Hayes Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1963

142 N.L.R.B. 984 (N.L.R.B. 1963)

984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection or to re-
frain from any and all such activities.
All our employees are free to become or remain or to refrain from becoming or
remaining members of the above-named or any other labor organization or union.
ARTISTIC EMBROIDERY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must Iemain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 112 East
Cass Street, Tampa, Florida, 33602, Telephone No. 223-4623, if they have any
question concerning this notice or compliance with its provisions.
Hayes Freight Lines, Inc. and James W. Flannigan . Case No.
7-CA-3819. June 7, 1963
DECISION AND ORDER
On March 27, 1963, Trial Examiner Thomas N. Kessel issued his
Intermediate Report 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 Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief.
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 [Chairman McCulloch and Members Rodgers and
Leedom].
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 Inter-
mediate Report, and the entire record in this case, including the excep-
tions and the brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint herein be, and it
hereby is, dismissed.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed July 18, 1962, and an amended charge filed September 4,
1962, by James W. Flannigan, an individual, against Hayes Freight Lines, Inc.,
142 NLRB No. 110.
HAYES FREIGHT LINES, INC. 985
herein called the Respondent, the General Counsel of the National Labor Relations
Board, herein called the Board, by the Acting Regional Director for the Seventh
Region, issued his complaint dated October 12, 1962, alleging that Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and ( 1) and Section 2 ( 6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act. The Respondent's answer
denies the allegations of unlawful conduct in the complaint. Upon notice of hearing
duly served upon the parties a hearing was held at Detroit , Michigan , on January 28
and 29, 1963, before Trial Examiner Thomas N. Kessel. All parties were repre-
sented by counsel . Full opportunity to be heard , to examine and cross-examine
witnesses, and to introduce evidence was afforded all parties. At the close of the
hearing the parties signified their intention not to file briefs.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE LABOR ORGANIZATION INVOLVED
Local 299, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, Ind., herein called the Union, is a labor organization ad-
mitting to membership the employees of the Respondent.
II. PERTINENT COMMERCE FACTS
The complaint alleges and the answer admits that: the Respondent is an Illinois
corporation with its principal office and place of business in Winston-Salem, North
Carolina; the Respondent maintains and operates other places of business and ter-
minals in various States to haul steel and other products by motor carrier subject to
the rules and regulations of the Interstate Commerce Commission; during the year
ending December 31 , 1961 , the Respondent in the course of its business operations
performed services valued in excess of $1,000,000 of which revenues exceeding
$500,000 were derived from the transportation of commodities between States. The
Respondent concedes and I find from the foregoing facts that it is engaged in inter-
state commerce and that it will effectuate the policies of the Act to assert jurisdiction
over its business in this proceeding.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel contends that in reprisal for Charging Party Flannigan's
activities as steward for the Union the Respondent unlawfully discharged him in
violation of the Act. This assertedly was deviously accomplished by the Respond-
ent's closing on April 13, 1962, of its freight terminal in Detroit where Flannigan
had been employed, the simultaneous layoff of all employees at this terminal includ-
ing Flannigan, the termination of the employment relationship with these employees
on April 23, 1962, and a subsequent refusal to employ Flannigan at any of its ter-
minals throughout its system. The Respondent concedes the closing of the Detroit
terminal but maintains it was necessitated by lawful economic reasons having noth-
ing to do with Flannigan's activities as steward and denies any refusal to employ
him subsequent to the closing of the terminal. The Respondent attributes Flannigan's
failure to receive employment thereafter to the fact that he did not apply for work.
The Respondent's freight-hauling business is conducted from terminals in various
States. Each terminal appears to be run by a terminal manager who, according to
the Respondent, is in some cases its employee and in others an independent con-
tractor. Whatever dispute there is in the case concerning the status of these managers
need not be resolved as it is immaterial to the findings and conclusions herein. The
trucks which do the hauling are leased by the Respondent from their owners and
these persons, where they drive their equipment, become the Respondent's employees
by the provisions of the leases. Flannigan was such a truck owner and driver
operating out of the Respondent's Detroit terminal. From 1957 or 1958 he served
as the steward for the Union which represented the Respondent's owner-drivers at
this terminal.
Flannigan related that in the course of his stewardship he had filed four or five
grievances during 1961 and 1962 on behalf of the Detroit drivers. Included in these
grievances were complaints involving monetary claims by the drivers against the
Respondents One complaint related to a $4 service charge deducted by the Re-
spondent from the drivers' pay over a period of approximately 4 years which Flanni-
gan estimated in his own case came to about $1,500. Another pertained to the
Respondent's deductions from their earnings for "unfair damage claims" and "pro
rate plates." The record does not reveal the precise nature of these complaints, but
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the context of this case such omission is inconsequential. One complaint was
over the Respondent's unilateral reduction in 1961 of the payment to the drivers
from 75 percent to 73 percent of gross revenue.' There was also a complaint about
taking out "unnecessary bonds on drivers." The full meaning and implication of
this matter also is not revealed by the record but this also is not consequential in
the case.
Flannigan conceded his poor memory for dates of specific events. The record is
somewhat uncertain as to the exact dates when he first filed formal grievances in
1961 or when the actions occurred which precipitated their filing. For purposes of
the case, however, it is sufficient to state, in accordance with my findings derived
from Flannigan's testimony, that in the summer of 1961 the Respondent sought new
leases from its drivers in which their revenues were reduced from 75 to 73 percent
of gross. While the Detroit drivers expressed their dissatisfaction with this arrange-
ment to Flannigan and it was agreed by them in a meeting not to sign these leases,
all except Flannigan and one other driver, Jewel Brewer, capitulated and signed
leases. Flannigan and Brewer also signed when they realized they alone could not
successfully oppose the Respondent's action. Flannigan thereupon filed a grievance
in August 1961 complaining that the Respondent should not have presented the new
leases to the drivers without prior discussion of its terms with them. The above-
listed complaints were also included in this grievance. Subsequently, meetings were
held to discuss the grievance in September and November 1961. Paul H. B. Reich,
the Respondent's general manager of special commodities, headquartered in Chicago,
appeared for the Respondent. Apparently no satisfactory conclusion was reached
by the parties at these meetings. Another session, with Reich again in attendance,
took place in Detroit on February 10, 1962. Reich requested and was granted 10
days to discuss the matters at issue with the head of the Respondent to see what
could be accomplished.
Because the grievance originally filed by Flannigan was claimed by the Respond-
ent's and the Union's representatives at the February 10 meeting to have been lost
Flannigan filed another grievance on February 16. Thereafter another meeting was
held in Detroit on March 19 with Reich once more present. Again he asked for
and received 10 days to work out a solution. At the end of this period, nothing
having been accomplished, Flannigan demanded that the Union's business agent seek
another meeting with a representative of the Respondent present who had greater
authority than Reich to settle grievances.
On April 11 or 13 a meeting was held in Detroit attended by Reich and Rex
Sprenkle for the Respondent. Sprenkle works under the Respondent's vice president
in charge of operations at its principal office in Winston-Salem, North Carolina.
Flannigan testified that Sprenkle declared at this meeting that the Respondent would
have to close the Detroit terminal because it was not making enough money. He
directed the Respondent's attorney, Victor Schaeffner, to handle the drivers' grievances
and to arrange for payment to them of any money to which they might be entitled.
The Union's business agent, Rolland McMasters, asked whether the drivers could
be placed at the Respondent's other terminals in its system. Sprenkle informed him
that there was no present need for them. McMasters reminded him of Flannigan's
special seniority as steward which required that he be rehired before anyone else.
Sprenkle responded that the drivers would be placed if needed.
By letters dated April 13, 1962, Flannigan and the other Detroit drivers were
notified by the Respondent that they were laid off because of "economic factors"
and that their leases were canceled "today, effective April 23." This latter notice
was described by Flannigan as a 10-day grace period allowed by the Respondent to
the drivers to enable them to secure other employment. He testified that during this
period he and driver Brewer applied at the Respondent's Louisville, Kentucky, termi-
nal for work and were informed by Manager Lucien Rankin he had orders from
Chicago not to load them. Ostensibly the reference was to the Respondent's Chicago
offices. Flannigan further testified that about May 1 he called the Respondent's
New Brighton, Pennsylvania, terminal manager, George Shalcross, and asked for a
freight haul but was told Chicago had ordered that the Detroit terminal men not be
loaded. He claimed that in mid-May he requested work and received the same
reply from Warren L. Richardson, the Respondent's Cleveland terminal manager.
To show the Respondent's concern about the grievances filed and pressed by
Flannigan and the animus incurred by him for these activities, as a circumstance re-
flecting discriminatory intent, Flannigan testified that at the March 19, 1962, meeting
Reich offered him a plum, a lucrative ammunition haul, provided he drop the
I Flannigan's testimony that the reduction was to 72 percent is erroneous
HAYES FREIGHT LINES, INC. 987
grievances . Flannigan spurned the offer, particularly as Reich had also stated the
other drivers would have to look out for themselves . Flannigan maintained it was
well known there was no love lost between him and Reich presumably because of
Flannigan's activities as steward . The seriousness with which the Respondent re-
garded the grievances is revealed by Flannigan 's testimony that Reich had told him
at one of the meetings in November or February that the Respondent would close
the Detroit terminal before "they could pay those grievances" and that "if the griev-
ances wasn 't settled there before he could pay us men any money the terminal would
have to be shut down; he was going to shut it down ." Flannigan acknowledged that
Reich had explained that "with the financial condition of the terminal being what it is
and with these grievances , they didn 't know how long they could keep it open."
Along the same line Emerson Koebbe, the Detroit terminal manager at the time of
the events in question , testified that Reich had told him on April 13 as he drove him
to the grievance meeting that if there were a continuation of his trips to Detroit for
such meetings the Respondent would not be able to keep the terminal open. Later
that day Reich informed him of the Respondent 's decision to close the terminal be-
cause of the limited revenues and operating costs "under those conditions."
According to Reich , the Detroit terminal was closed because it was not sufficiently
profitable for the Respondent to keep it open . He conceded that the time and expense
of his several trips to Detroit to discuss the grievances were a factor considered
with the terminal 's small and declining revenues in the Respondent 's decision to
close it. He testified the Respondent's profit from the terminal ranged from $300 to
$600. I assume this was annual profit although the record does not specify. After
the terminal closed the customers serviced from this point were handled from the
Respondent 's Toledo terminal with elimination of some expense . Reich categorically
denied there were any other reasons for closing the terminal . He did not, he said,
instruct the managers of the Respondent 's other terminals to refuse employment to
Flannigan . The latter has not received employment , Reich maintained , simply
because he did not apply for it. He would receive employment now if only he were
to request it. Employment was not denied the other Detroit drivers. Each was
told he would be welcomed back when needed and all five drivers who applied for
employment have been hired and redomiciled at or near the Respondent 's other
terminals.
Shalcross , the Beaver Falls terminal manager , denied he was instructed by the
Respondent not to load the Detroit drivers or that he had ever told Flannigan he had
been ordered not to load him. Contrary to Flannigan's claim that he had not been
loaded during the period between April 13 and 23, Shalcross testified that he had
given him a load on April 17 to deliver from Beaver Falls to Middletown , Kentucky.
Documentary evidence introduced at the hearing conclusively showed this to be the
fact. Richardson, the Cleveland terminal manager, and Rankin, the Louisville termi-
nal manager , also denied telling Flannigan they had been ordered by the Respondent
not to load him or other Detroit drivers. Both testified they had never received
such instructions from the Respondent . Richardson further testified that Flannigan
had not after the close of the Detroit terminal requested any loads from him. Rankin
revealed that three of the Detroit drivers now work at his terminal.
I am not persuaded that the Respondent closed the Detroit terminal in order to
get rid of Flannigan and subsequently refused to employ him because of his ac-
tivities as steward for the Union. It is clear that the grievances filed by him were
troublesome to the Respondent and created monetary problems for it which in-
fluenced its decision to close the terminal. I am, however , satisfied that this was
done not in reprisal for Flannigan 's activities and to eliminate him as a source of
future annoyance, but because , as Reich testified , the Respondent 's officials felt that
maintenance of the terminal under the prevailing circumstances was not economi-
cally justified. Without reflecting on Flannigan's integrity as a witness I reject his
testimony that he was told by Terminal Managers Shalcross, Richardson, and
Rankin that Chicago had ordered them not to give work to the Detroit drivers
and in particular not to employ him. I credit their contrary testimony. Flannigan
may sincerely believe he was told these things because of his tendency which I
noted in his testimony to assume as fact what he believes must be true. He was
obviously mistaken about his claim not to have received work from the Respondent
in the period from April 13 to 23 for, as the record clearly shows, he hauled a load
from Beaver Falls on April 17 which he obtained from Shalcross. His failure
to receive the employment from the Respondent which five of the Detroit drivers
have obtained since the closing of the terminal is attributable to his acknowledged
refusal to request work from the Respondent. It is not, as I have analyzed the
record, attributable to the Respondent's unlawful refusal to employ him
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Hayes Freight Lines , Inc., Winston-Salem, North Carolina, is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Local 299, International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men, Helpers of America, Ind., is a labor organization within the meaning of
Section 2(5) of the Act.
3. The allegations of the complaint that the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) and
(1) of the Act have not been sustained.
RECOMMENDATION
It is recommended that the complaint be dismissed in its entirety.
American Hard Rubber Company , a Division of Amerace Cor-
poration and Independent Hard Rubber Pipefitters and Inde-
pendent Hard Rubber Tool & Die Workers and Machinists
and Independent Hard Rubber Millwrights and Independent
Hard Rubber Carpenters and Independent Hard Rubber Elec-
tricians, Petitioners . Cases Nos. 8-RC-4540, 8-RC-4541, 8-RC-
4542, 8-RC-4543, and 8-RC-1544. June 7, 1963
DECISION AND ORDER
Upon petitions duly filed under Section 9(c) of the National Labor
Relations Act, a consolidated hearing was held before Bernard Levine,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees of
the Employer.'
3. For the following reasons we find that no questions exist concern-
ing the representation of employees of the Employer.
The Intervenor has represented the production and maintenance
employees of the Employer since 1936 2 The Petitioners seek to sever
from that unit five units of alleged craftsmen who work in the Em-
ployer's maintenance department. We deny the requests because, in
1 Local No . 15, United Rubber , Cork, Linoleum and Plastic Workers of America, AFL-
CIO, herein called the Intervenor , was permitted to intervene at the hearing.
The record indicates that the separate Petitioners herein were established after the
Board's unpublished decision in an earlier proceeding involving this Employer (Case No.
8-RC-3538, December 21, 1959 ). They exist for the purpose of dealing with the Em-
ployer concerning the wages , hours, and terms and conditions of employment of the types
of employees stated in their names . We find that they are labor organizations within the
meaning of the Act.
2 Prior to 1950 this unit included powerhouse employees who, since then, have been rep-
resented by Local 821 , Operating Engineers . In 1957 the Employer became, as it now is,
a division of Amerace Corporation , but this did not change the representation of the
employees.
142 NLRB No. 116.