Local 142, Teamsters

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 142, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and William Kusley. Case 13-CB-3366 April 23, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND KENNEDY On January 21, 1971, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. There- after, the General Counsel filed exceptions to the Trial Examiner's Decision with a supporting brief, and the Respondent filed cross-exceptions and a brief in sup- port thereof. 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 Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and 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 Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint herein be, and it hereby is, dismissed in its en- tirety. The Trial Examiner inadvertently referred to "Ralph Vonasch" as "Ralph Bonasch" and "Sawochka" as "Sawachka." unfair labor practices in violation of Section 8(b)(1)(A) of the Act. Specifically, the complaint alleged that on or about April 24, 1970, Respondent threatened its member William Kusley with physical force and assault if Kusley did not cease from engaging in protected concerted activity and on or about May 26, 1970, Respondent discriminatorily refused to accept the back dues of its member William Kusley because of the belief that Kusley was going to file charges under the Act against Respondent. Upon the entire record in the case (including consideration from the briefs received from the General Counsel and Re- spondent) and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE COMMERCE FACTS Yellow Transit Freight Lines, Inc., Steel Dispatch, Inc., and McClain Trucking, Inc., furnished services for which they received in excess of $50,000 annually involving the movement of goods in interstate commerce directly from their Lake County, Indiana, establishments to points in states other than Indiana. At all times material Respondent has represented em- ployees of numerous motor carriers and trucking concerns located in Lake County, Indiana (among which are Yellow Transit Freight Lines, Inc., Steel Dispatch, Inc., and McClain Trucking Company, Inc.), for the purpose of collec- tive bargaining with respect to the employees' rates of pay, wages, hours of employment, and other terms and conditions of employment; and at all times material Respondent has had collective-bargaining agreements with said motor carriers and trucking concerns including Yellow Transit Freight Lines, Inc., Steel Dispatch, Inc., and McClain Trucking, Inc. During the past calendar year, a representative period, the said motor carriers and trucking concerns specifically includ- ing Yellow Transit Freight Lines, Inc., Steel Dispatch, Inc., and McClain Trucking, Inc., furnished services for which they received in excess of $50,000 involving the movement of goods in interstate commerce directly from their Lake County, Indiana, establishments to points in state other than Indiana. On the basis of the foregoing facts I find that the employers in question have been engaged in and are engaged in "commerce" and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act. II. THE RESPONDENT AS A LABOR ORGANIZATION Local 142, International Brotherhood of Teamsters, Chau- ffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON Trial Examiner: This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Chicago, Illinois, on October 22, 1970, pursuant to due notice. The complaint, issued by the representative of the General Counsel for the National Labor Relations Board (herein called the General Counsel and the Board), and based upon a charge and an amended charge filed by William Kus- ley, an individual, on June 16 and July 16, 1970 respectively, alleged that Local 142, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union or Respondent), had engaged in 111. THE UNFAIR LABOR PRACTICES The General Counsel correctly states in its brief the issues herein as follows: (a) Is a determination that Kusley is an "employee" within the meaning of the Act, a necessary prerequisite in finding Respondent's conduct violative of Section 8(b)(1) A). (b) Upon consideration of the record facts, is William Kusley an "employee" within the meaning of the Act? (c) Did Respondent violate Section 8(b)(1)(A) of the Act when, as a result of its belief that Kusley was going to file charges against Respondent under the Act, Re- spondent refused to accept Kusley's back dues? (d) Did Respondent violate Section 8(b)(l)(A) of the Act when it threatened Kusley with physical force and 190 NLRB No. 19 LOCAL 142, TEAMSTERS assault if Kusley did not cease his protected concerted activity at the Inland Steel picket line? The Charging Party, William Kusley , is the owner of a tractor-trailer rig which for several years he has utilized in hauling steel under lease arrangements with various freight companies . On January 13, 1968, Kusley entered into a lease agreement with Steel Dispatch , Inc., which was still in effect at the time of the hearing. From 1957 to 1967 Kusley hauled steel for the Yellow Transit Freight System under a lease automatically renewable from year to year . In 1967 Kusley's connection with the Yellow Transit Freight System was ter- minated . This action resulted in unfair labor practice charges being filed by Kusley against Yellow Transit Freight System and a subsequent decision in his favor by the Board , Yellow Transit Freight System, Steel Hauling Division, 175 NLRB No. 113 The significance of the Board's decision, if any, in that case as regards the matter at hand ' would appear to be reflected in the following excerpt from the Trial Examiner's findings which were adopted by the Board: According to Kusley, during the summer of 1967, the owner-operator drivers picketed Local Union 142 over the matter of the alleged failure of Local 142 to cooper- ate with them . Kusley testified that he tried on many occasions to contact the union but could get no coopera- tion, so in August 1967, he organized a strike. According to Kusley, he and Jim Levitt put out posters calling for a general strike, which started at Gary, Indiana, and extended directly to an 8 state area, and indirectly per- haps a 20 state area involving possibly 20,000 men. Since approximately 1957 Kusley has been a member of Respondent Union Previous to his termination with Yellow Transit Freight System in 1967 his dues were paid through a checkoff system . Since that time although Kusley's offers to pay dues have been rejected by the Union , he has never been formally suspended or expelled from the Union nor has he been notified in any manner that he is not a member in good standing. In February 1970 Kusley asked the union secretary treas- urer, Donald Sawachka, if he would accept Kusley's dues. Sawachka said he would not accept them . Thereafter, on or about March 20, 1970, Kusley made the first of a series of attempts to pay his back dues . In this connection he called the union office and made inquiry as to the proper procedure for paying back dues. He was informed that it was a simple matter of coming down to Respondent's offices and paying them Thereupon Kusley in the company of two friends went to the union offices for the purpose of paying his dues. When Kusley informed the dues clerk of his purpose she pulled a card from an index file and immediately left the room. A few minutes later she returned and asked if Kusley was "the Mr. Kusley from rural route 2?" and left again. When she re- turned a few minutes later she informed Kusley that Union President Ralph Bonasch wanted to talk to him in Bonasch's office When Kusley indicated that he wanted his friends to accompany him into Bonasch's office he was informed that Bonasch wanted to see him alone. About what was said in this interview Kusley testified credibly as follows: I went into Mr. Bonasch's office. I had the tape recorder on .. 2 In the conversation I told Mr . Bonasch I would like to pay my back dues . I tried to pay my back dues I was asked to take official notice of the Board's decision Kusley made recordings of his and another conversation with Bonasch The General Counsel offered in evidence the tape of the latter conversation together with a typed transcript of it as rebuttal I refused to receive the exhibits on the grounds that Kusley 's testimony to the same effect stood undemed in the record 59 before and they wouldn't accept them . We talked for a while and Mr. Bonasch said no hard feelings and that type of thing. I said, there is no hard feelings on my part. He said he would talk to Donald Sawachka about ac- cepting my back dues . Just before I left Mr. Bonasch I told Mr. Bonasch I had filed labor charges. against one of the truck lines and in the process Donald Sawachka was told to accept my back union dues. I just told Mr. Bonasch, I would like you to know this so there won't be any misunderstanding . Then Mr . Bonasch told me he would call me back in a day or so. I left the office. On March 23 Kusley made a telephone call to the Union about which he testified credibly as follows: I asked for Mr Bonasch . The Teamsters' girl answered and said, "This is Teamsters ' Local 142." I told her I would like to speak to Mr. Bonasch, if he is in. She said all right. Mr. Bonasch came on the phone. I asked, "Is this Mr. Ralph Bonasch." He said, "Yes, this is Ralph." I said, this is Mr. Kusley. Did you come to a decision about my paying the back dues . He said, no. He talked to Donald Sawachka about it and Donald was the secre- tary-treasurer of Local 142 . He was going to take it up with the people in Washington , D. C. I said, what is the reason for this? It is hardly a normal procedure, I would think. He said, well he is going to take it up with the people in Washington, D. C. Mr . Bonasch told me he would call me back the next day. The following day Kusley again called Bonasch and was informed that Bonasch had not "come to a decision yet" and would call back in several days Thereafter on April 7, 10, 13, 24, and 29 Kusley made unsuccessful attempts to reach Bo- nasch on the telephone . On May 26 Kusley again called the Union. This time he was successful in reaching Bonasch and had a conversation with him about which Kusley testified credibly as follows: I told him , this is Mr Kusley. I asked if this is Mr. Bonasch. He said, yes, this is Mr. Ralph Bonasch. I asked him, have you come to a decision on my dues. It has been a long time. Mr. Bonasch said, we came to a decision we are not going to accept your dues . I at that time said, what is the reason for this. He said, "Some people have been coming into the Teamster hall here and telling me you are going to file an unfair labor charges against me." Mr. Bonasch said, "Go ahead, take me to the labor board." On April 24 Kusley went to the Inland Steel plant at Indiana Harbor where Local 142 was picketing. About 10 steel haulers were there including several business agents of the Local . About what took place at this time Kusley testified credibly as follows: I talked to the men there. I asked the men what was going on . I asked them how the strike was going and what they were trying to get and things like that. About this time when I was talking to the men Jake Abshire walked up to me and says, "What are you doing here?" I said, "I am talking to the men." He said, "Well, get out of here. We don't want you around here ." I said, "Well, I thought this was a free country. You tell me I can't even stand here and talk to the men here?" He said, "No, get out of here. Get out of here or we are going to carry you out of here." I said , "Well, it is kind of unusual. I don't see where I am hurting anything just talking to the men." He said, "Donald Sawachka gave him orders you are not suppose to be on the picket line and you are not suppose to be talking to the men. Now , if you don't get out of here we are going to carry you out " About this time the other two or three business agents got around me and made threatening gestures at me.... They all- 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was about three or four big men all around me. Jake Abshire talked right in my face. I guess he had his fist clenched. He said, "You better get out of here or we are going to carry you out of here." I said, "Well, I am not going to leave. It is a free country. I am going to stay here and talk to the men. If you are going to carry me out of here start carrying. So, Jake Abshire said he was going to call the Teamsters local back and get some men up there to carry me away. He says, "We don't want you around here." On cross-examination Kusley testified that his conversa- tion with Abshire lasted about 5 minutes and that he (Kusley) stayed at the picketing site about 10 or 15 minutes . He also testified that Abshire did go to a telephone and placed a call that Kusley claimed was to the Union. In his testimony Ab- shire revealed that the call was to his "switchboard operator to notify the Chicago Police to send a squad car out there." The foregoing constitutes the total credited evidence ger- mane to the issues except for considerable testimony about Kusley's work procedures and other circumstances con- nected with his job of hauling steel. I do not consider this latter evidence because in my opinion even if Kusley was determined to be an employee entitled to the protection of the Act and not an independent contractor not entitled to the protection of the Act as contended by Respondent, the evi- dence does not establish violations of Section 8(b)(1)(A) by Respondent. Conclusions Section 8(b)(1) of the Act makes it an unfair labor practice for a labor orgainzation or its agents ... "to restrain or coerce ... employees in the exercise of rights guaranteed in Section 7:... " Section 7 provides that: ... employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employ- ment as authorized in Section 8(a)(3) of the Act. While I do not believe that there was any altruism or goodwill in the Union's giving Kusley a "free ride" the fact is that regardless what its motivation, the mere act of refusing to accept his dues while still retaining him as a member does not in my opinion restrain or coerce him in the exercise of any of the rights guaranteed him as an employee in Section 7 of the Act. Nor do I see how it can be said that Kusley was engaging in concerted activity when he dropped in on the picket line at Indiana Harbor on April 24. The most that the evidence reveals in this respect is that Kusley was simply "kibitizing" as demonstrated by his inquiries as to "what was going on" and "what they were trying to get." Whatever rights of Kus- ley the Union was restraining or coercing here in my opinion were not connected with his Section 7 rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Upon the basis of the foregoing findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW Local 142, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America has not engaged in unfair labor practices within the meaning of Sec- tion 8(b)(1)(A) of the Act as alleged in the complaint. RECOMMENDED ORDER Accordingly, I recommend that the complaint be dis- missed.