Local Freight Drivers Local 70

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Freight Drivers Union Local 70, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America and City Transfer, Inc. Case 21-CC-1220 January 30, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 23, 1970, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled pro- ceeding, finding that Respondent had not engaged in certain unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter the General Counsel filed exceptions to the Decision and a brief in support thereof; Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Trial Examiner: This case was tried at Los Angeles, California, on September 1, 1970.1 The is- sues litigated were framed by a complaint dated July 10, 1970, which alleged that Local Freight Drivers Union Local 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called Res- pondent, violated Section 8(b)(4)(ii)(B) of the National La- bor Relations Act, as amended, and an answer filed by Respondent which admitted some and denied other factual 1 All dates are in 1970 unless otherwise specified allegations of the complaint but denied that Respondent violated the Act. The complaint, which was based on a charge filed by City Transfer, Inc., on May 26, alleged in substance that Respondent unlawfully threatened to picket Republic Carloading and Distributing Co., Inc ., herein called Republic, and Clipper Carloading Company, herein called Clipper, both of whom were neutral secondary em- ployers, with an object of forcing Republic and Clipper to stop doing business with City Transfer, a company with whom Respondent did have a dispute. Counsel for the Gen- eral Counsel and Respondent appeared at the hearing, all parties were given full opportunity to participate , to intro- duce relevant evidence, to examine and cross-examine wit- nesses, to argue orally, and to file briefs. Briefs which have been carefully considered were filed on behalf of the Gener- al Counsel and Respondent. Issue Whether Respondent in violation of Section 8(b)(4)(ii)(B) of the Act, through its business agent, Ybarro- laza, threatened Republic and Clipper with picketing in order to force them to cease doing business with City Trans- fer. Upon the entire record of the case and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF THE COMPANIES City Transfer, a corporation with an office and place of business in Santa Fe Springs, California, is engaged in the business of hauling freight by motor vehicle. During the 12 months immediately preceding the issuance of the com- plaint, City Transfer performed services valued in excess of $50,000 for firms located in California , which firms in turn caused to be shipped directly to or received directly from customers outside of California goods valued in excess of $50,000. City Transfer annually receives in excess of $50,000 from transportation of freight flowing in interstate com- merce. Republic and Clipper are both freight forwarders who annually receive a substantial amount of revenue from the transportation of goods in commerce or affecting com- merce. The complaint alleges , Respondent admits, and I find that City Transfer, Republic and Clipper are employers and persons engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and in an industry affecting commerce within the meaning of Section 8(b)(4) (ii)(B) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting 1. The relationship of the participants City Transfer is a trucking concern that is licensed to operate in the Los Angeles, Riverside, San Bernadino, and Orange County, California, areas (referred to generally as 188 NLRB No. 50 LOCAL FREIGHT DRIVERS LOCAL 70 the Los Angeles area). It performs trucking services for a number of other trucking concerns that are not licensed to operate in those areas , including Clipper and Republic. City Transfer employs some 58 members of Local 208 , Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called Local 208, and is a member of the California Trucking Association which negotiates with Local 208. Respondent represents none of City Transfer's employees. The Los Angeles area is within the jurisdiction of Local 208, while Respondent has jurisdic- tion in Alameda County, which is the Oakland, California, area.' City Transfer has no terminal in the Oakland area and consequently has no collective-bargaining relationship with Respondent. Clipper and Republic have terminals in the Los Angeles area and in the Oakland area and therefore they or their divisions have collective-bargaining relation- ships with both Respondent and Local 208. Clipper is a freight forwarder engaged in carrying freight from the east to the west coast via piggy back. Through March Transport, which is a division of Clipper, it delivers some goods locally, but beyond March's territory it uses the services of 8 or 10 other trucking concerns . City Transfer receives about 60 percent of that work which amounts to about $20,000 or $30,000 per month. City Transfer makes extensive use of Clipper's Los Angeles area premises. About six of City Transfers employees are permanently assigned to work out of Clipper's premises. These employees, who are on the City Transfer payroll but are assigned to work from Clipper, report directly to Clipper's premises for work and punch their timecards , there. One of these employees was a driver named Edward Harris. A dispatcher employed by City Transfer also reports daily to Clipper and spends about 3 hours there during which time he dispatches the City Transfer drivers . City Transfer often leaves equipment at the Clipper premises overnight. Re ublic is also a freight forwarding company and also uses City Transfer as an interline carrier to deliver freight to locations where it is not allowed to go under Iiiterstate Commerce Commission rules . Republic uses six such inter- liners and City Transfer handles 15 or 20 percent of that work, which amounts to about $20,000 a month . City Trans- fer does not dispatch from Republic's premises or leave trucks there overnight. 2. The primary dispute On April 2, City Transfer was involved in a labor dispute with Local 208. A strike occurred which City Transfer be- lieved to be a wildcat. About 28 employees participated in the strike and before it was over on June 2 , 12 of them had been permanently repplaced. On May 19 about 11 a.m., Al Quintero of Local 208 called Harold F. Kohl, the manager of operations for City Transfer, and asked him to hire back the discharged employees, as other trucking companies were also rehiring and granting amnesty. There is no eviden- ce in the record that Local 208 took any further action in this matter. 3. Respondent's involvement in the dispute In May there was a general labor dispute in the Los Angeles and San Francisco (Oakland) areas which involved various Teamster locals and employers. One of those em- ployers was Republic, who had a dispute with Respondent at its Oakland area terminal and with Local 208 in its Los 2 The Rand McNally Standard Highway Mileage Guide shows the dis- tance between Oakland and Los Angeles as 404 miles 295 Angeles area terminal. Even though there was a work stop- page which started about May 10 at Republic's Oakland area premises, Respondent neither picketed that premises nor ordered a work stoppage there . The Los Angeles local was picketing the Oakland area employers . As Alex Ybarro- laza, Respondent's business agent, credibly testified in ex- plaining why he went to Los Angeles and involved himself with Local 208's affairs: 'Well, my purpose was to come down here to Los Angeles and find out what it was all about, you know, and why we were being picketed ; and we had been picketed for 2 weeks .... My instructions were to try to find out what it would take to free our people and let them go to work back up north." At another point in his testimony, Ybarrolaza credibly testified that he went to Los Angeles 'because this whole durn area was out of control, and nobody had anything to say about anything that was going on down here. And they were up there picketing our terminals and stopping our people from going to work." On about May 12, Executive Vice President Ferro of Republic came to Respondent's Oakland office to find out what it would take to resolve Republic's problem in the Los Angeles area . Respondent's business representative, Ybar- rolaza,3 told Ferro that the complaint in Los Angeles was that a number of employees had been fired when they en- gaged in a work stoppage and they wanted amnesty, and in addition there was a dispute about 5 or 6 days sick leave. Ferro said there was no problem and he signed a letter of agreement in which Republic agreed that it would grant full amnesty to all of its employees in the Los An geles area and that it would grant its Los Angeles terminal employees 5 days paid sick leave. Ybarrolaza, who signed the letter as a witness, then contacted the Los Angeles local and told them, "You've t no problem with Republic ; how about releasing Republic in Emeryville [Oakland area]? The work stoppage then ended and the employees went back to work on ay 13. On Monday, May 18, Ybarrolaza left Oakland and went to Los Angeles to attempt to stop the Los Angeles people from "picketm i our [Oakland] terminals and sto ping our [Respondent's people from going to work." Ybarrolaza spent 4 days in Los Angeles speaking to employees and employers. Among the employers he spoke to were City Transfer, Clipper, and Republic. The allegations of unfair labor practice are based upon his conversations with Clip- per and Republic. B. Ybarrolaza's Activities in Los Angeles 1. The conversations with Harris and City Transfer em- ployees On May 19 Ybarrolaza went to Local 208's office and spoke to Edward Harris, one of the City Transfer employees assigned to Clipper who had been permanently replaced, and to other employees. Harris told him that they were going to picket the places in the Los Angeles area where City Transfer had trucks. The employees told him that City Transfer trucks were in Cliper's yard and that they wanted to go there and picket the pplace. These employees were not members of Respondent, Ybarrolaza had no control over them, and he did not tell them to picket. 2. The conversations with City Transfer About 3 p.m. on May 19 Ybarrolaza phoned Harold F. Kohl, the manager of operations for City Transfer, and identified himself as a representative of Respondent in Oak- It was stipulated that Ybarrolaza is a representative of Respondent. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD land. Ybarrolaza said that he was in the area to help mediate and negotiate with Local 208 and to get the people who were discharged back with full amnesty. He also-said that Harris would have to be returned to his job at Clipper because there was a possibility of labor problems with Clipper in both Oakland and Los Angeles. He mentioned that there might be a sympathetic walkout in Oakland. Kohl answered that only the president of the Company could rehire and Ybarrolaza replied that it should be done immediately be- cause, to his knowledge, there were pickets at that moment on their way to Clipper in Los Angeles. These findings are based on the credited testimony of Kohl. Ybarrolaza acknowledged that he phoned Kohl and asked him to grant full amnesty to all the men who had been discharged. He testified, however, that he did not recall mentioning Harris' name to Kohl and he denied telling Kohl about the possibility of pickets appearing at Clipper. Shortly before this conversation, Ybarrolaza had heard of such a possibility from the City Transfer employees. Even though I was impressed with Ybarrolaza's candor on the witness stand, it is likely that the subject was also broached with Kohl and in this regard I believe that Kohl's recollec- tion of the conversation was more detailed and reliable than Ybarrolaza's. 3. The conversations with Clipper In the late afternoon of May 19 Ybarrolaza telephoned Frank Goddard, Clipper's terminal manager in the Los An- geles area. Ybarrolaza identified himself as a representative of Respondent and said that some of the City Transfer employees were on their way to Clipper's terminal with the intention of picketing. He also said that Clipper should not be involved :m the work stoppage because it had never fired any of its men. Goddard asked what the problem was and Ybarrolaza replied that the City Transfer employees were complaining that City Transfer was located in Clipper's terminal and that the men were going to picket City Trans- fer, which, in itself, would and up picketing Clipper. God- dard asked what it would take to prevent this from coming about and whether Ybarrolaza had any control over the men. Ybarrolaza said that he had no control over the men and that their objection was to City Transfer's continuing to operate at Clipper's compound. Ybarrolaza asked God- dard to inform him if the pickets arrived because he did not want the corresponding terminal in Oakland to be shut down. Goddard said that he would let Ybarrolaza know. Ybarrolaza never instructed or authorized anyone to picket Clipper, nor did he suggest to Goddard that Clipper stop doing business with City Transfer. The findings with regard to the conversation between Ybarrolaza and Goddard are based on the testimony of Ybarrolaza, which I credit. Goddard's version of the con- versation was somewhat different. Goddard averred that Ybarrolaza said that Clipper used City Transfer; that City Transfer had not taken back some of their employees who had been terminated; that Respondent was going to try to help their brothers, the Local 208 members, to get their Jobs bad with City Transfer; and "that there wouldgprobabl'y be labor problems at Clipper Carloading if (it) still continued to use City Transfer."The difference in testimony between one of emphasis. I Goddard and Ybarrolaza is principall believe both were honest witnesses who were testifying to the best of their recollection, but I also believe that the context that Ybarrolaza put the conversation in was more that he was concerned about a sympathetic walkout in Oak- land. Kohl's testimony to that effect gives credence to Ybarrolaza's assertion that he made remarks of that nature to Goddard. No doubt Ybarrolaza wanted to see the dispute with City Transfer ended but his primary concern in coming to the Los Angeles area was to prevent strikes against em- ployers in the Los Angeles area from spreading to the Oak- land area. Ybarrolaza s version of this conversation, which in substance is that he alerted Goddard to the possibility of picketing that he (Ybarrolaza) had no control over, is con- sistent with the overall purpose of Ybarrolaza's visit to the Los Angeles area and is credible. On the morning of May 20, Harris, the ex-City Transfer employee who had been assigned to Clipper, came to Clip- per and spoke to Goddard. Hams gave Goddard Ybarrolaza's business card and asked whether he had re- ceived a call from Ybarrolaza the previous afternoon. God- dard answered that he had and Harris replied that he was sent by Ybarrolaza to get Clipper to discontinue using City Transfer because City Transfer still hadn't taken its employ- ees back and that he (Harris) wanted his job back. Goddard then left Harris and went into his office where he spoke to Kohl, who was there at the time. A short time after, Goddard and Kohl came out and both spoke to Har- ris. Harris was again asked what the purpose of his visit was and he answered that he had been sent by Ybarrolaza to say that they should not use City Transfer until that company had taken back the Local 208 people. Goddard said that the problem seemed to be between Local208 and City Transfer, and that Clipper should not be involved. Harris answered that he was on the seniority roster of City Transfer assigned to Clipper and that was the reason Clipper was involved. Harris said he was following the instructions of Ybarrolaza and that he was sent to talk Goddard into gettin Clipper to convince City Transfer to take him back with full amnes- ty to avoid any labor problems. Kohl asked him to be specif- ic and whether there would be a picket line. Harris replied that he was not sure of the nature of it. Kohl said that City Transfer would probably lose the Clipper account if there was a labor problem and he asked Hams to have Ybarrola- za talk to them about it and that he would wait for a call from Ybarrolaza.4 Respondent is bound by Harris' remarks only if it is shown that Harris is an agent of Respondent. General Counsel makes no contention that Hams is an official of Respondent. Indeed, he is not even a member of Respon- dent. He had Ybarrolaza's business card in his possession but Ybarrolaza credibly testified that he had given that card to many people on his visit to Los Angeles and the posses- sion of the card by Harris does not imply that Ybarrolaza authorized Harris to act for him. Harris knew of Ybarrolaza's call to Goddard the previous day but there is no indication that there was any attempt to keep that call secret. The only indication of Harris' agency status is Har- ris' statement to Goddard and Kohl that Ybarrolaza had sent him. However, Goddard and Kohl could only testify that the statements were made by Harris and, of course, could not testify to the truth of those statements. Harris did not testify and therefore Ybarrolaza's categorical denial that he authorized Harris to act for him stands undenied. Harris' interests were not identical to those of Ybarrolaza. Harris' primary concern was to get his job back, even if it meant involving Clipper in a labor dispute. Ybarrolaza's main concern was to prevent Clipper from becomming in- volved in a labor dispute that might keep Respondent's accurate than that given by Goddard. Shortly before this conversation, Ybarrolaza had told Kohl of City Transfer These findings are based on the credited testimony of Goddard and that the men were on their way to Clipper for picketing and Kohl Hams did not testify. LOCAL FREIGHT DRIVERS LOCAL 70 297 members from working in the Oakland area. Under all the circumstances, I find that the General Counsel has not es- tablished that Harris was speaking for Respondent or was Respondent's agent. On May 20, 1970, Clipper stopped doing business with City Transfer. Business was resumed 2 weeks later. When asked on the stand whether there was anything that he said to Goddard that could have led to that cessation of business, Ybarrolaza answered that he did not tell Clipper to stor doing business with City Transfer, that City Transfer didn t have a terminal in Oakland and Respondent did not repre- sent its employees and that he thought Clipper listened to Harris and not to him. Angeles and with his prior conduct. Ybarrolaza was there to prevent a picket line that could spread to Oakland, he had no authority to tell members of Local 208 to follow the trucks and he had no members of Respondent with him that he could send to picket. I believe that Ybarrolaza was mere- ly notifying Minor of the possibility of picketing even though Minor may have mistakenly taken the remark to mean that Ybarrolaza would be involved in sending the pickets. No pickets arrived at Republic and Republic continued to use City Transfer's services. C. Conclusions 4. The conversations with Republic While Ybarrolaza was in Los Angeles, a number of City Transfer employees told,him that they were going to picket Republic both in Los Angeles and in the Oakland area. None of those employees were members of Respondent and Ybarrolaza had no control over them. On May 22, Ybarro- laza telephoned Arthur Minor, Republic's Los Angeles ter- minal manager . Minor was not in at the time but he returned the call and reached Ybarrolaza at the Local 208 office. Ybarrolaza referred to the agreement that' Ferro had signed granting amnesty to the Republic employees in the Los Angeles area; told yMinor that there was a dissident element-made up mostly of City Transfer employees who were on their way to picket because City Transfer had not settled; and also said that the employees were trying to force the issue to get their jobs back. Ybarrolaza asked Minor what Republic's connection was with City Transfer and Minor replied that the City Transfer trucks operated in and out of the Republic terminal. Though Ybarrolaza did not tell Minor that Republic could be in for future problems if it did business with City Transfer, he did suggest that Minor talk to Kohl and try to mediate the problem with City Transfer. Ybarrolaza asked Minor if he could talk to Kohl and ask Kohl to grant amnesty to the employees. Minor replied that he would try. Ybarrolaza said that if there was a strike against Republic in Los Angeles, there might also be one in the Oakland area and that Minor should let him know what was happening so that he could try- to get the Oakland area employees to refuse to strike. The above findings as to the conversation between Ybar- rolaza and Minor are based on the credited testimony of Ybarrolaza. Minor did not take the stand but his. deposition was admitted into evidence. According to the deposition, Minor and Ybarrolaza discussed the relationship between Republic and City Transfer and Ybarrolaza said, "Well, you better tell them to hire back Local 208 drivers that they discharged .... You better stop using them" and "Well, if you do use them, then we will have pickets follow the men over to your place." In deciding to credit Ybarrolaza over the testimony in the deposition of Minor, I take into consid- eration the fact that Ybarrolaza's version of the conversa- tion is consistent with the purpose for which he was in Los The gravamen of the complaint is that Respondent, through Ybarrolaza, threatened Clipper and Republic with picketmg and other pressure to force them to cease doing business with City Transfer. However, the credited evidence sei forth above, establishes that Ybarrolaza made no threats of any kind. In his conversations with Goddard of Clipper and Minor of Republic, Ybarrolaza was simply alerting them to the possibility of picketing by people over whom Ybarrolaza had no control. In a sense, Ybarrolaza had a common interest with Clipper and Republic in wanting to keep them free of the dispute between the Local 208 mem- bers and City Transfer. Ybarrolaza wanted to prevent pick- eting of Clipper and Republic which would spread to the Oakland area and interfere with the employment of the employees Respondent represented. The credited evidence establishes that he acted consistently with those interests and that he did not threaten to picket Clipper or Repub- lic., As the credited evidence does not establish that Respon- dent violated the Act as alleged in the complaint, I shall recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. City Transfer, Republic, and Clipper are employers engaged in commerce within the meaning of Section 2(6) and (7) and in an industry affecting commerce within the meaning of Section 8(b)(4)(ii)(B) of the Act. . . 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor prac- tices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and ursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety. s As I have found that Ybarrolaza did not make the threats attributed to him by Goddard and Minor, it is unnecessary to consider whether the alleged threats would have been in violation of the Act if they had been made.