Tulsa General Drivers

780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tulsa General Drivers , Warehousemen and Helpers, Local Union 523 and The Rocket Freight Lines Co. Case 16-CB-356 FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY June 18, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On July 25, 1968, Trial Examiner Thomas A. Ricci issued his Decision 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 Trial Examiner' s Decision . Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. The Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this 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 Relations 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 THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before me at Tulsa, Oklahoma, on May 9, 1968, on complaint of the General Counsel against Tulsa General Drivers, Warehousemen and Helpers, Local Union 523, herein called the Respondent, or the Union. The charge was filed on August 15, 1967, and the complaint issued on March 29, 1968. The issue litigated is whether the Respondent violated Section 8(b)(1)(A) of the statute. Briefs were filed after the close of the hearing by all parties. Upon the entire record, and from my observation of the witnesses, I make the following: The Rocket Freight Lines Co., herein called the Company or the Employer, an Oklahoma State corporation , is engaged as a short line hauler of class "A" motor freight and cargo moving in interstate commerce, and maintains its principal office and place of business at Tulsa, Oklahoma. During the past 12 months, a representative period, in the course of its operations within the State of Oklahoma, the Employer received gross income in excess of $50,000, for services which were performed pursuant to contracts with , and/or as agent for various interstate common carriers , including, among others, Transamerican Freight Lines, Inc., Transcon Lines, and Time Freight Inc., operating between and among various States of the United States . The complaint alleges, the answer admits, and I find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Tulsa General Drivers, Warehousemen and Helpers, Local Union 523, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The issue Rocket Freight Company does a truck cartage business out of six separate terminals in Oklahoma, and its employees are represented in different parts of the State by three Teamster locals. Its total complement, almost 70 men, constitute a single bargaining unit. For some 18 years the Company has been party to national collective-bargaining agreements with the Teamster International, and its Southern Conference. There have also always been supplemental addenda, or rider agreements, negotiated locally, and relating to special conditions in Oklahoma. In the course of the negotiations during the spring of 1967, the local unions called a strike against the Company to enforce economic demands then being pressed for the terms of the addendum contract. The terminals were picketed on June 7 by the respective locals and all work ceased . The union bargaining committee, led by a Teamster International representative, and management, reached agreement on all terms on June 22, and the employees voted to ratify the settlement on June 22 and 23. All parties understood that there would be no binding contract until the International , with or through its Southern Conference, had approved the agreement. Such approval was not given until July 19, and on that day the local unions terminated their strike and removed the pickets. A substantial number of employees, at various terminals and out of all three locals, returned to work, and crossed the picket lines where they were found, before July 19, some on July 14 and some on July 17. All were back on the job shortly after the 19th. One of the three locals is Tulsa General Drivers, Warehousemen and Helpers, Local Union 523, which represents Rocket's employees at Tulsa, Ponca City and Pryor. Internal charges were brought within Local 523 176 NLRB No. 94 TULSA GENERAL DRIVERS 781 against a number of its members who crossed the picket lines and worked while the strike was .in force. For having so engaged in strike-breaking activities, the men were fined by the Union $250 each; then they proceeded through the regular established internal union appeals procedures, and the fines were confirmed. Local 523 is the named Respondent in this case, and the act of fining these members is said to have constituted restraint and coercion in violation of Section 8(bx 1 )(A) of the Act. There is no indication, nor is it claimed that the Respondent in any way attempted to cause discrimination in employment against any of its members . Unless the facts of this case can be significantly distinguished from the situation presented in N.L.R.B. v. Allis-Chalmers Mfg., Co., 338 U.S. 175, the complaint must be dismissed. The theory of complaint The attempt to remove this case from the reach of the court's holding in Allis-Chalmers rests squarely upon as assertion that when the employees in question returned to work on July 17, crossing the picket line of their own local union, there was a contract in effect. For this one reason the argument is made that the strike was "illegal," or "unprotected," and as Allis-Chalmers dealt with a lawful strike or picket line, the instant situation is sufficiently distinguished to require a finding that the Respondent Union fine was improperly coercive . By what reasoning the contract, if a binding contract there was, made the picketing illegal, is not explained . Clearly, however, the complaint stands or falls depending entirely upon whether or not it can be said the parties were bound by contract before July 14.' In their briefs, the General Counsel, and particularly the Company, as Charging Party, urge further grounds for an unfair labor practice finding, but these were not advanced at the hearing , were not litigated, and therefore need not be fully considered here . Especially is it appropriate, on this record , to disregard the contention that even if there was no contract, the fine - in the sum of $250 - was unlawful because "unreasonable." The Respondent was not asked to dispute or to defend against such a charge . It addressed itself purely to the question of whether there was or there was not a contract in effect at the time the employees resorted to the back -to-work movement. The record in its totality warrants a finding that there was no contract in effect at the critical time. More precisely, in terms of the issue of this case, the evidence as a whole does not support the allegation that the strike, which the employees dishonored, was illegal or unprotected . There is no occasion, therefore, to reach the question whether a union commits an unfair labor practice when it fines members for crossing an illegal or its unprotected picket line. Decision here is not to be taken as passing judgement upon that point of law. 'From the transcript of hearing: TRIAL EXAMINER : Mr. Gritta, if it should develop that there was no contract on the totality of the evidence when the hearing is over, that there was no contract until July 26th, would it still be a theory of this complaint that it was 8(bxlXA) for the union to have fined these members for crossing a picket line? MR. GRrrrA : You are putting me in a difficult position, because the complaint is couched, and the General Counsel 's position is there was a contract. I don't want to alter that position, Pertinent facts: Analysis This Company's collective-bargaining contractual relationship over the years has been as much with the Teamsters International , as it has been with the local unions in its limited territory. Basic to the local supplement it was negotiating in June and July of 1967 were two National Master Freight Agreements, one for over-the-road motor freight and one for local freight forwarding pickup and delivery. Each of these is literally executed, as were those which preceded them, between Rocket Freight and "National Over-the-Road and City Local Cartage Policy and Negotiating Committee and Local Union No. 523, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America." Each master contract also specified: "In addition to such Local Unions, the National Over-the-Road and City Cartage Policy and Negotiating Committee of the IBT, hereinafter referred to as `Union' or the `National Union Committee,' is also a party to this Agreement and the agreements supplemental hereto." Clearly, the Company was always dealing with a labor organization, or bargaining committee , much broader in scope than the particular local unions found in the State of Oklahoma. There was not any Board certification underlying the collective-bargaining relationship. The 1964-1967 master contracts, expiring on March 31, 1967, were reopened on December 2, 1966, by formal notice "on behalf of each of the Teamster locals and affiliates," sent to the Company by the National Policy Negotiating Committee in Washington, signed by the International Chairman. This was followed, on December 22, 1966, by an invitation, from the same National Committee, to a bargaining meeting in Washington to discuss the Union's demands for new master agreements; and this letter also advised the Company that "each local union . . . has given power of attorney to the negotiating committee to act in its behalf, subject to overall membership vote on any final offer ...." On December 29, 1967, Local 523 advised the Company in writing: You are hereby notified that the National Over-the-Road and City Cartage Policy and Negotiating Committee, the Southern Conference of Teamsters, and the undersigned local union as bargaining agents for the involved employees desire to negotiate changes or revisions in the National Master Freight Agreement and in all area, regional and local supplements , addendas, appendicies or riders thereto for the contract period commencing April 1, 1967, as provided in Article 37 thereof." Rocket chose not to attend the National conferences, either for negotiation of the two master agreements, or changes and revision in the supplements . In such cases the Union arranges local conferences with employers at a multiemployer meeting for that purpose , and such a meeting was held on May 15 at Tulsa, Oklahoma. Clarence Mendoiza, an International representative of the Teamsters, invited the Rocket Company also to attend. Rocket's representative at that meeting chose not to participate jointly with the other local cartage companies. In consequence Mendoiza met with Mr. Jess Crook, Jr., president of the Company, on May 17, May 24, and June 6 and June 22, when the substantive terms of Rocket's Supplement to the master agreements where ironed out. Present also were the officers of the three local unions - Nos. 516, 886 and 523, which operate in Oklahoma. The strike had started on June 7 and picketing was still in progress on June 22 when agreement was reached on all issues. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The bylaws of all Teamster unions require employee ratification as a condition precedent to formal execution of any collective-bargaining agreement . In this instance the employee votes were taken at the respective separate city terminals on June 22 and 23, Thursday and Friday, and the total vote - all employees counted as a single unit - was to approve the Supplement Agreement. A draft copy of the Supplement, prepared by the local unions, was then forwarded to Washington for approval by the International, but, contrary to the expectations of the local officials and even of International Representative Mendoiza, was disapproved. The strike continued. Finally, on July 19, the International did approve, and the strike was terminated by the locals. The final contract was signed on July 26. If this record showed nothing more than these activities, current and past, between the Company, on the one hand, and the local unions plus the National Over-the-Road and Local Cartage Policy and Negotiating Committee, on the other, it would have to be said the Employer was bargaining at all times with a labor organization broader than Local 523, and its sister Oklahoma locals, when negotiating the addendum to the 1967 master agreements. The formal written correspondence reopening old contracts and arranging meetings for new ones, came from the National organization , and the very negotiating conferences were held with an international representative . And, of course, the fact that the negotiations were intended to lead to modification, for local problem adjustments , of the master agreements, inescapably ties the National group with the local union and unions. All doubt on this score is removed by the further evidence, in the form of oral testimony, proving beyond question that all parties, the negotiators as well as the employees themselves , knew the settlement agreement had to be approved by "Washington ," or the International Union, before any binding contract could come into being. Thus Mr. Crook, the company president, said that at the last meeting Mendioza "said he would highly recommend these [the terms of the settlement] to the membership ... that he would highly recommend those to the International." "Mr. Mendioza's words were, if the membership ratified the agreement that he would highly recommend it to the International." Q. (By Mr. Gritta) Mr. Crook, after the 22nd of June meeting adjourned, did Mr. Mendoiza or Mr. Boyd indicate to you any time by which you could expect an answer from the International? A. Yes. Q. What did they tell you? A. Their plans were - June 22 I believe was on Thursday - Mr. Mendoiza made the statement he had to go to Washington I believe on the following Monday and they were to get the supplements typed out, each local, typed out, special delivery mail to Mr . Mendoiza at Dallas so he could have them when he went to Washington on Monday, which would have been the 26th of June. Mr. A. W. Jenkins, the Company's board chairman, gave like testimony : "...Mr. Mendoiza did bring up the fact this would have to be approved by the International. He said that it would be taken before the people as soon as possible, and if it was approved, he was leaving on Monday for Washington if my memory serves me correctly ...... It will be recalled that the employee ratification vote came on June 22 and 23. Boyd, an official of Local 523, reported this fact to Jenkins, and, as the latter continued to testify: "He called me at the office and told us we had a contract that had been ratified and he gave me the vote of the various locals, and they would write up this agreement that weekend so it would be airmailed to Mr. Mendoiza in Dallas so he could take it to Washington on Monday. He made it quite clear ... he said we might not be able to get this accomplished by worktime Tuesday morning but he was sure not later than Wednesday we would have word back from Washington and would be in a position to go back to work." The employees also knew there was no contract in effect until approved by the International Union. Maurice Cates, an employee at the Muskagee terminal: "Our business agent told us that due to this coming on the weekend and they had to go to a conference in Hot Springs, Arkansas, that it would probably be Monday or Tuesday or Wednesday at the latest before the International, the Southwest Conference I think were the words he used, would ratify the contract." Owen Brooner, of the Pryor terminal: Q. (By Mr. Gritta) Did Mr. Boyd make any statement to the members at that ratification meeting after the vote was taken? A. To the best of knowledge it sounded to me like he said, "You boys have got a contract." r s s Q. (By Mr. Ungerman) At the time of the ratification did you know the International would have to approve the contract? A. Well, I think it was mentioned they would have to ratify it, yes, sir. Brooner stayed on strike "because it [the contract] wasn't okayed yet." He crossed the picket line on July 17, although "I knew it [the contract] was not ratified at that time, yes, sir." Robert McLarenden, a picket captain, said that after the Tulsa employees had voted to ratify, Boyd said "You now have a contract." But McLarenden also admitted that even before the ratification vote he "had heard" that "the International, Southern Conference , had to approve it." It is an elementary principle of contract law that the question of whether or not a contract has come into being is determined by the' intent of the parties, however evidenced. These parties had a clear understanding that there would be no contract until the International Union had given its approval. The General Counsel seeks to avoid all the foregoing convincing evidence by pointing to the fact that at the major terminals - particularly Tulsa, where 35 of the 60 or so employees work, - the pickets were removed during the weekend of June 24-25, as the employees voted to ratify. Mendoiza and Boyd were that confident that the International would approve, and felt sure the strike would be over by Tuesday or Wednesday. They saw no point in continuing any irritating picketing with all immediate persons now amicably disposed. By Thursday word reached Tulsa that the International had disapproved, and back came the pickets, even at Tulsa., In such a sequence of events, it can hardly be inferred - in that the face of the direct evidence - that by its temporary removal of the pickets Local 523 precluded itself from thereafter asserting there was no contract yet. The important, and absolutely determinative fact, is that TULSA GENERAL DRIVERS 783 the strike never ceased ; no one returned to work , pickets or no pickets . It was the Union's policy to strike to enforce economic demands that the Supreme Court in Allis-Chalmers said could lawfully be enforced against its members by internal charges and imposition of fines. The picket line is only one form of evidence to show strike action . When a large group of employees changed their minds, on July 14 and 17 , and started work in defiance of their union's policy decision , they effectively broke the strike and thereby forced the International to approve the supplement agreement tentatively reached on June 22. I find that the strike in this instance was at all times lawful and that therefore the action by Respondent Local 523 in fining those members who broke ranks did not constitute an unfair labor practice . I shall therefore recommend dismissal of the complaint. The Company , which filed the charge, advances a theory of complaint greatly at variance from that of the General Counsel . It argues that even assuming there was no contract in effect until the International approved on July 19, the Union could not lawfully fine the members who scabbed . This contention rests upon an assertion that a majority of the employees in the bargaining unit agreed, or voted , or simply acted in harmony to discontinue the strike . Because, according to the Company, a majority so decided , basic principles of democracy demand that their will must prevail at any given moment, even to the extent of flauting union policy or decision, and even to the point of frustrating decisions regularly reached by the union hierarchy . I find no merit in this argument as support for this complaint. To start with , it is by no means certain the Charging Party has standing in a complaint proceding so drastically to alter the complaint theory of the General Counsel. More important, it is not true that a majority of the employees involved formally voted to put an end to the strike. There came a time when McLarenden , selfstyled ringleader of the strikebreakers, called other strikers to a meeting at the Tulsa terminal to discuss the situation. He also invited Jenkins, the company board chairman. There was talk of the Employer going out of business if the strike continued too long , and a petition was prepared for employee signatures. McLarenden traveled in the company , plane to other terminals to seek added signatures there . The petition, with 36 names, is addressed to the "Office of the President, International Brotherhood of Teamsters," and reads as follows : "The following members of the Teamsters Local No. 523 hereby respectfully request that you sign the most recently, or ,latest, contract negotiated with, the Rocket Freight Lines Company, and which contract was accepted by the majority of the membership of Teamsters Locals 523, 516, and 886." I view this petition as but a form of within -the-union discussion, between members and their officers. It is no more than a reminder, as it were, to the higher officials, of the employee ratification vote taken a week or two earlier. It had nothing to do with any decision to quit the strike. There is a second petition , dated at about the same itinte, and addressed to the Fort Worth Regional Office of ,the National Labor Relations Board . "The following :employees of the Rocket Freight Lines Company, members of Teamsters Locals No . 523, 516, and 886 hereby respectfully request that you rule in favor of the Rocket Freight Lines Company in their case against the International Headquarters of Teamsters ." When the International first refused to approve the settlement agreement, on about June 29, and the strike continued, the Company filed charges against the International and each of the three local unions, alleging violations of Section 8(b)(3) of the Act, on the ground that these unions had refused to sign a contract completely agreed upon. This charge was later withdrawn .' When a group of employees asked the Board's Regional Office to rule in favor of the Company against the International in the Section 8(b)(3) case, they may have indicated , obliquely, their view that the International was obligated to agree. More likely, their intent was to bring pressure upon the parent organization to yield to the employees' desires in the matter. In either case, it represented additional recognition on their part that International approval was a necessary requirement in the contract negotiations. Certainly, this second document also falls short of representing a majority vote to abandon the strike. What the Company is really saying here is that majority decision by the employees is found in the fact that a majority returned to work across the picket lines. If this be good basis for distinguishing this case from Allis-Chalmers, it makes a shambles of that decision. It would mean that a union may fine members but only if a minority disregard the union policy . There is nothing in the language of the decision pointing to such a qualified rule. On a broader basis the Company says that fundamental principles of democracy demand that the employee ratification vote preempts all other considerations, that it is somehow unfair, not nice, undemocratic, for any group of union officials or for distant parent organizations, to frustrate the will of a single bargaining unit majority, in this fashion. The argument brings echoes of Borg Warner in reverse .3 There the Employer insisted that before there could be a binding collective-bargaining agreement the Company 's last offer must be accepted by its employees in a ratification vote. The Supreme Court rejected this view, in part because: "It substantially modifies the collective-bargaining system provided for in the statute by weakening the independence of the `representative' chosen by the employees . It enables the employer, in effect, to deal with its employees rather than with their statutory representative." The essential purport of the argument made by the Rocket Freight Company here is to separate its own employees from their National Negotiating Committee, or, in effect, the International Teamsters Union. But it is the chosen representative of the employees themselves which speaks, and not a majority of the employees in a particular bargaining unit which at any given moment prefers a course of action deemed desireable by their employer. Indeed, as shown above by the two petitions signed by the employees, even those employees of this Company who wished to return to work , continued to recognize the authority they had extended to the International Union or the Southern Conference of Teamsters. 'The General Counsel argues that the International's action in approving the contract after the 8(b)(3) charge was filed proves there never was any requirement for International approval. Post hoc, propter hoc This reasoning merits no discussion. 'N L.R.B. v. Wooster Division of Borg Warner 356 U.S. 342. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Tulsa General Drivers, Warehousemen and Helpers, Local It is hereby recommended that the complaint against Union 523, be, and it hereby is, dismissed.