Operations Manager Greene told Ray Dalton on October 24 that the Company was removing the Daltons' names from the "extras' list"; and that he should not bother to call in for work, thereby making it unmistakably clear that any further application for work would be futile.4 From this we can only conclude that the Daltons were dis- charged by the Company on October 24, and we so find. We are also satisfied that the Union caused the Company to dis- charge the Daltons. On October 22 Steward Markey had made an unequivocal demand for Ray's discharge. The Trial Examiner, rely- ing on the Union's contract with the Company, found that Markey was acting outside the scope of his authority in making that demand. For purposes of this decision, we consider it unnecessary to pass on that point. Whether or not Markey's authority would have been effectively limited by the contract alone, we are satisfied that the Union by its subsequent conduct, as described above, ratified and adopted Markey's demand as its own. We are mindful of the fact that Markey's 8 After filing unfair labor practice charges, Charles was counseled to call the Company for work. He did, and was told that no work was available on the evening he called. 4 The Trial Examiner erroneously found that Ray Dalton admitted that Greene asked him at their final meeting, on October 24, for a telephone number at which he could be reached if work were available. In fact, Ray testified, and we find, that Greene asked him for his telephone number at their meeting on October 22, not at their final meeting on October 24. ROADWAY EXPRESS, INC. 47 demand on October 22 called only for Ray Dalton's discharge. But it is apparent from all the evidence that the Union objected as much to the continued employment of Charles Dalton as of Ray and that its demand was aimed at both. The record shows that after Markey first told Ray that he never wanted to see him again on the premises, Markey told Charles that he too should not return to work at the Company. On the basis of the foregoing and in the absence of any other apparent reason that might explain the Company's decision to discharge the Daltons, it can only be reasonably inferred, and we find, that the Com- pany's action was occasioned by union pressure. There remains for consideration only the question whether the union-instigated discharge of the Daltons was unlawful under the Act. Here, we are not presented with the issue whether a union- induced discharge based entirely upon causes unrelated to an em- ployee's union activity or membership status may be unlawful.' The record satisfies us that the Union demanded the Daltons' discharges because they had gained entry into the Union in violation of the Union's restrictive membership policy. That the Union's discharge request was related to union membership considerations is evident from the fact that at the same time as the Union telephoned the Com- pany to press for the discharges, the Union annulled Charles' member- ship. If the Union had had a lawful agreement providing, inter alia, for preferential treatment of men regularly working in the industry, its action here might not have been unlawful .6 But the Union could not without violating the Act, as it did here, predicate its action upon the violation by employees of an internal union rule or policy relating to the acquisition or retention of membership .7 The Act will not coun- tenance any form of discrimination in the hire, tenure, or other term or condition of employment which turns on the union membership status of the employee involved, except by operation of valid union- security provisions in the parties' contract.' Accordingly, we find that the Company, by discharging the Daltons, violated Section 8(a) (3) and (1) of the Act and that the Union, by causing the discharges, violated Section 8(b) (2) and (1) (A) of the Act.' 5 Compare Miranda Fuel Co., Inc., 140 NLRB 181 , enforcement denied 326 F. 2d 172 (C A. 2). 6 See Local 367, International Brotherhood of Electrical Workers, AFL-CIO ( Easton Branch, Penn-Del-Jersey Chapter, National Electrical Contractors Association), 134 NLRB 132. 7 See A. Nabakowski Co., 148 NLRB 876. 8 Here it was not claimed that the Daltons' discharge was pursuant to the union-security provisions in the parties' contract Charles' dues and initiation fee were fully paid as of October 24 when the Union acted to cancel his membership . Ray had not completed his 30-day grace period at the Company. 6 We also find that the Union was responsible for Steward Markey's discharge demand on October 22 and therefore attempted to cause the Company to discharge Ray Dalton in violation of Section 8(b) (2) and ( 1) (A) of the Act. 775-692---65-vol. 150-5 4S DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY In order to remedy the unfair labor practices found, we shall order the Respondents to cease and 'desist therefrom and to take certain af- firmative action, designed to effectuate the policies of the Act. Having found that Respondent Company discriminatorily dis- charged Charles Dalton. and Ray Dalton by removing their names from the "extras' list" of persons acceptable as casual employees, we shall order that their mines be restored to such list and that each of them be given the same opportunity for casual work as other appli- cants. Having found that Respondent Union unlawfully attempted to cause- Respondent Company to discharge Ray Dalton and unlaw- fullycaused Respondent Company to discharge Charles Dalton and Ray Dalton, we shall further order that Respondent Union be required to notify Respondent Company,and the Daltons that it has no objec- tion to' the employment of Charles Dalton or Ray Dalton with the same rights and privileges enjoyed by other casual employees of the Company. Additionally, we shall order Respondent Union and Respondent Company jointly and severally to makes Charles Dalton and Ray Dalton, whole for any loss of pay they or either of them may have suf- feredfrom the date of the discrimination against them to February 13, 1964, the date of the hearing at -which Respondent Company made an unequivocal offer to accept Charles and Ray Dalton again as casual employees. Should it appear that Respondent Company continued to discriminate against either Charles Dalton or Ray Dalton after that date, the Board will entertain a motion to modify this part of its order. The loss of pay will be computed on a quarterly basis in the man- ner established by the Board in F. W: Woolworth Company, 90 NLRB '289; and sliall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plrunibing &Heating, Co.,, 138 NLRB 716. In computing the net back- pay, if any, to which the Daltons are entitled, no deduction is to be made for earnings from postdischarge employment at times when the discharged employee would not normally be working for the Company. See, Idaho Potato Processors, Inc., ,148 NLRB 63; N.L.R.B. v. Reed f Prince Manufacturing Company, 130 F. 2d 765 (C.A. 1) ; Belle Steel Co^?ip`any, Inc., 135 NLRB 13,78; Loren A. Decker d/b/a Decker Truck Lines, 139 NLRB 65, modified 322 F. 2d 238 (C.A. 8). To the extent that the Daltons' postdischarge employment is a substitute for their employment at the Company, the net earnings from such em- ployrrient shall be deducted in computing net backpay. To the extent that such employment is additional employment, the earnings from such employment shall not be deducted'in computing net backpay. ROADWAY EXPRESS, INC. CONCLUSIONS OF LAW 49 1. Roadway Express, Inc., is engaged in commerce within the mean- ing of Section 2(6) of the Act. 2. Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discharging Charles Dalton and Ray Dalton because of their membership status in Respondent Local 299, Respondent Roadway Express, Inc., has violated Section 8 (a) (3) and (1) of the Act. 4. By attempting to cause Respondent Roadway Express, Inc., to discharge Ray Dalton and by causing Respondent Roadway Ex- press, Inc., to discharge Charles Dalton and Ray Dalton because of their union membership status, Respondent Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., has violated Section 8(b) (2) and (1) (A) of the Act. 5. The aforesaid unfair labor 'practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Roadway Express, Inc.,, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) Encouraging membership in Local 299, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and ,Helpers of Amer- ica, Ind., or in any other labor organization, by discriminating against its employees in regard to their hire or tenure of employment or any term or condition of their employment except to the extent permitted by Section 8(a) (3) of the Act. (b) In any 'like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join the-said Local or any other labor organization, to bargain collectively through representatives of her own choosing, and to engage in 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 organi- zation as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action to effectuate the policies of the Act : `' (a) Place the names of Charles Dalton andiRay Dalton on the'list of persons acceptable as casual employees on its freight dock at its 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Taylor, Michigan, facility, and offer them casual employment there on the same terms and conditions as other applicants similarly situated. (b) Notify Charles Dalton or Ray Dalton, if either or both of them are presently serving in the Armed Forces of the United States, that he has been placed on the list of persons acceptable as casual employees on its freight dock at its Taylor, Michigan, facility and that he will be offered casual employment there on the same terms and conditions as other applicants similarly situated 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. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to compute the amount of backpay due, if any, and the right to employment under the terms of this Order. (d) Post at its trucking facility in Taylor, Michigan, copies of the attached notice marked "Appendix A." 10 Copies of this notice, to be furnished by the Regional Director for Region 7, shall, after being signed by a representative, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in (d), above, as soon as forwarded by the Regional Director, copies of the attached notice marked "Appendix B." (f) Mail to the Regional Director for Region 7 signed copies of the attached notice marked "Appendix A" for posting by Local 299 at its business offices in and around Detroit, Michigan, where notices to mem- bers are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by a representa- tive, be returned forthwith to the Regional Director for such posting. (g) Notify the Regional Director for Region 7, in writing, within 10 days from the date of this Order, what steps have been taken in compliance. B. Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., its officers, agents, and representatives, shall: 1. Cease and desist from : (a) Causing or attempting to cause Roadway Express, Inc., or any other employer to discriminate against Ray Dalton or Charles Dalton, 10 In 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." ROADWAY EXPRESS, INC. 51 or any other employee, with respect to their hire, tenure, or any other term or condition of their employment for reasons related to their membership status in Respondent Union. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action to effectuate the policies of the Act : (a) Notify Roadway Express, Inc., Charles Dalton, and Ray Dal- ton, respectively, in writing, that it has no objection to the employment of the two named individuals. (b) Post at its offices and meeting halls in and around Detroit, Michigan, copies of the attached notice marked "Appendix B."'1 Copies of said notice, to be furnished by the Regional Director for Region 7, shall, after being duly signed by a representative of Local 299, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken to insure that said notices are not altered, de- faced, or covered by any other material. (c) Post at the same places and under the same conditions as set forth in paragraph (b) above, as soon as forwarded by the Regional Director, copies of the attached notice marked "Appendix A." (d) Mail to the Regional Director for Region 7 signed copies of the attached notice marked "Appendix B" for posting by Respondent Employer at its trucking facility in Taylor, Michigan. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by a representative, be returned forthwith to the Regional Director for such posting. (e) Notify the Regional Director for Region 7, in writing, within 10 days from the date of this Order, what steps have been taken in compliance. C. The Respondents, Roadway Express, Inc., and Local 299, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., shall jointly and severally in the manner set forth in the section of this Decision entitled "The Remedy" make whole Charles Dalton and Ray Dalton for any loss of pay suffered be- cause of the discrimination against them. n in 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." 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES OF ROADWAY EXPRESS, INC. 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 our employees that: WE WILL NOT encourage` membership in Local 299, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or in any other labor organization of our employees, by discriminating in any manner with their hire or tenure of employment or any other term or condition of employment. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of the right to self- organization, to form labor organizations, to join Local 299, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor organization, to 'bargain • collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collec- tive bargaining, or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in it labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL place the names of Charles Dalton and Ray Dalton on our list of persons acceptable as casual employees and offer them casual employment on the same terms as other applicants simi- larly situated, and will, jointly with Local 299, International -Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Ind., make each whole for any loss of pay suffered ^' as a result of 'the discrimination against him. ROADWAY EXPRESS, INC., Employer. Dated- ---------------, By------------------------------------- (Representative ) (Title) iNoTE.-We will notify either of the above-named individuals if now serving in, the Armed Forces of the United States of their right to be considered for casual employment 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. ROADWAY EXPRESS, INC. 53 Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1279^Washington,Boulevard, Detroit, Michi- gan, Telephone No. 963-9330, if they have any question `concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 299, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,'" WAREHOUSEMEN" AND HELPERS OF AMERICA, IND. - , 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 cause or attempt to cause Roadway -Express, Inc., or any other employer to discriminate against any employee be- cause of his nonmembership in this'Union. WE WILL NOT in any other manner restrain or c oerce employees in the exercise of the right to self-organization, to form labor organizations, to join this Union or, any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose,of collec- tive bargaining, or other mutual aid or protection, or to refrain from any and all such activities; except to the extent that such rights may be affected by an agreement requiring membership in this Union as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL notify Roadway Express, Inc., in writing, and in the same fashion give notice to Charles Dalton and Ray Dalton, that we have no objection to the employment of these two individuals. WE WILL, jointly with Roadway Express,.-Inc., make whole Charles Dalton and Ray Dalton for any loss of pay suffered as a result of the discrimination against them. LOCAL 299, INTERNATIONAL BROTHERHOOD OF' TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, OF AMERICA, IND., ' 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. ' 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1279 Washington Boulevard, Detroit, Michi- gan, Telephone No. 963-9330, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge in Case No. 7-CA-4429 and upon a charge in Case No. 7-CB-1 142 both signed by Charles Dalton, an individual, on October 24, 1963, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel' and the Board, respectively, by the Regional Director for Region 7 (De- troit, Michigan), issued its complaint dated December 24, 1963, against Roadway Express, Inc., hereinafter called Respondent Company, and against Local 299, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., hereinafter called Respondent Union. The consolidated complaint alleged that Respondent Company had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (3), and that the Respondent Union had engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act. Copies of the charges, the consolidated complaint, and notice of hearing hereon were duly served upon Re- spondents Company and Union. Each Respondent duly filed its individual answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held at Detroit, Michigan, on Febru- ary 12 and 13, 1964, before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce, examine, and cross-examine witnesses, and to introduce evidence material and pertinent to the issues. Oral argument at the conclusion of the hearing was waived. Briefs have been received from General Counsel, Respondent Com- pany, and Respondent Union on March 16, 1964. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT COMPANY Roadway Express, Inc., is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Michigan. At all times material herein Respondent Company has maintained its principal office and place of business at 22701 Van Born Road, in the city of Taylor, and State of Michi- gan, herein called the Van Born Installation. Said Employer maintains other installa- tions in the State of Ohio. Respondent Company is, and has been at all times mate- rial herein, engaged as a common carrier in the intrastate and interstate transportation of commodities and freight. The Van Born Installation located at Taylor, Michigan, is the only facility involved in this proceeding. During the year ending December 31, 1963, which period is representative of its operations during all times material herein, Respondent Company, in the course and conduct of its business operations, performed services valued in excess of $500,000, which services valued in excess of $50,000 were performed in the furnishing of trans- portation services of commodities and freight in interstate commerce and for various enterprises located in States other than the State of Michigan. The complaint alleged, Respondent Company's answer admitted, and I find, that Respondent Company is engaged in commerce within the meaning of the Act. H. THE RESPONDENT UNION Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., is a labor organization admitting employees of Re- spondent Company to membership. 1 This term specifically Includes the attorney appearing for the General Counsel at the hearing. ROADWAY EXPRESS, INC. III. THE ALLEGED UNFAIR LABOR PRACTICES 55 A. The facts This story begins on or before August 11, 1963, when Donald Dalton, a casual truckdriver and member of Local 299 , suggested to his young sons, Charles and Ray, that, if they wanted casual employment, they might be able to get it working on the dock for Roadway Express. On or about August 11 2 Charles Dalton, 18 years old, telephoned the Roadway dock about 11:30 p .m. and asked Foreman Burrell Harnish if Respondent Employer was employing any casual help that night . According to Charles,3 Harnish asked if Charles was a union member or had a dock permit from Respondent Union and, upon receiving a negative response , replied that if Charles would join the Union or get a union permit, he would hire him .4 On August 13 Charles appeared at union headquarters, having been driven there by his father, and applied for union membership from a secretary in the office. After telling this unknown secretary that he had worked for Respondent Employer on August 12, he paid $5 and signed an application for union membership which noted the $5 payment and the balance owing of $70. On August 17 Ray appeared at union headquarters, paid his $5 and signed an appli- cation for union membership which also showed his $5 payment and balance ow- ing of $70. On Sunday evening, August 18 , Charles again telephoned Respondent Employer's dock and inquired if Respondent Employer was hiring extra help that night. The answer was in the affirmative and he was told to report at midnight . In this con- versation nothing was mentioned about the Union or work permits. As requested, Charles reported that night to Foreman Harnish for work. With- out inquiry Charles showed Harnish his union credentials and was told by Harnish to await instructions on the dock. Charles was put to work that night as a casual employee and worked thereafter on Sunday and Monday evenings after similar tele- phone inquiries. Sometime in early September, Union Steward John Markey , a large man standing over 6 feet tall and weighing about 250 pounds , asked Charles on the dock if Charles had a union card . After Charles had displayed his union credentials to Markey, Markey told him to hurry up and get his initiation fees paid. Thereafter Charles paid to Respondent Union the sums of $10 on September 11, $30 on both October 16 and 18, together with a payment of $12 on this latter date so that by the end of October 18, Charles had fully paid his initiation of $75 and dues of $12. Ray, 19 years old, who by his own description was "playing around nights," did not telephone the Roadway dock until the evening of October 6 to inquire if Respondent Employer was hiring extra help. The answer was in the affirmative-and without inquiry as to union affiliation or work permit . That night Ray reported for work along with Charles and was put to work without question and without display of his union credentials. Upon similar inquiry the following evening, October 7 , Ray was told that Respond- ent Employer was not hiring extra help that evening . Apparently, however, Charles worked as usual that night.5 Ray again inquired about extra help from Respondent Employer and was told to report at midnight, October 14 .6 Sometime on the morning of October 14, while Ray was working, Steward Markey came to him and inquired if he were a union man. Ray showed him his union "work permit." Markey asked Ray how he got the union card . Ray answered that a foreman had told him that he had to have a union card. 2 Charles Dalton proved to be a little unsure of his dates 3 The Daltons' first names will be used herein in order to differentiate among them. 4 The complaint alleged that "Employer and Union have performed, maintained, and otherwise given effect to an arrangement , understanding , or practice requiring dispatch or clearance by Union as a condition of hiring of employees by Employer" and that "the arrangement, understanding, or practice . . . requires the applicant for employment to make immediate application for membership in and to pay moneys to the Union as a con- dition of obtaining from the union clearance or dispatch for employment with Employer." Harnish denied having made any such Inquiry as described by Charles. 5 Customarily Charles and Ray made inquiry and worked only on Sunday and Monday nights, midnight to 8 a.m. 8 Like Charles, Ray was also hazy about dates 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Markey denied this vigorously, took Ray by the hand and led him to the office and demanded that he tell Markey which foreman had so informed him. Ray was unable to do so.'' Markey then emphatically informed Ray that this was the first and the last day Ray was to work at Respondent Company's place of business. However, Ray and Charles worked on October 15 and 21 without further incident. About 7:30 a.m. on October 22, while Ray and Charles were at work on the dock, Markey spotted Ray and inquired in a belligerent manner if he, Markey, had not told Ray that he was not to work there any more and asked what Ray was doing there. Ray said that he wanted to make a little money. Markey turned, started toward the end of the dock just as Operations Manager Greene and Foreman Ensley were walk- ing toward him, and shouted out the admonition for all to hear that Markey never wanted to see Ray on the dock again. Operations Manager Greene and Foreman Ensley, who were walking toward Markey as he pointed and made his statement, both looked around to see to whom Markey was referring, but both testified that they did not see Ray. Ray testified that Markey had a conversation, which he did not hear, with Greene and Ensley and then continued on his way. This testimony, is denied by all three of the men mentioned.8 Some minutes later Ensley approached Ray and asked if he were the man Markey was talking about. Ray admitted it. Ensley instructed him to finish his work and to punch out.9 Still later that morning and before Ray had checked out, Ray approached Greene and asked why he could not continue to work for Respondent Employer. Greene acted surprised at the question and stated that he could continue to work for Respondent Employer and asked Ray for a telephone number so that Respondent Employer could get in touch with him. Ray admitted this request, and also that he had never supplied Respondent Employer with such a telephone number. Ray finished his work that morning and punched out. On October 24 Charles and father Donald appeared at union headquarters, where they inquired as to what right Markey had to tell Ray and Charles that they could no longer work for Respondent Employer when the boys were "members of the Union." After some inquiries of Charles, Union President Fitzpatrick had some of his busi- ness agents make inquiries of Markey and Roadway officials, and then with the com- ment that the Union might be sued for signing men off the street, ordered that the $87 of payments made by Charles to the Union be refunded to him.io That same day Ray appeared at Respondent Employer's dock in order to collect the wages owing to him and Charles." Greene presented these checks to Ray with the comment that he was not to call for work again as he, Greene, was taking the Daltons' names off the list. As Greene handed the checks to Ray he suggested that Ray better get off the dock before Markey saw him. Charles admitted that no official of Respondent Employer had ever told him not to come back to work but that he, Charles, had never again inquired whether Respond- ent Employer was hiring extra help. Ray testified that, at the suggestion of a Board field examiner, he had about Novem- ber 5, or some such date, telephoned Respondent Company and asked if it were hiring extra help. He was informed that Respondent Employer was not hiring extra help that night. B. Conclusions At the conclusion of the General Counsel's case each Respondent moved to dis- miss the allegations of the complaint to the effect that there existed between them an "arrangement, understanding, or practice" whereby Respondent Company employed only those applicants for employment who had secured clearance from Respondent Union through the payment of moneys to it or by joining same. 7 Ray admitted that he had "lied" to Markey and that no foreman had required him to get a union card The record here is unclear as to whether this visit to the foreman 's office occurred on October 14 or 22. 8 At about this point in the description of events, Ray, Greene, and Ensley all become considerably forgetful. Green, Ensley, and Markey all deny that there was any conversa- tion among the three of them after Markey's shouted statement. As the paths of these three men apparently passed each other, it would seem normal and natural that there would have been a conversation among the three. But, if there were, nobody remembered it. , 6 Ensley testified that he approached Ray because from his office he could see Ray stand- ing on the dock with-his hands in his pockets. Ensley thought he should be working. 1O Fitzpatrick did not testify at the hearing 11 Casuals are paid for their work every day. ROADWAY EXPRESS, INC. 57 This motion was granted. The only evidence tending to establish such an "arrangement, agreement or prac- tice" was the testimony of Charles that, when he telephoned Respondent Company about 11:30 p.m. on August 11, he had been told by Foreman Harnish that if he joined the Union or secured a union work permit , Respondent Company would em- ploy him as an extra.12 Whereas, to the contrary, the evidence showed that on October 6 when Ray telephoned Respondent Company asking if it were hiring extra help that night, no such inquiry or statement about the Union was made. Both Charles and Ray, as well as their father , admitted that they knew that many of the dock employees working for Respondent Company were not members of the Union, had paid no money to the Union and had been , in fact, "hired off the street." Thus the testimony of the General Counsel 's own witnesses adduced through the alleged discriminatees disproved the averment of the complaint . Thus there was a variance between the averments of the complaint and the proof. There were other similar variances between the allegations of the complaint and the proof thereof throughout this hearing. In addition to the allegations of the "arrangement , agreement or practice," the com- plaint further averred that Respondent Union requested Respondent Company to dis- charge Ray and Charles for their failure to join and /or to pay moneys to the Union for clearance . However, the proof adduced showed that both Charles and Ray had, in fact, joined or made application to join the Union prior to their employment, Charles being fully paid up in both initiation fees and dues, while Ray had $5 and still owed $70 on his initiation fee when their employment by Respondent Company ceased. The evidence of Charles, if accepted at face value, would indicate that his joining the Union had-not been voluntary 13 whereas that of Ray indicates his was an entirely voluntary action on his part. The complaint also alleged that the Union requested the discharge of Charles and Ray for the nonpayment of fees. Obviously in the case of Charles, the Union's re- quest could not have been made on that ground for Charles was at that time fully paid up and had the receipts to prove it . Ray, of course, was not fully paid up but probably was not delinquent as he had only worked a few days for Respondent Com- pany by October 24. The complaint also alleged that Respondent Company's action in discharging Ray and Charles "encouraged " membership in the Union . In view of the payments ad- mittedly made by Charles and Ray to Respondent Union, this allegation seems to have little, if any, relation to the facts of the situation. That brings this decision to the "demand " for the discharge by the Union and thereafter to the "discharge" by Respondent Company. As to the "demand" there is no question but that it was made clearly, loudly, angrily for all to hear by Steward Markey: "I don't want to see that kid's face on this dock again." There was no ambiguity in those words . Although the , demand was made by the Union Steward Markey, the Board has held in a number of cases 14 that the Union may , as it did here, limit the authority of its stewards by contract. Under the contract here, Markey did not have the authority as union steward to demand the discharge of an employee. Right or, wrong, that rule of law appears to exculpate Respondent Union here. Steward Markey, a young man appearing to stand considerably over 6 feet in height and 250 pounds more or less in weight , is capable of compelling obedience to his requests by his appearance alone among persons less propitiously endowed physi- cally-especially among slight 18- and 19-year olds and even those company officials who appeared at this hearing. With this case the Respondent Union now knows that its Steward Markey has a propensity to far overstep his contract authority as a union steward. In other words with this case Markey is enjoying his "one free bite"-rather analogous to the rule of liability of the owner and keeper of a vicious pet. The question of "discharge" in the instant matter is once again far from clear. Ray testified that he was told by Ensley to finish his work and check out soon after Markey's shout. As proof of discharge that is enigmatic at best. Ray testified that, when he picked up his own and Charles ' checks a day or so thereafter, Greene told him that Respondent Company was removing their names from the extra roster and that Ray had better get off the dock before Markey saw him. Opposed to this testi- 112 This testimony was subsequently denied by famish 18 Although denied, there lurks a suspicion that father Donald may also have suggested the efficacy of joining the Union when he suggested to his sons the possibility of their se- curing work at Roadway 11 Local 560, Teamsters and Riss d Co., Inc., 127 NLRB 1327, N.L.R.B. V. Mallory & Co., 237 F. 2d 437. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony Ray acknowledged that on this last occasion Greene had asked him for a tele- phone number where Respondent Company could get in touch with them for future work and that Ray failed to furnish the same. It is acknowledged by all that Charles never applied for work with Respondent Company thereafter 15 and that Ray only applied the one time when Respondent Company was not hiring. I am of the opinion that Respondent Company did not discharge either Ray or Charles but was, as stated in open court by Respondent's attorney at the hearing, ready and willing to employ either or both upon application. Under all the facts in the instant case, I will recommend that this complaint be dis- missed in its entirety. On the basis of the foregoing findings of fact , and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW Local 299, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Ind., is a labor organization within the meaning of Section 2(5) of the Act. Roadway Express, Inc., is engaged in commerce within the meaning of Section 2(7) of the Act. Respondents have not engaged in any unfair labor practices within the meaning of Section 8 (a) (1) or (3) of the Act. RECOMMENDED ORDER I recommend that the complaint in the instant matter be dismissed in its entirety. 15 Nor am I convinced that any normally prudent man of less size than Markey would have done so. Crown Aluminum Industries Corporation and Sheet Metal Workers International Association, Local Union No. 159, AFL- CIO. Case No. 11-CA-2439. December 14, 1964 DECISION AND ORDER On October 15, 1964, Trial Examiner Lee J. Best issued his Deci- sion 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 Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Jenkins]. 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 Trial Ex- aminer's Decision, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 1 The Respondent has requested oral argument . This request is hereby denied because the record, exceptions, and briefs adequately present the Issues and positions of the parties. 150 NLRB No. 8.