Chauffeurs, Teamsters and Helpers, Local 414

National Labor Relations Board - Board Decisions

Apr 24, 1963

142 N.L.R.B. 273 (N.L.R.B. 1963)

CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 414 273
Chauffeurs, Teamsters and Helpers , Local Union No. 414, Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America [Fugate and Girton Driveaway,
Inc.] and Earl A. DeHart and R. Harold Richardson. Cases
Nos. 13-CB-1185-1 and 13-CB-1185-2. April,04,1963
DECISION AND ORDER
On November 8, 1962, Trial Examiner Owsley Vose issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent Union had not engaged in certain unfair labor practices al-
leged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached Intermediate
Report. Thereafter, the General Counsel filed exceptions to the In-
termediate Report and a supporting brief and the Respondent Union
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated, its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
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 Interme-
diate Report, and the entire record in the case, including the exceptions
and briefs, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
ewe agree with the Trial Examiner that ( 1) the Respondent Union did not cause or
attempt to cause the Employer herein to discriminate against the Charging Parties in vio-
lation of Section 8(b) (2) of the Act and ( 2) under the circumstances of this case, the
Respondent Union's failure to represent the Charging Parties in the grievance procedure
was not violative of Section 8(b) (1) (A ) of the Act . However, we find it unnecessary in
the disposition of this case to pass upon the Trial Examiner 's conclusions that the griev-
ance procedures in the truckaway agreements culminate in binding arbitration , that such
procedures are fair , and that by the terms of such procedures specified in said agreements
the Respondent Union was relieved of any obligation to represent the Charging Parties.
Nor do we reach the Trial Examiner 's further conclusion that the scheme of representa-
tion embodied in the Act rules out dual representation.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Earl A. DeHart and R. Harold Richardson on March 5,
1962 , the General Counsel, on June 1 , 1962, issued a complaint against the Respond-
ent Chauffeurs , Teamsters and Helpers , Local Union No. 414, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, herein called
Local 414, alleging that it had violated Section 8 ( b) (2) and 8 (b) (1) (A) of the Na-
tional Labor Relations Act. Local 414 filed an answer denying the unfair labor prac-
tice allegations of the complaint . The case was heard by Trial Examiner Owsley
Vose on August 7 and 8 , 1962 , at Fort Wayne, Indiana. The General Counsel and
the Respondent Local 414 appeared and were represented at the hearing, were af-
forded a full opportunity to be heard , to examine and cross -examine witnesses, and
142 NLRB No. 34.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to present oral argument. The General Counsel and the Respondent filed briefs
which have been fully considered.'
Upon the entire record and my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FINDINGS
Fugate and Girton Driveaway, Inc., an Indiana corporation, is engaged at Foit
Wayne, Indiana, and Springfield, Ohio, in the business of transporting for others
motor vehicles, usually new trucks, by the so-called truckaway and driveaway sys-
tems. Under the truckaway system, the vehicles being transported are carried on
Fugate and Girton's trailers which are pulled by tractors owned by drivers in Fugate
and Girton's employ. Under the driveaway system, Fugate and Girton furnishes
drivers to deliver vehicles (either one or more vehicles in combination) to their des-
tination using the power of one of the vehicles being transported. In the course of its
business in 1961, Fugate and Girton performed services for others in States other than
Indiana and Ohio which were valued in excess of $1,000,000. I find that Fugate and
Girton is engaged in commerce within the meaning of Section 2(6) and (7) of the
Act, as the Respondent Local 414 admits, and that it will effectuate the policies of
the Act to assert jurisdiction herein
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Local 414 is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues involved
The issues raised by the consolidated complaint and litigated at the hearing are
(1) whether Local 414 utilized the grievance procedure established under its
collective-bargaining contract with Fugate and Girton to cause that concern to lay
off two of the latter's truckaway drivers, Richardson and DeHart, in violation of
Section 8(a)(3) of the Act, thereby violating Section 8(b)(2), and (2) whether
Local 414 violated Section 8 (b) (1) (A) of the Act by failing fairly to represent
Richardson and DeHart in grievance proceedings which were held pursuant to the
contract. Richardson and DeHart suffered a loss of 3 months' employment by
Fugate and Girton (from September 26 to December 27, 1961), while grievance
proceedings were pending before the Automobile Transporters Joint Conference
Committee, pursuant to the grievance provisions of the contract.
B. Background
1. The Automobile Carrier Truckaway Agreement
On March 1, 1961, the National Truckaway and Driveaway Conference of the
International Brotherhood of Teamsters, for the employees, and the Automobile
Transporters Labor Division, for the employers engaged in truckaway and driveaway
operations, entered into the "Automobile Carrier Truckaway Agreement." The
agreement has a 3-year term. This is a nationwide agreement covering all the em-
ployees of organized truckaway and driveaway carriers. After the national agreement
was reached by the negotiating committees, the various carriers represented by the
Automobile Transporters Labor Division signed individual contracts with each of
the various Teamsters locals representing their employees. These were uniform
contracts in the terms of the Automobile Carrier Truckaway Agreement. Fugate
and Girton signed one contract with Local 414 covering its Fort Wayne, Indiana,
drivers, and another in identical terms with Local 654 covering its Springfield, Ohio,
drivers.
These contracts (article 4, section 1) provide that employees longest in the service
of the employer shall be retained in case of a reduction in force, and that terminal
seniority shall prevail at all times. with the exception noted immediately below.
Where a new operation is begun, the contracts (article 4, section 6) provide that
the employer shall offer affected employees the opportunity to transfer to the
1 Subsequent to the hearing the General Counsel filed a "motion for certain corrections
to the record." No opposition having been filed thereto , the General Counsel's motion Is
hereby granted and the record is corrected accordingly.
CHAUFFEURS, TEAMSTERS AND HELPERS , LOCAL 414 275
new operation and that in this special situation the employees' companywide seniority
governs (article 4, section 6(a)(1)).
The contracts further provide that seniority lists shall be kept posted at all
times and that controversies over employees' seniority standings shall be disposed
of under the grievance procedure prescribed in the contracts (article 4, section 1).
The grievance procedure culminates in arbitration which is binding on all parties
to the contracts (article 7, section 2(c) ).
The undisputed evidence establishes that these seniority lists are posted at the
employees' base terminal and that employees acquire seniority only at their base
terminal regardless of the fact that they may temporarily work out of another
terminal. It is also undisputed that under the practice which has grown up under
the contracts, no seniority rights are acquired at terminals away from their base
terminal at which employees may be temporarily assigned.
The practice under the contracts in dispatching truckaway drivers from Fugate
and Girton's terminals at Fort Wayne and Springfield is to dispatch the regular
drivers appearing on the seniority lists for each of these terminals on a first in and
first out basis regardless of their seniority. However, drivers temporarily assigned
to a terminal other than their home terminal are assigned runs only after all the
regular drivers holding seniority at that terminal have been given runs. In other
words, they are given the extra or leftover work only.
2. Richardson's and DeHart's seniority status at Fugate and Girton
The Charging Parties, Richardson and DeHart, were truckaway drivers at Fugate
and Girton's Springfield, Ohio, terminal when the events under consideration in this
case began. They were both members of the Springfield Local 654. Richardson was
the No. 1 man on the Springfield truckaway seniority list. DeHart was the No. 5
man on the list. There were six drivers on the Springfield truckaway seniority list
at this time. Under the contracts, Richardson and DeHart could not be permanently
assigned away from their Springfield base terminal without their consent. As long
as Fugate and Girton had work for five truckaway drivers at Springfield, Richardson
and DeHart were both entitled to insist on working out of Springfield, and it was
Fugate and Girton's obligation to do the modification work on their ti actors, if any
were necessary, to provide work for them. As long as there was work for one
truckaway driver at Springfield, Richardson, as the No. I man, was entitled to claim
this work. And DeHart, if there was not sufficient work available for five drivers at
Springfield, could elect to go on layoff status at Springfield rather than be assigned
elsewhere against his will.
3. Fugate and Girton's establishment of a new truckaway operation at Fort Wayne
Prior to January 1961, Fugate and Girton conducted only driveway operations from
its Fort Wayne terminal. In 1960 International Harvester Company, one of Fugate
and Girton's principal shippers, commenced manufacturing at its plant at Fort
Wayne a "Jeep" type vehicle called the "Scout" of a kind it had not previously
made. International Harvester Company made arrangements with Fugate and Girton
to handle the shipments of Scouts to International Harvester dealers out of its
Fort Wayne terminal. Because of the newness of the Scout there was uncertainty
all around as to the reception it would receive from the purchasing public. Con-
sequently when Fugate and Girton initially made plans to haul the Scouts it was
anticipated that four trailers could take care of the volume of business which would
be available. It was also believed that after the initial supplying of dealers with
vehicles, not even four drivers would be kept busy hauling Scouts. This is the
credited testimony of John R. Cassidy, the president of Fugate and Girton. Special
trailers capable of carrying seven Scouts had to be procured to haul the Scouts,
and because of the expense and the uncertainty as to the amount of work involved,
President Cassidy did not want to obtain any more seven-car trailers than were
absolutely necessary.
In October 1960 Fugate and Girton hired Larry Taylor and Archie Meade at
the Springfield, Ohio, terminal , for the Scout operation which had not yet begun.
They purchased tractors and worked at the Springfield terminal while awaiting
the commencement of Scout shipments. These began about January 1, 1961, and
Meade and Taylor started hauling Scouts out of Fort Wayne at this time as the No. 1
and No. 2 men at that terminal.
To round out the complement of four drivers which he anticipated would be
needed to take care of the initial stocking of dealers with Scouts, President Cassidy
assigned the Charging Parties, Richardson and DeHart, to the Fort Wayne terminal
712-548-64-vol. 142-19
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on a temporary basis. Cassidy selected Richardson and DeHart because their
tractors were suitable for hauling the seven-car trailers used at Fort Wayne and
would have had to be modified before they could be used on the five-car operations
which shippers at the Springfield terminal were beginning to demand . The trailers
which Richardson and DeHart had been hauling out of Springfield were four-car
trailers. Cassidy told Richardson and DeHart at the time of this assignment that
they would be hauling out of both the Fort Wayne and the Springfield terminals.
Cassidy, as he admitted , contemplated at the time he assigned Richardson and DeHart
to Springfield that he would be calling the two men back to Springfield after the
initial rush of deliveries at Fort Wayne had been taken care of.
4. The expansion of Fugate and Girton 's Scout operation at Fort Wayne
The demand for Scouts was greater than originally anticipated and required
Fugate and Girton to expand its Fort Wayne truckaway operation . In February
1961 , President Cassidy called Ben Taylor , who had previously worked for Fugate
and Girton , and sought to persuade him to buy a tractor and go to work for the
Company at Fort Wayne . Cassidy told Taylor that Larry Taylor and Meade were
"doing real well" and that he would be the No. 3 man at Fort Wayne if he decided
to come back to work for the Company. Cassidy explained that he had Richardson
and DeHart working in Fort Wayne on a temporary basis and that they would
be sent back to Springfield after the rush was over . Ben Taylor decided to accept
Cassidy's offer and went to work on February 15, 1961 . He joined the Springfield
Local not long after being hired. During March 1961 Fugate and Girton hired
four additional drivers for the Fort Wayne truckaway operation . They were all
hired at Springfield and joined the Springfield Local. According to Ben Taylor, they
were all hired with the same understanding as to the temporary nature of Richard-
son's and DeHart 's assignment to Fort Wayne as Ben Taylor was given . Like Ben
Taylor, some of them had to buy tractors in order to go to work
The volume of Scout hauling to be done at Fort Wayne so exceeded previous
expectations that Richardson was not sent back to Springfield at all during the
spring and summer of 1961 , with the exception noted below . DeHart was sent back
to Springfield on January 8, 1961, but was returned to Fort Wayne on January 24,
and continued to pull loads out of that terminal for the rest of the spring and summer
of 1961, subject to the interruption discussed below.
5. Events in the pre -Section 10 (b) period
Although Section 10(b) of the Act precludes the basing of unfair labor practice
findings upon conduct occurring more than 6 months prior to the filing and service
of the charge , the General Counsel offered , and I received , evidence of events occur-
ring in the period preceding September 6, 1961 (the charges in this case were filed
on March 5, 1962 ), because such events are relevant in appraising Local 414's con-
duct within the 6-month period.
a. Local 414 demands that the Fort Wayne based drivers transfer from
the Springfield Local
In March and April 1961 , the drivers at Fort Wayne were told by Fort Wayne
Local 414 Business Agent Harold Schutte and Alternate Steward Ivan Spitsnaugle
that they would have to transfer from Springfield Local 654 to Fort Wayne Local 414
if they wanted to pull another load out of Fort Wayne. When DeHart asked
Spitsnaugle whether this applied to Richardson and himself , Spitsnaugle replied that
they were up here "as extra help and didn 't have to transfer."
Early in April , five of the Fort Wayne drivers transferred to Fort Wayne Local
414, and later on the two remaining regular Fort Wayne drivers transferred.
Richardson and DeHart did not transfer at any time.
b. Local 414 insists that Richardson and DeHart be returned to Springfield
and that they be given extra work only in Foit Wayne
In July 1961 the volume of Scouts to be transported dropped off considerably and
the drivers in Fort Wayne had to wait a week or more between loads Ben Taylor,
the No 3 man on the Fort Wayne truckaway seniority list, asked Fort Wayne Local
414 Steward James Howey to find out from Fugate and Girton when Richardson
and deHart were going to be sent back to Springfield. Howey spoke to William
Grant, terminal manager at Fort Wayne for Fugate and Girton , about the matter.
Grant said he would find out and let Howey know. Subsequently Grant informed
CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 414 277
Howey that Richardson and DeHart were not going to be sent back to Springfield,
that Fugate and Girton had a considerable sum of money invested in the trailers
which Richardson and DeHart were hauling and that Richardson and DeHart were
not going to be sent back to Springfield until these trailers were paid for.
After receiving this information about July 31, 1961 , Local 414 Alternate Steward
Spitsnaugle and Business Agent Messmore both informed Terminal Manager Grant
that Richardson and DeHart were only to be given the extra or overflow runs, that
the Fort Wayne based drivers were to be used first. When Grant informed Richard-
son and DeHart that Local 414 would not let him give them a load , and that they
would have to return to Springfield , DeHart asked Spitsnaugle why Local 414 would
not permit them to load . Spitsnaugle 's reply was that the two men were only in
Fort Wayne temporarily , that there was only enough work for his men, and that
they would have to return to Springfield . It happened that at that time there were
three loads ready for departure from the terminal and there were only two of the
Fort Wayne based drivers available. DeHart requested Grant to give him this third
load. Terminal Manager Grant , after calling the union hall, assigned DeHart this
load.
c. President Cassidy refuses to order the return of Richardson and DeHart to Spring-
field and takes the position that they are the No. 3 and No. 4 drivers at Fort
Wayne; Local 414 acquiesces in this position
After completing his delivery DeHart returned to Springfield about August 2 or 3,
and spoke to Cassidy, the president of Fugate and Girton. Richardson talked to
Cassidy about this same time. They told Cassidy that they had been informed that
only extra work was available for them in Fort Wayne. Up until this time Richard-
son and DeHart had been sharing work with the Fort Wayne based drivers, all of
whom were members of Local 414, on a first in and first out basis. Cassidy told
them there was no work for them in Springfield,2 that they had been in Fort Wayne
too long to come back to Springfield and claim their seniority there. After calling
Albert D. Matheson, the secretary of the Automobile Transporters Joint Conference
Committee, the top tribunal provided for in the grievance provisions of the contracts
to hear grievance matters, Cassidy instructed Richardson and DeHart that they were
to return to Fort Wayne in the No. 3 and No. 4 positions, respectively.
As indicated above, Fugate and Girton's seniority lists posted throughout this en-
tire period, including the list dated August 1, 1961, carry Richardson and DeHart in
the No. 1 and No. 5 positions on the Springfield list, and carry Ben Taylor and
Luther Blue in the No. 3 and No. 4 positions on the Fort Wayne list. At no time
thereafter did the names of Richardson and DeHart ever appear on the Fort Wayne
seniority list.
Richardson called James Feltis, the secretary-treasurer of Springfield Local 654,
of which he was a member, for advice. As a result of receiving this call, Feltis called
Cassidy and inquired about the seniority status of the two men. Cassidy infoi med
Feltis that originally Richardson and DeHart had been sent over to Fort Wayne as
temporary help on the Scout operation, but that they had been there so long they
now had permanent status there so far as Fugate and Girton were concerned.
Subsequently, both Richardson and DeHart went to see Feltis. He told them that
there were rumors of a grievance being filed if they returned and claimed their
Springfield seniority, said that they had been in Fort Wayne too long to hold their
seniority in Springfield, and confirmed Cassidy's instructions to them to return to
Fort Wayne in the No. 3 and No. 4 positions. Feltis added that he would call
Matheson, the secretary of the Automobile Transporters Joint Conference Committee
in Detroit.
Richardson and DeHart returned to Fort Wayne about August 4, 1961, pursuant
to President Cassidy's instructions. They talked with Local 414 Business Agent
Schutte at the terminal in the presence of Steward Howey and Dispatcher Elwin
McKenzie. Richardson explained the understanding pursuant to which he had re-
turned to Fort Wayne, namely, that if any problem arose out of his assuming the
No. 3 position at Fort Wayne, that it would be disposed of under the grievance pro-
cedure provided in the contract. Richardson added that if Schutte had any question
about his returning to work in the No. 3 position, Schutte was to call Matheson in
Detroit.
2 Cassidy later sought to explain his position in this regard by stating that by this time
the shippers out of Springfield were demanding that five-car trailers be used (Richardson
and DeHart had previously hauled four-car trailers) and that Richardson's and DeHart's
tractors were not readily convertible to five-car trailer hauling.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After Richardson gave Schutte Matheson's telephone number in Detroit, Schutte
left to call Matheson. According to Richardson's credited testimony, when Schutte
returned after making the call Schutte stated as follows. . this is straight from
the horse's mouth, `Richardson will be No. 3 and DeHart No. 4,' and you go down
and get your ass to the Union Hall and transfer and tell DeHart to do the same
thing." Richardson assented, but before he had a chance to do so McKenzie told him
that there was a load to be taken out immediately. When Richardson returned
several days later after delivering this load, he was advised by Alternate Steward
Spitsnaugle and Dispatcher McKenzie not to be in any hurry about transferring, as a
grievance had been filed. A few days thereafter, Schutte told DeHart that he was
going to have to transfer to Local 414 but to wait until the grievance was settled before
doing so.
Thereafter, until the Local Joint Committee rendered its decision on September 26,
1961, Richardson and DeHart continued to share the work at the Fort Wayne terminal
with the regular Fort Wayne truckaway drivers. They have not at any time trans-
ferred to Fort Wayne Local 414.
C. Events during the 6-month period prior to the filing of the charges herein
1. The proceedings before the Fort Wayne Local Joint Committee
The first event occurring within the 6-month Section 10(b) period was the hearing
of the Fort Wayne Local Joint Committee on September 26. This hearing was held
to consider the formal written grievance filed by Ben Taylor on August 8, 1961. In
this grievance, Taylor, in effect, alleged that he had been assured by President Cas-
sidy when he was hired for the Fort Wayne operation that he would be the No. 3
man at Fort Wayne, and that Fugate and Girton's assignment of Richardson and
DeHart to permanent positions as Nos. 3 and 4 drivers at Fort Wayne prejudicially
affected his seniority rights and caused him to suffer the loss of employment which
he otherwise would have had.
The Local Joint Committee in Fort Wayne consisted of two officials from Local 414
and the representatives of two trucking concerns having terminals in Fort Wayne.
This panel heard Terminal Manager Grant, representing Fugate and Girton, sug-
gest that in view of the length of time Richardson and DeHart had been in Fort
Wayne, they were entitled to the No. 3 and No. 4 positions in Fort Wayne. However,
Grant stated that Fugate and Girton was somewhat in a quandary about this matter
and desired the panel to make a determination. Local 414 Business Agent Schutte
presented the case for Taylor who had filed the grievance. Schutte pointed out that
business had fallen off in Fort Wayne and there was not enough work to keep all the
men busy; consequently he requested that Richardson and DeHart, whom he asserted
were in Fort Wayne on a temporary basis, be returned to Springfield where they
still had their original seniority standings. Schutte also called the attention of the
panel to the fact that Richardson's and DeHart's names had not appeared on the
Fort Wayne seniority list, that they had not questioned the absence of their names
from the Fort Wayne list, and that Richardson and DeHart had been given an op-
portunity to transfer to the Fort Wayne Local and had refused to do so, and accord-
ingly should only be given extra work at Fort Wayne.3 It is this last statement of
Schutte at this panel hearing upon which the General Counsel mainly relies as
establishing Local 414's illegal motives in utilizing the grievance procedure to oust
Richardson and DeHart from jobs at Fort Wayne.
DeHart and Richardson were not notified of the hearing before the Local Joint
Committee and did not participate therein. All parties participating in the proceed-
ing had interest adverse to Richardson's and DeHart's continued working in Fort
Wayne on a regular basis
The panel of the Local Joint Committee after considering the matter unanimously
decided to uphold the position of Local 414, as follows:
SEPT. 26, 1961.
Union position that Earl DeHart & Robert Richardson have no seniority at
the Ft. Wayne terminal & the 2 drivers are still carried on the Springfield sen-
iority list therefore they have no seniority in Ft. Wayne, Ind. & will pull extra
loads only after the Ft. Wayne domiciled drivers are working. There is no back
pay involved.
8 In this connection Schutte explained at the hearing that under the reciprocity under-
standing with other locals, when a member of our local transferred permanently from one
terminal to another , he joined the local having jurisdiction over the new terminal.
CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 414 279
2. Fugate and Girton's refusal to put Richardson and DeHart to work at Springfield
on September 27
Terminal Manager Grant promptly notified Richardson and DeHart of the decision
of the Fort Wayne Local Joint Committee, telling them that the Committee had
voted away their seniority. They were never shown a copy of the Committee's
decision. Richardson and DeHart returned to Springfield and reported for work
at the Fugate and Girton terminal. President Cassidy told them that they "worked
in Fort Wayne" and that he had no work at Springfield for four-car trailers of the
kind their tractors had previously hauled. As a result the two men lost 3 months'
work.
Richardson and DeHart also informed Business Agent Feltis of Springfield Local
654, of which they were members, that the Committee had voted away their seniority
in Fort Wayne. Feltis, apparently regarding the decision of the Fort Wayne Local
Joint Committee as holding that DeHart and Richardson were entitled to their
original seniority at Springfield, promptly announced as follows: "I'm not going to
let them get away with that, you have no right to appeal but I can and I will. This
thing was supposed to have gone to Detroit for a settlement and I'm going to take
it up there."
3. The proceedings of the Automobile Transporters Joint Conference Committee
at Detroit
As he had announced, Feltis instituted proceedings before the Joint Conference
Committee at Detroit which would in effect review the decision of the Fort Wayne
Local Joint Committee. The case was heard October 18, 1961. Feltis notified
DeHart of the date of the hearing. When DeHart questioned Feltis as to whether it
would be necessary for Richardson and him to be at the hearing, Feltis answered,
"No," that he was going to represent them. Consequently they did not attend the
hearing in this proceeding either.
At the hearing Feltis took the position that Richardson and DeHart belonged on
the Fort Wayne seniority list pointing out that they had been in Fort Wayne a
sufficient length of time and had not pulled any loads out of Springfield since Feb-
ruary 1961. Business Agent Messmore argued on behalf of Local 414 that Richard-
son and DeHart were in Fort Wayne on a temporary basis and that as extra drivers
handling overflow work on a temporary basis they were not entitled to accumulate
seniority at Fort Wayne under the reciprocity agreements between locals. Cassidy,
on behalf of Fugate and Girton, took a neutral position regarding the matter.
One of the questions considered by the Joint Conference Committee was whether
Richardson and DeHart had been asked to join Fort Wayne Local 414 and had re-
fused . Messmore argued for Local 414 that the two men had refused to transfer to
Local 414. The General Counsel relies on Messmore 's argument in this regard as
further supporting his case against Local 414.
The Joint Conference Committee decided as follows:
By unanimous vote the Committee held that, if after further investigation by
a Subcommittee, it is found that the two drivers had an opportunity to transfer
to Ft. Wayne as regular employees and refused same because they wanted to
remain on the Springfield, Ohio Terminal Seniority Board, then, in such case,
they should continue holding terminal seniority only at the Springfield, Ohio Ter-
minal. However, if they were offered no opportunity, then in such case they
will hold terminal seniority on the Ft. Wayne Seniority Board back to the date
which they commenced work in Ft. Wayne.
4. The subcommittee hearing in Fort Wayne on November 8
Pursuant to the decision of the Joint Conference Committee, a two-man sub-
committee , consisting of Steve Kearns, business representative of South Bend Team-
sters Local 364, and Ward Barnum , the Fort Wayne terminal manager for Howard
Sober, Inc., met on November 8, 1961. Barnum is the same individual who was one
of the employer representatives on the Fort Wayne Local Joint Committee which
passed on Taylor's grievance in the first instance. Richardson and DeHart were pres-
ent at the hearing before the subcommittee. This was the first time in the course of
the various proceedings that they were given an opportunity to be heard.
It is difficult to determine whether the subcommittee actually addressed itself to
the question before it for decision, i.e., whether Richardson and DeHart had been
given an opportunity by Fugate and Girton to transfer to Fort Wayne and refused
because they wanted to retain their seniority at the Springfield terminal. According
to the testimony of the employer representative this question was explored . But the
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony of the Teamsters representatives indicated that their concern at this hearing
was with the question whether Richardson and DeHart had been asked to join the
Fort Wayne Local and had refused to do so. Representatives of Local 414 con-
tended that they had. Richardson denied this, asserting that he was a Springfield
driver. Many of the facts brought out at the previous hearings, including the fact
that the two men had originally been sent over to Fort Wayne on a temporary basis,
and that they had remained on the Springfield seniority list throughout and had
never been placed on the Fort Wayne list, were again brought out. The employer
and union representatives each sent separate reports to the Joint Conference Com-
mittee recommending that Richardson and DeHart be placed at the bottom of the
Fort Wayne seniority list.
The Automobile Transporters Joint Conference Committee, to which the reports
of the subcommittee were submitted, decided that Richardson and DeHart had had
an opportunity to transfer to Fort Wayne as regular drivers and refused because they
desired to retain their seniority standings at Springfield. In accordance with this
decision, Matheson, the secretary of the Joint Conference Committee at Detroit, on
December 8, 1961, notified President Cassidy of Fugate and Girton that Richardson
and DeHart should "continue to hold terminal seniority on the Springfield, Ohio,
Terminal Seniority Board as of their original date of hire
On December 27, 1961, Richardson and DeHart were reinstated by Fugate and
Girton. Their tractors had in the meantime been modified so as to be able to haul
the trailers which were then being used. By this time they had been out of work for
3 months.
D. Conclusion concerning Local 414's alleged violation of Section 8(b) (2)
Section 8(b)(2) of the Act makes it an unfair labor practice for a labor organiza-
tion "to cause or attempt to cause an employer to discriminate against an employee in
violation of subsection 8(a)(3) . . . Section 8(a)(3) makes it unlawful for an
employer "by discrimination in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any labor
organization."
The essential facts in the case may be summarized as follows. President Cassidy
of Fugate and Girton assigned Richardson and DeHart, the No. I and No. 5 drivers
at the Springfield terminal, to the Fort Wayne terminal in January 1961, on a tem-
porary or extra basis. When Cassidy hired Ben Taylor in February 1961,1 he assured
Taylor that he had the No. 3 seniority position at Fort Wayne Under the contract
between Local 414 and Fugate and Girton and the practice thereunder, Richardson
and DeHart, as temporary or extra help at Fort Wayne, did not accumulate seniority
at Fort Wayne but continued to hold their original seniority standings at Springfield.
When Local 414 requested the drivers hired for work at the Fort Wayne terminal to
transfer from the Springfield Local to it in April or May 1961, Richardson and
DeHart were excluded from this request because they were extra or temporary help
at Fort Wayne and subject to being recalled to Springfield when the rush of work
was over.
Although Richardson and DeHart at no time transferred to Fort Wayne Local
414, they continued to pull loads on an equal basis with the Fort Wayne domiciled
drivers until September 26, 1961. Only once did Local 414 make attempts to ex-
clude Richardson and DeHart from the regular driving work at Fort Wayne This
was on July 31, 1961, prior to the commencement of the 6-month Section 10(b)
period herein, when Local 414 sought, as it was entitled to do under the contract
where temporary or extra drivers were involved and there was not enough work to
go around, to have Richardson and DeHart returned to their home terminal at
Springfield. On this occasion Local 414 yielded when Fugate and Girton took the
position that Richardson and DeHart were entitled to the No. 3 and No. 4 positions
at Fort Wayne. This was the first time that Fugate and Girton took any action even
purporting to change the status of Richardson and DeHart. Up until this time their
status was that of the No. 1 and No. 5 drivers at Springfield temporarily assigned to
Fort Wayne.
When on July 31 President Cassidy announced that Richardson and DeHart were
to be the No. 3 and No. 4 men at Fort Wayne, he did so with the understanding, made
after consultation with the secretary of the Automobile Transporters Joint Confer-
ence Committee at Detroit, that if a grievance were filed it would be disposed of
under the contractual grievance procedure. Cassidy was the moving party in making
this arrangement. Local 414 acquiesced in his making it, and also in the understand-
ing that any grievances arising therefrom would be settled by the Joint Conference
Committee at Detroit.
CHAUFFEURS, TEAMSTERS AND HELPERS , LOCAL 414 281
The grievance proceeding was initiated, not by Local 414, but by Ben Taylor who,
in my opinion , had a legitimate complaint that his contractual seniority rights were
being violated. Both Local 414 and Fugate and Girton were contractually obligated
to process Taylor's grievance.
It is the processing of Taylor's grievance by Local 414 which the General Counsel
contends amounted to a violation of Section 8(b)(2) of the Act. The General
Counsel's theory is that Local 414 utilized the contractual grievance procedure in an
effort to cause Fugate and Girton to deprive Richardson and DeHart to work at the
Fort Wayne terminal because they had refused to transfer their membership from
Springfield Local 654 to Fort Wayne Local 414.
As the summary of facts above set forth discloses, the facts of the case do not bear
out the General Counsel's theory. Local 414 in processing Taylor's grievance to a
conclusion was merely attempting to require Fugate and Girton to live up to its
obligations under the collective-bargaining contract. Ben Taylor was the No. 3
man on the seniority list posted at Fort Wayne. Fugate and Girton, by ousting
Ben Taylor from his No. 3 seniority position at Fort Wayne and placing Richardson
and DeHart, neither of whom had any seniority standing at Fort Wayne, in the
No. 3 and No. 4 positions at Fort Wayne violated the seniority rights of Taylor and
the other drivers below him on the Fort Wayne seniority list.
Local 414 in processing Taylor's grievance was not motivated, as the General
Counsel contends, by antagonism towards Richardson and DeHart for failing to
transfer to it. In recognition of their temporary status in Fort Wayne, Local 414
had expressly informed Richardson and DeHart that they need not transfer because
of their temporary status at Fort Wayne. Throughout this controversy Local 414
has been motivated by a desire to protect the contractual seniority rights of the Fort
Wayne drivers which it believed were being violated by Fugate and Girton's insistence
that Richardson and DeHart were the No. 3 and No. 4 men at Fort Wayne. This
action prejudicially affected the seniority rights of the last five drivers who were hired
by Fugate and Girton for the specific purpose of working at the Fort Wayne terminal.
In other words, the controversy here was essentially one between Local 414 and
Fugate and Girton over seniority rights, and the nonmembership of Richardson
and DeHart was not a significant factor therein.
In my opinion , the General Counsel has not only failed to show that Local 414
was motivated by prohibited considerations in processing Taylor's grievance, but
also he has failed to establish that Local 414 was the moving party in the events
here involved. Hence, it cannot reasonably be concluded that Local 414 "caused"
or "attempted to cause" Fugate and Girton to take action in violation of Section
8(a)(3) of the Act. As the facts above summarized demonstrate, it was Fugate
and Girton which took the action which precipitated the filing of Taylor's grievance
by assigning Richardson and DeHart to the No. 3 and No. 4 positions at Fort Wayne.
It was Fugate and Girton who made arrangements through the secretary of the Joint
Conference Committee at Detroit to have any grievance arising as a result of its
action handled under the grievance procedure set forth in the contract. Local 414
merely acquiesced in the procedure which Fugate and Girton decided upon to
resolve any problems arising as a result of its assigning Richardson and DeHart
to the No. 3 and No. 4 positions at Fort Wayne. And Local 414 also acquiesced in
Richardson's and DeHart's assuming the No. 3 and No. 4 positions at Fort Wayne
while Taylor's grievance was being processed. Thus, it was not Local 414 which
was causing or attempting to cause Fugate and Girton to take discriminatory action
against Richardson and DeHart; rather it was the other way around. Fugate and
Girton was calling the shots and Local 414 was merely following its lead.
For the foregoing reasons I conclude that the Section 8(b)(2) allegations of the
complaint must be dismissed.
In reaching this conclusion I am not unmindful of the fact that among the argu-
ments made by representatives of Local 414 at the three grievance hearings involved
in this case was the argument that Richardson and DeHart had refused to transfer
to Local 414. However, I do not believe that this fact, either when considered
alone or in light of the background evidence indicating that Local 414 in practice
insisted that all union members permanently assigned to Fort Wayne should trans-
fer their membership to Local 414, compels the conclusion that Local 414 utilized
the grievance procedure under the contract in a manner which was violative of
Section 8(b)(2) of the Act. The grievance proceedings in my opinion should be
viewed as a whole, and the occasional arguments of overzealous union representa-
tives in the course of these extended proceedings should not be regarded as deter-
minative of the character of the proceedings as a whole. As found above, the
grievance proceedings essentially were to determine a seniority controversy between
Taylor and Fugate and Girton arising out of the latter 's placing Taylor and the
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other Fort Wayne drivers below Richardson and DeHart on the Fort Wayne terminal
seniority list. Local 414, by continuing with the processing of such a seniority
grievance, in my opinion, has not violated Section 8(b)(2) of the Act.
In so finding, I do not wish to imply that Richardson and DeHart have not been
wronged by being deprived of work for 3 months while the grievance was pending
before the Joint Conference Committee at Detroit. The record in this case in-
dicates that Fugate and Girton, to serve its own economic interests, treated them as
pawns, moving them about as it willed without regard to their seniority rights under
the collective-bargaining contract. Under the contract, Richardson, as the No. 1
man on the Springfield seniority list, was entitled to continue to work at Springfield
since there was work available there for truckaway drivers. DeHart was also en-
titled to work at Springfield, for part of the time, at least, depending upon the volume
of work available in this 3-month period. Yet Fugate and Girton refused to put
them to work until the Joint Conference Committee at Detroit specifically upheld
their seniority standings at Springfield.
However, the remedy for this wrong which was done to Richardson and DeHart
does not lie before the Labor Board. In my opinion, Richardson and DeHart have
not only proceeded before the wrong tribunal, but also they have pursued the wrong
party. However, whether Richardson and DeHart still have a remedy against
Fugate and Girton under the grievance procedure of the contract or a contractual
claim against it for violation of their seniority rights are questions outside the scope
of this proceeding.
E. Conclusions concerning Local 414's alleged violation of Section 8(b) (1) (A)
The General Counsel contends that Local 414 violated Section 8(b) (1) (A) of
the Act by failing to represent Richardson and DeHart fairly in its processing of
Taylor's grievance. Essentially what the General Counsel relies upon is the fact
that at both the September 26 Local Joint Committee hearing at Fort Wayne and
the October 18 Joint Conference Committee hearing at Detroit, Local 414 presented
the case strictly from the standpoint of the Fort Wayne based drivers, whose interests
insofar as regular work at Fort Wayne for Richardson and DeHart was concerned
were adverse to those of Richardson and DeHart, and did not afford Richardson
and DeHart an opportunity to present their side of the matter.
It should be noted parenthetically, however, that neither the Local Joint Committee
nor the Joint Conference Committee considered taking action in derogation of
Richardson's and DeHart's seniority rights at Springfield, but merely to consider the
rights of Richardson and DeHart at Fort Wayne. Neither Richardson nor DeHart
were seeking permanent status in the No. 3 and No. 4 positions at Fort Wayne.
DeHart so testified at the hearing in this case. And the record shows that Richardson
at the November 8 subcommittee hearing specifically took the position that he was
a Springfield driver. In view of this fact it is difficult to see how Richardson and
DeHart were prejudicially affected by the action of these Committees.
In any event, Local 414 should not be held to have violated Section 8 (b) (1) (A)
by reason of its handling of the Taylor grievance because it was processed in accord-
ance with the procedure specified in the series of identical contracts which make up
the Automobile Carriers Truckaway Agreement. The Board has held that one
of the objectives of Section 8(a)(5) of the Act is to encourage the parties to
collective-bargaining agreements to establish machinery for the amicable resolution
of their disputes. Spielberg Manufacturing Company, 112 NLRB 1080, 1082;
Denver-Chicago Trucking Company, Inc., 132 NLRB 1416, 1421.
In this case the parties have established, by means of uniform agreements between
employers engaged in truckaway operations, and locals of the Teamsters representing
their employees, a comprehensive grievance procedure for resolving disputes between
the parties. It culminates in binding arbitration. Fugate and Girton has one contract
with Local 414 setting forth procedure for resolving the grievances of its Fort Wayne
based drivers. It has another contract with Springfield Local 654 covering its
Springfield based drivers. The procedure set forth in these contracts appears to be
fair and, in my opinion, adequately safeguards the rights of all concerned.
Under the procedure of the truckaway agreements, it is contemplated that a
driver having a seniority grievance will process it through the local which represents
the drivers at his base terminal. In this case Richardson's and DeHart's seniority
rights arise out of the contract between Fugate and Girton and Local 654, which
represents the drivers at the Springfield terminal. Under the contract Local 654
had the responsibility for protecting Richardson's and DeHart's seniority rights, as
these rights exist strictly on a terminal basis and no driver can accumulate seniority
simultaneously at two terminals. Seniority rights can be altered or affected only
as permitted by the contract. No action was taken by anyone in this case in the
AMERICAN GREETINGS CORPORATION 283
manner permitted by the contract to change Richardson 's and DeHart's seniority
rights at Springfield . To accept the General Counsel 's contention that Local 414
acquired the responsibility to uphold Richardson 's and DeHart 's interest in the Taylor
grievance proceeding is in effect to hold that two locals each simultaneously represent
Richardson and DeHart and are obligated to look out for their interests . Not only
does the scheme of representation embodied in the Act rule out such dual repre-
sentation, but it is wholly unreasonable to expect a local which represents drivers
having adverse interests to Richardson and DeHart to do an adequate job of protect-
ing their rights.
Under all the circumstances , I conclude that under the procedure set forth in
the truckaway agreements , Local 414 had no obligation to protect Richardson's and
DeHart's interests in processing Taylor 's grievance . This was the responsibility
of Local 654, the Springfield Local, and its responsibility alone . It should be borne
in mind that what gave rise to the filing of the charges in this case was Fugate and
Girton 's refusal , after September 26 when the Fort Wayne Local Joint Committee
ruled that they had no right to regular work at Fort Wayne , to put Richardson and
DeHart back to work at Springfield . Especially in these circumstances it is logical
to hold that this seniority controversy should be settled under the auspices of Local
654, the Springfield local.
For the reasons stated above , I conclude that the grievance procedure set forth
in the truckaway agreements affords a fair and adequate means of disposing of dis-
putes between the employers and the various Teamsters locals,4 that under this
procedure Local 414 was not obligated to represent the interests of Richardson
and DeHart in the Taylor grievance proceedings . Accordingly , Local 414 should
not be held to have violated Section 8 (b) (1) (A ) because of its failure to look out
for their interests in the processing of Taylor 's grievance.
CONCLUSION OF LAW
Chauffeurs , Teamsters and Helpers Local Union No. 414 International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, has not
violated Section 8 (b)(1) (A) and ( 2) of the Act, as alleged in the complaint.
RECOMMENDED ORDER
It is ordered that the complaint herein be , and it is hereby, dismissed.
41 recognize that Business Agent Feltits, representing Local 654 at the October 18
hearing at Detroit, took positions which were contrary to the interests of Richardson and
DeHart and contrary to Local 654 's duty as their bargaining representative . However,
the fact that Feltis failed to fulfill his obligations In this regard does not alter the fact
that the procedure , itself , was fair.
American Greetings Corporation and International Brotherhood
of Pulp, Sulphite and Paperniill Workers, AFL-CIO. Case
No. 26-CA-1361. April 24, 1963
DECISION AND ORDER
On February 6, 1963, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. He also
found that the Respondent had not engaged in certain other alleged
unfair labor practices and recommended dismissal of the complaint
as to them. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
142 NLRB No. 33.