Roadway Express, Inc.

National Labor Relations Board - Board Decisions

Dec 18, 1963

145 N.L.R.B. 513 (N.L.R.B. 1963)

ROADWAY EXPRESS, INC. 513
claim for recognition sufficient to support the Employer's petition
for an election, we shall dismiss the Employer's petition.3
[The Board dismissed the petition.]
MEMBER LEEDOM, concurring :
I concur in the dismissal of the petition. In view of the complete
cessation on May 29, 1963, of what I would find to be recognitional
picketing, I agree that the Unions' subsequent disclaimers were un-
equivocal.4 I would, however, consistent with the well-established
Board practice as illustrated in the Franklin Square case, note that
the Board will entertain a motion requesting reinstatement of this
petition in the event the Unions, within 6 months from the date of
this Order, engage in conduct inconsistent with their disclaimers.
3In view of our disposition of the case, we do not pass upon the question of whether
the picketing which ceased on May 29, 1963, or the demand for the signature of a Building
Trades contract on May 27, 1963, were inconsistent with the original disclaimer of
April 18, 1963
4 Richard T. Baylis et al d/b/a Franklin Square Lumber Co., 114 NLRB 519.
Roadway Express, Inc. and William J. Burns. Case No. 13-CA-
4711. December 18, 1963
DECISION AND ORDER
On June 3, 1963, Trial Examiner John C. Fischer issued his Inter-
mediate Report recommending that the complaint herein be dismissed,
as set forth in the attached Intermediate Report.' Thereafter, the
Charging Party filed exceptions to the Intermediate Report and a
supporting brief. On August 7, 1963, the Board remanded the case
for findings and conclusions with respect to the merits of the unfair
labor practices alleged in the complaint.' Pursuant to the remand,
the Trial Examiner issued his Supplemental Intermediate Report on
September 4, 1963, finding that Respondent had not engaged in the
i The Trial Examiner specifically recommended that the Board give conclusive effect to
an arbitration award rendered by the Central States Joint Area Committee. The com-
mittee consisted of an equal number of union and employer representatives with no im-
partial participant. Acting under the terms of the Teamsters' Central States Area,
Over-The-Road Motor Freight Agreement , the committee unanimously decided to uphold
Respondent Roadway's discharge of Burns, the Charging Party herein . Burns , in protest-
ing his discharge under contractual grievance provisions , duly advised a Regional Director
of the Board that this step had been taken to prevent forfeiture of his claim even though
he did not believe he would receive a fair bearing.
2In recommending that the arbitration award be honored and that the complaint be
dismissed , the Trial Examiner did not pass upon the merits of the 8 ( a) (3) charge alleged
in the complaint The Board in remanding the case for findings and conclusions on the
merits, deferred consideration of the arbitration issue until presented with a complete
record
145 NLRB No. 51.
734-070-64-vol. 145-34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged unfair labor practices and recommending that the complaint
be dismissed in its entirety, as set forth in the attached Supplemental
Intermediate Report. Thereafter, the General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, 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 en-
tire record in this case, including the Intermediate Report, the ex-
ceptions, and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the addition indicated
below.
We agree with the Trial Examiner that the General Counsel did
not establish by a preponderance of the evidence that the Respondent
discharged Burns in violation of Section 8 (a) (3) and (1) of the Act.
The evidence shows that Burns was discharged because he failed to
remain with his trailer despite specific instructions that he remain
on duty. Essentially the Trial Examiner's findings were based upon
resolutions of credibility over conflicting testimony, and we find no
basis for disturbing such findings.'
In resting our decision on the merits of the fully litigated 8(a) (3)
issue rather than the Joint Area Committee's judgment as to whether
Burns, contrary to company rules and specific instructions, was away
from his equipment during its repair, we are not departing from the
principles set forth in Spielberg Manufacturing Company,4 nor from
our decision in Denver-Chicago Trucking Company, Inc.'
In Denver-Chicago, we considered an award rendered by a bipartite
committee, and ruled that the absence of an impartial public member
on the arbitration panel did not necessarily invalidate such an award
under the Spielberg standards of fairness and regularity. However,
the record in that case did not suggest a division-in-interest between
the entire committee and the aggrieved employees.
In the ordinary arbitration proceeding the parties, being unable to
adjust a dispute under grievance procedures, submit it to an impartial
third party for decision under the terms of their contract. In such
circumstances, the interests of the parties are in conflict and we have
3 As it is the Board ' s established policy not to overrule a Trial Examiner ' s resolutions
with respect to credibility unless, as is not the case here , the clear preponderance of all
the relevant evidence convinces us that the resolutions were incorrect , we find insufficient
basis for disturbing the Trial Examiner ' s credibility findings Standard Dry Wall Prod-
accts, Inc, 91 NLRB 544, enfd 188 F 2d 362 ( C.A. 3).
112 NLRB 1080
6 132 NLRB 1416.
ROADWAY EXPRESS, INC. 515
given binding effect to the arbitrator's determination. Where con-
tract grievance procedures simply provide for the submission of a
dispute to a bipartite committee, composed of representatives of the
contracting parties, the absence of a public, or impartial, member will
not necessarily foreclose the exercise of our discretion to give binding
effect to decisions of the committee, for each representative is cus-
tomarily prepared to argue for or against the merits of the employee's
grievance. However, where in addition to the absence of an impartial
or public member it appears from the evidence that all members of
the bipartite panel may be arrayed in common interest against the
individual grievant, strong doubt exists as to whether the procedures
comport with the standards of impartiality that we expect to find in
arbitration. In the instant case, Burns' vigorous opposition to the
Teamsters Union, underscored by his formation and becoming first
president of the Rebel Teamsters Union for the purpose of providing
employees in the trucking industry an alternative to his own Local
710 and its sister locals affiliated with the International Brotherhood
of Teamsters, together with his repeated and widely publicized at-
tacks upon the trucking industry in general, strongly support the con-
clusion that the arbitration tribunal was constituted with members
whose common interests were adverse to the grievant, Burns. For
such reasons, we do not in the present circumstances rest our decision
upon the award of the Joint Area Committee, but adopt, instead, the
Trial Examiner's finding on the merits that the Respondent did not
violate Section 8(a) (3) and (1) of the Act in discharging Burns.
[The Board dismissed the complaint.]
MEMBER FANNING, concurring :
I concur in my colleagues' adoption of the Trial Examiner's inde-
pendent findings on the merits that Burns was discharged for cause
rather than for engaging in antiunion activity, and that the Respond-
ent did not violate Section 8 (a) (3) of the Act by separating him from
its employ. In view of these factual findings as to the reason for
Burns' discharge, I see no need to consider whether the arbitration
award of the Joint Area Committee satisfied the standards of ac-
ceptability set forth in the Spielberg decision. Hence, I do not sub-
scribe to my colleagues' observations as to that award, or to their
generalizations concerning the composition of arbitral boards or the
manner in which they should function.
To be sure, the binding effect of an arbitration award should always
depend upon a close examination of the circumstances under which it
was rendered whenever rights under the Act may be at stake. Spiel-
berg has long embodied that caution.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
William J. Burns (hereinafter referred to as Burns or the Charging Party), on
February 23, 1962, filed charges against Roadway Express, Inc. (hereinafter referred
to as the Respondent), alleging violations of Section 8(a)(1) and (3) of the
National Labor Relations Act (hereinafter referred to as the Act). On June 1,
1962, the General Counsel of the National Labor Relations Board (hereinafter
referred to as the Board), issued a complaint against Respondent, alleging it had
violated Section 8(a)(1) and (3) of the Act. The complaint was amended on
July 16, 1962, and again at the hearing.
A hearing was held before Trial Examiner John C. Fischer on the complaint as
amended, on July 24, 25, 26, 27, 30, and 31 and December 18 and 19, 1962. All
parties were represented at and participated in the hearing, and were afforded the
right to present evidence, to examine and cross-examine witnesses, to offer oral
argument, and to file briefs. Briefs have been received from the General Counsel
and Respondent. By certified mail, bearing date of March 6, 1963, the Trial Ex-
aminer received a six-page document (carbon copy) addressed to Mr. Irving Herman,
Director, Office of Appeals, National Labor Relations Board. A notation opposite
the signature "William J. Burns" indicates that a carbon copy was also sent to the
Attorney General of the United States. This document purports to be a request for
review of Cases Nos. 13-CA-5009 and 13-CA-1253-1, 1253-2, 1253-3. Receipt
of this document is acknowledged by the Trial Examiner only as "noted." It is not
a part of the formal file of this case and has not been so considered by the Trial
Examiner. Respondent's answer admits some of the allegations pleaded in the
complaint, but denies the commission of any unfair labor practices by Respondent,
and pleads affirmatively in defense. Upon the entire record in this case, including
the admissions in the answer and the stipulations of the parties, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent Roadway Express , Inc., is now , and has been at all times material
herein , a Delaware corporation engaged in interstate transportation operations with
a principal place of business located at 3400 West 51st Street in Chicago , Illinois.
The Respondent during the course and conduct of its business performed services for
which it annually receives revenues in excess of $50,000,000 . Respondent is and
has been at all times material herein , engaged in commerce , and its operations affect
and have affected commerce , within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The following organizations are found to be labor organizations within the mean-
ing of Section 2(5) of the Act:
Local Union No. 710, International Brotherhood of Teamsters, hereinafter re-
ferred to as Local 710, or Teamsters; and Rebel Teamsters Union, hereinafter
referred to as RTU or the Rebels.
III. THE UNFAIR LABOR PRACTICES
Burns, the Charging Party, became employed as an over-the-road driver by Re-
spondent Roadway Express on January 21, 1960. Burns was discharged by Re-
spondent on February 12, 1962. The complaint, as amended, alleges that the
discharge was effected because said employee joined or assisted the Rebel Teamsters
Union or engaged in other concerted activity for the purpose of collective bargaining
or Other mutual aid or protection. The thrust of General Counsel's case was that
the reason given for Burns' discharge was a mere pretext for the multifarious
grievances filed and his union activities.
The Respondent's defense was that Burns was discharged "because he abandoned
and left unattended, for at least three or four hours at night in Nashville, Tennessee,
his trailer loaded with a valuable cargo [while he and his fellow driver, Kaumanns,
attended `the Grand Old Opry']. He was en route from Atlanta, Georgia to
Chicago and was supposed to be on duty while with his trailer and cargo during the
entire trip. He filed a grievance and the grievance was regularly processed through
the entire Grievance Procedure. Burns was present at all the grievance hearings
and was afforded the complete opportunity to present his story. The Joint Com-
ROADWAY EXPRESS, INC. 517
mittee, composed of equal numbers of Union and Employer representatives, sus-
tained the discharge. The record of testimony in the present case contains a mass
of evidence of Burns' activities and disciplinary action against him on prior occasions,
but such evidence is not material to the issue in this case. Those events were in no
way related to the incident which lead to his discharge." Such is the burden of the
defense.
Burns' Grievances Begin
Burns' grievance difficulties started within a month or so after his employment
with Roadway and equally involved the Company and the Union. During February
and March of 1960, Burns complained to then Operations Manager Higgins that his
seniority had not been recognized nor his place on the "extra board." He contended
that the dispatcher had sent out junior drivers ahead of him and contrary to the
collective-bargaining agreement in effect which provided: "All runs and new posi-
tions are subject to seniority and shall be posted for bids." Higgins promised
Burns that he would check it out, but apparently did nothing about it. Some 3
weeks later Burns again complained to Higgins of being "run around." He advised
Higgins that although some of the drivers failed to complain or file grievances because
they feared they would be assigned to the Milwaukee run thereby reducing their
earnings, this fear would not deter him. He said that in the event his complaints
were not settled by the Company, he would file a grievance with his local union
(Local Union 710). Burns then went on a road trip and upon his return found
that Higgins had been replaced (possibly because of illness), by a new operations
manager, Roy Haggard. Upon his return Burns discussed the "run around" situation
with Terminal Manager Johnson. When he insisted that he would file a grievance if
these claims were not adjusted within a short period Johnson said, according to
Burns, "something about this being the only road driver that ever filed a grievance
of Roadway Express, and turned around and walked away saying something about
these radicals."
Burns testified that he filed his first grievance on or about May 30, 1960. This
grievance grew out of a warning letter which Burns received on May 13. Burns
received a call from the dispatcher at 9:30 in the morning to report for work. He
arrived at the terminal at 11:40 a.m. The dispatcher took him to task for being
10 minutes late. When asked for an explanation by Burns the dispatcher said,
"You're contract states that you are on a 2-hour call time." Burns contended that
the contract did not so provide, but he was told that he was going to be sent a
warning letter. This warning and suspension letter were received on May 16 and
recited "reporting late for duty, which resulted in a serious delay of the freight."
The next warning letter was dated May 21 and alleged "refusing a load." Burns
filed the first of his formal grievances with Local Union 710, letter adressed to Mr.
John Phalen, which letter reads:
MAY 30, 1960.
Mr. JOHN PHALEN,
Local Union #710,
4217 South Halsted St.,
Chicago 9, Illinois.
DEAR SIR: On May 23, 1960 I received a notice of warning and suspension
from Roadway Express Inc., 3400 W. 51st St., Chicago, Illinois. I am protest-
ing this notice under Articles X and XX and I am also asking that I be paid
for a Milwaukee turnaround and any run-around that may have taken place
between the hours of 7 am on 5/21/60 and 2 pm on 5/22/60.
I am aware of other run-arounds that I should be paid for, such as Messers
Roth and Bonzine on March 26th and 27th 1960, because of the fact that the
Chicago Seniority Board had not been exhausted. Run-around by Mr. Washlow
on April 13, 1960. Run-around by Mr. Baronick on April 19, 1960. Run-
around by Mr. Hibbs on May 4, 1960. Run-around by Mr. Taylor on May 5,
1960.
I am protesting the action of the company in permitting and/or requiring
Mr. Poole to run two straight weeks and Mr. McMasters on the Atlanta run
without observing the seniority of other drivers, and I am also claiming run-
around nay on account of this.
Fraternally yours,
WILLIAM J. BURNS.
cc: Mr. John T. O'Brien.
File.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burns' Experience With Established Procedure
From May 16, 1960, when Burns received a warning letter for reporting late for
duty on May 13, 1960, until his discharge on February 12, 1962, Burns was involved
in a multitude of grievances against the Respondent under the grievance-arbitration
procedure provided by the collective-bargaining agreement between Teamsters Local
Union 710 and the Company. Attached hereto as an appendix is a compilation of
Respondents' various documents concerning Burns' record. There are approxi-
mately 70 grievances. Certainly he was familiar with the grievance machinery, not
only because of his own repeated participation in it himself as a complainant, but
also by his acting on behalf of other employees. All or many of his cases had been
processed through and by the Joint State Committee (Illinois)-some of which he
won, and some which he lost. This Joint State Committee consisted of an equal
number of members appointed by employers and unions but no less than three
from each group. Each State committee had jurisdiction over disputes and grievances
involving local unions or complaints by local unions in its area. The operators
and unions had erected, under the contract, a permanent Joint Area Committee to
which all deadlocked cases were mandatorily referred for appeal. The committees
functioned in accordance with procedures established in articles VII and VIII,
referred to hereinafter. Deadlocked cases might also be submitted to umpire han-
dling for decision if the Joint Area Committee so determined.
The State Committee Vote
Suffice to say, Burns' discharge appeal was duly processed by the Joint State
Committee. It appears from a study of the record of that proceeding that Burns
was given a fair and objective hearing, albeit the issues may have been vehemently
presented and discussed. The vote resulted in a tie-three members (names un-
known) voted to sustain the discharge, and three voted against discharge. Thus
the decision was deadlocked and was referred to the Joint Area Committee for final
disposition under the contract procedures. Admittedly, however, Burns had enemies
in Local 710.
The Trial Examiner came to the conclusion on the record in this phase of the
case that the logical inference to be drawn was that the union members voted for
Bums, and the management members voted to sustain the discharge-particularly
in view of the testimony of fellow driver Kaumanns. Employee Kaumanns sub-
mitted an affidavit which reads as follows:
FEBRUARY 13, 1962.
I, Ernest Kaumanns, in the company of William J. Burns, arrived at the Mack
Truck company in Nashville, Tennessee at 11:00 A M. on February 10, 1962.
I awoke and was told by Burns that our trailer #3089, was "dog-tracking"
and that he had been instructed by Winston Salem to take it to Mack Truck
for repairs. Mack could not repair the trailer and informed Winston of this
fact. Winston issued Mack a purchase order number and further instructions.
We, and a Mack employee, proceeded to Safety Services Inc. (a Nashville align-
ment Co.) and a Foreman there told us that the trailer would have to be rebuilt
and that the repairs would take six hours but that they could not repair it until
Monday (2/12/62). Burns called Winston and was asked to take it to the
terminal in Nashville. Upon arrival at the terminal, and reporting to the
terminal manager, Burns went into the sleeper berth. At about 4 P M. we
(in the company of a mechanic that had been called by the terminal manager)
were directed to the Highway Equipment Co. of Nashville, arriving there at
about 4:30 P.M. I was told by the mechanic in charge it would take at least
six hours to repair the trailer. I drove the tractor to the nearest restaurant,
woke Burns, we ate, then both of us went to sleep in the tractor. I woke at
9:30 P.M., had coffee, then went to pick up the trailer-arriving there at 10.00
P.M. I picked up the trailer, checked the lights, checked to see if anyone was
around and finding no one, proceeded to Chicago.
I swear that this statement is true and correct to the best of my knowledge.
(S) Ernest Kaumanns,
ERNEST KAUMANNS.
Signature and statement witnessed by the undersigned.
(S) WILLIAM J. BURNS.
(S) AUDREY FORREST.
Subscribed before me on this 13th day of February 1962.
(S) MARIE VIERHE, Notary Public.
My commission expires Dec. 19th 1963.
ROADWAY EXPRESS, INC. 519
Area Committee Action Under Grievance Provisions
The testimony relating to the cause for the discharge is sharply disputed by the
parties. However, the Trial Examiner does not consider it necessary to reach this
issue of credibility-in line with the Board's decision in Denver-Chicago Trucking
Company, Inc., 132 NLRB 1416. There the Board considered a situation in many
ways similar to this case which involved the identical collective-bargaining contract.
Following their discharges, Burns filed grievances on behalf of himself and Kau-
manns which were heard by the Illinois Joint State Committee, as previously alluded
to. Because Kaumanns had not been given a warning letter within 9 months
preceding the time of discharge, his discharge was reversed. On March 29, 1962,
Burns' case was heard before the Joint Area Committee, likewise composed of equal
numbers of union and employer representatives. Joint Area Committee transcript
(Respondent's Exhibit No. 13 or item 52, Respondent's Exhibit No 14) pages 52-118
covers the proceedings after the deadlock at the Illinois Joint State Committee level.
Chairman Williams called the case for hearing stating: "Case No. 105 is as follows-
Local 710, Chicago vs. Roadway Express-William Burns-deadlocked at Illinois
Joint State Committee meeting. Grievance: appeal from Discharge February 12,
1962 `Please be advised that this is a protest of a warning letter received and/or
dated February 7, 1962. The letter stated that (1) I violated legal speed limits;
(2) violated company speed limits ; and (3) failed to notify the Company of my
arrest for speeding.' Mr. William Burns appeared and Mr. Gunn and Mr. Haggard
appeared for the Company; Mr. John Phalen appeared for the Union . .
James M. Hoff a, International Teamster president, appeared to take the spokes-
manship position in the conduct of this case at this point.
Mr. HOFFA: Let the record show that on page 30, case 105 it carries the
letter received by John Phalen with the following statement:
JOHN PHALEN, Business Representative,
710, 4217 South Halsted Street,
Chicago, Illinois.
Please be advised that this is a protest of a warning letter(s) received
and/or dated February 7, 1962. The letter states that (1) I violated legal
speed limits; (2) violated company speed limits and (3) failed to notify
the company of my arrest for speeding.
Then on February 12th Burns received a notification from Roadway Express
where they place a checkmaik in the box showing "discharge" and he states here:
"You violated our policy or contract by being unavailable for duty."
This went to the State Committee. This is signed by Roy Haggard.
This went to the State Committee, was deadlocked and is now referred to
the Joint Committee.
What is the union's position?
Mr. PHALEN: I have here a grievance-2/12/62-
Mr. HOFFA: Which one are you talking on now, the discharge or the warn-
ing letter first
Mr. PHALEN: Discharge. "Received a telegram informing me that I was
being discharged-or, I was discharged for being unavailable for duty on
2/10/62."
"According to statement presented to the Joint Committee on 2/27 /62, by
Roy Haggard, I was discharged for being unavailable for duty at Nashville,
Tennessee on 2/10/62. I maintain that I was in the sleeper at the time of ar-
rival and departure from the Highway Equipment Co. and did not at any time
have any conversation with the personnel concerning equipment repairs and so
forth."
Mr. HOFFA: What were the facts presented in the State Committee?
Mr. PHALEN: The State Committee was-
Mr. HOFFA: I am talking now from the union standpoint.
Mr. PHALEN: This is dated February 13th.
Kaumanns' Repudiation
At this point in the Joint Area hearing an affidavit from Kaumanns given to the
Board's Regional Office was introduced by the Union. This evidence repudiates
his previous affidavit and testimony. The Area Committee had this striking evidence
to consider in light of the record before the State Committee. This affidavit reads
as follows:
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Now comes Ernest Kaumanns who being duly sworn upon his oath deposes
and says:
When we arrived at the Nashville terminal Burns was driving. We pulled
into the yard and in a few minutes the Terminal Manager, whose name I don't
know came in with the dispatcher. The manager said "0, no, not you again"
to Burns. The manager then said to pull the trailer around to the back and
I did so. Burns got in the truck with me. After we pulled around I went inside
and called Roadway's Chicago office. The dispatcher asked if I could drive
the truck into Chicago. I asked if he'd be responsible. He said no. I said
I'd try as I didn't think the trailer was in too bad shape. The Terminal Manager
said "You won't take it anywhere, I am going to have it fixed here."
The Terminal Manager then called a mechanic from the B & S Diesel Service
in Nashville. He came out in about 45 minutes or so. When he came out he
looked the tandem over, went into the office and then came back and said we
should take the truck to Highway Equipment to get it fixed. He rode in the
cab with us to show us the way. Burns was in the truck all of this time.
Before he got in the truck the mechanic told me it would take 4 to 6 hours to
fix the truck. I do not think Burns asked the mechanic, while in the truck,
how long it would take to fix it. I do not believe that Burns had any con-
versation with the Terminal Manager after we pulled in and the manager first
saw us. As nearly as I can recall, he stayed in the truck the entire time.
The manager at Nashville did not tell us to stay with the trailer nor did he
give us any other orders.
When we got to Highway Equipment Co. the shop foreman came out and
examined the trailer. He then told me it would take from four to six hours
to fix the trailer. This was at 4 p.m. Burns was in the sleeper cab and had
no conversation with the foreman. The people from Highway then dropped
the trailer. I then told the shop foreman that we were going to get some-
thing to eat. I did not tell him where we were going nor did he ask. We
then drove to a restaurant downtown. I don't know the name of the restaurant.
I would say that it was a couple of miles away. It was Burns' idea to go there.
We then went to the "Grand Old Opry" because the B & S mechanic had
told us it would take long enough for us to see the "Grand Old Opry." The
"Grand Old Opry" is held in an auditorium in Nashville, I don't know the
name of the street, it's on. It begins at 7 30 or 8.00 p in. We were there
when it started and we remained there until about 10 p.m., or possibly 9:30
p.m. We weren't seen there by anyone that I know of. I had never been
there before. I don't know if Burns had. It was his idea to go there. Dur-
ing the time we were there our tractor was parked on the street in a metered
zone near the "Grand Old Opry." I don't know if anyone from Roadway saw
the tractor or not. It was about 10 p.m or 10:15 when we got back to
Highway Equipment. There was no one there. I was driving We hooked
up the trailer together and drove into Chicago.
When we got back to Chicago nothing was said to us. On Feb 13 at about
2.30 I went to Roadway to see how I stood on the Board. I talked to Fred,
the dispatcher, I asked him how it looked. He asked me if I would stick around.
I said I would At 3 p.m. he told me I would go out at 5 p.m. He said
he'd send an extra man out because Burns had been fired. I had learned a
little earlier that Burns had been fired because T noticed his name wasn't on
the Board I asked Fred and he told me "Burns has been fired because of what
happened down at Nashville."
At about 5:15 p in , while I was waiting for the extra driver Johnson called
me into the office and told me I was fired for being unavailable for duty at
Nashville Tenn. and Chicago, Ill. On Monday, Feb. 12 1 had called Burns
and told him I was going out for a while and asked him to take my call I
didn't know at the time that he was fired. It was my intention to check back
with him later. The company had called me while I was out. They didn't
call Rurns because he was fired About 6.30 o m. that night I called Roadway
and the dispatcher told me that I'd been called and asked where I'd been We
have had the call in the contract for some time but it had not been enforced
until Burns came to Roadway and caused a fuss about it, among other things.
When Johnson called me in and fired me he didn't ask me any questions about
Nashville. I argued with him and told him he couldn't make the firine stick.
He said "We'll see" I don't think that Burns name was mentioned in the
conversation. I do not think they really wanted to fire me They just did so
to get to Burns because he has been nothing but trouble. At the hearing they
didn't press the case against me very much.
ROADWAY EXPRESS, IN C. 521
After I was fired I went over to see Burns. I told him I'd been fired. He
asked me to give him a statement. He typed up a statement. I did not
dictate it to him but a couple of times I had to change some things he wanted
to put in the statement because they were untrue. I don't recall what they
were There was a girl present who signed the statement as a witness. Parts
of the statement is untrue. The parts of it that are untrue are the parts which
state that we ate at the nearest restaurant, that the mechanic told me that it
would take 6 hours (he had said 4 to 6 hours) and that both of us slept in
the truck. I did not wake up at 9:30 p.m. I was at the Grand Old Opry at
9:30 p.m. together with Bums.
I don't know why I gave Burns the statement that I did. He did not promise
me anything for the statement. I was sore at the company because I'd been
fired. After I signed the statement Burns signed it and Audry Forrest signed
it. Later Burns gave me a copy of the statement. When he gave it to me
it was notarized by a Marie Vierhe. I did not go to any Notary nor do I
know who she is.
At the Joint State Committee Burns called me as a witness. At the hearing
I testified that I hadsigned the statement.
I don't know if anyone from the company asked me whether the statement
I signed was true. I don't remember if anyone from the company asked me
about the statement. I have been asked by various people from the com-
pany, Haggard and Johnson, what happened in Nashville. I don't recall
when they asked me. It was after I was fired. I think Haggard asked me on
the phone about it the night I was fired and I then went to the terminal and
spoke to them, or at least Haggard. That night I did not tell Haggard that we
were at the Grand Old Opry. I have not as yet told the company the truth.
No one from the union has asked me what took place in Nashville. I am
telling you the truth now because this has been on my conscience ever since
I gave Burns the statement and I do not want to perjure myself.
We did not eat at Shaneys on the night in question in Nashville. This is a
drive-in on U.S. 41 in Nashville about 2 miles south of downtown Nashville,
about 2 or 3 blocks west of Highway Equipment. I have eaten there in the
past with Burns. This was on Jan. 26, 1962 according to my log. This was
the day of the I.C.C check. This was the only time I've eaten there. I was
not there at all on the night of Feb. 10. I wanted to go there but he wanted
to go downtown. I can't remember the name of the restaurant we ate in
on Feb 10 It was located on 41A about I/2 block from the Federal Bldg. in
which the ICC's located. It is about 1/2 block north of the courthouse. I had
a meal and coffee. Burns had a meal and beer. He had two bottles I think.
It has a player piano that a girl sits on It is primarily a sea food house I
think but I am not sure. I believe I had fish but I'm not sure. It is about 4
blocks from the Grand Old Opry. We walked to the Grand Old Opry from
the restaurant.
I don't remember who was starring at the Grand Old Opry that night.
It cost $1.00 or $1.50 to get in I purchased a program for $1.00 and gave
it to my girlfriend who still has it. At the Grand Old Opry you sit on church
benches facing a stage. The performers are on the stage broadcasting over
WSN. It is cowboy music. No dancing is allowed It was quite crowded
on the night we were there. It was still on when we left I understand the
performance last about 4 hours. Neither Burns or I knew where the studio was.
I think the B & S mechanic told us where it was located.
I have had the above statement read to me and consisting of six pages, this
included, and swear it is true.
2515 So. LAWNDALE AvE.
762-6377
Subscribed and sworn to before me this
Chicago, Ill.
ERNEST H. KAUMANNS,
26th day of March , 1962 at
0
J. E. CLONEY.
Record of Joint Area Committee Hearing
The Trial Examiner was favorably impressed with the record made at the Joint
Area hearing. It consists of 65 pages of testimony taken and transcribed by an
official reporter of Ace Reporting Co. James M Hoffa. acting in the nature of a
proctor for the committee, conducted the interronating of the speakers in an apparent
objective and careful manner. The witnesses did not testify under oath, but an-
parentlv all spoke freely without coercion or harassment. Of course. a cold
typographical record will not show the emotions of the testifier, the intonations, nor
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reflect the demeanor of the person interrogated. However, from his reading and
careful study of the entire transcript, the Trial Examiner personally feels that all
parties were treated alike, and at least in this hearing, were given their "day in court."
The hearing ended on a colloquy beginning on page 114 as follows-
Mr. HOFFA: What do you say to that9
Mr. BURNS: Yes, that's true.
Mr. HOFFA. Did you withhold any evidence at the State Committee?
Mr. BURNS: No, sir, I did not.
Mr. HOFFA: Did you have an opportunity to present all your evidence to
that State Committee that upheld that warning letter?
Mr. BURNS. At the present time as far as I know I did have.
Mr. HOFFA: I want to ask you one question then. Are you familiar with
Section (a) of Article 8 as well as Section (b)?
Mr. BURNS: Yes, I am.
Mr. HOFFA: Then I want to ask the question of you again. Have we as a
union represented you properly, presented your case with all evidence you sub-
mitted to us, and have you been permitted to submit all the evidence you have
in your possession at this time before this duly constituted committee?
Mr. BURNS: I still say "no." This case would have to be gone into con-
cerning the previous warning letter once again.
Mr. HOFFA• I am talking about this discharge.
Mr. BURNS: I made the statement, as far as the discharge in itself at this
particular hearing, I have no further evidence. I have made the statement.
Mr HOFFA: Have you been given every opportunity to examine documents
submitted by the company and ask questions concerning them, and have you
been properly represented here?
Mr. BURNS: I have had the opportunity to examine the documents but I feel
that unless the case is heard in its entirety I have not been properly represented
here
Mr. HOFFA: You are familiar with Section (a) which precludes this com-
mittee from hearing evidence pertaining to a case under Article 8(a) once a
majority vote has decided that case where you have been afforded an oppor-
tunity at the State Committee, to submit all evidence and have an opportunity
of properly presenting your case? Can we have an answer, Mr. Chairman?
CHAIRMAN WILLIAMS- Do you have an answer to that?
Mr. BURNS' To what, sir?
Mr. HOFFA: Read the last statement I made.
(The last question was read back.)
Mr. BURNS: I will state I have read the agreement insofar as it is concerned
but familiarity would be something else.
Mr. HOFFA: I have nothing else.
Chairman Williams announced, "There is a unanimous decision by this committee
that the claim of the Union be denied and that the discharge of William Burns
be upheld."
Conclusion
The question presented here is whether the proceeding before the Joint Area
Committee meets the standards of fairness and regularity required under the Board's
doctrine in Spielberg Manufacturing Company, 112 NLRB 1080. The Trial Ex-
aminer finds that in this case the same rule and rationale applies as the Board
applied in the case of Denver-Chicago Trucking Company, Inc., 132 NLRB 1416.
The same labor contract applied here as there and the factual situations are similar.
In the language of the Board, we are confronted squarely with the question whether
the Board will honor the findings of the Joint Area Committee in accordance with
the Spielberg case (supra). It is clear, however, that the Board's jurisdiction over
unfair labor practices is exclusive under the Act and that the Board is not, therefore,
bound by an arbitration decision or by grievance procedures established by a
collective-bargaining contract between the parties. The Board concluded in
Spielberg:
In summary, the proceedings appear to have been fair and regular, all parties had
agreed to be bound, and the decision of the arbitration panel is not clearly
repugnant to the purposes and policies of the Act. In these circumstances we
believe the desirable objective of encouraging the voluntary settlement of labor
disputes will best be served by our recognition of the arbitrators' award.
No claim was made that the hearings in these cases differed procedurally from
established practice nor was any claim of collusion asserted. Under these circum-
ROADWAY EXPRESS, INC. 523
stances, failure to adopt the decision of the committee would imply an obligation to
fix standards of formality in procedure on the part of grievance and arbitration panels
which must be met before their awards could receive endorsement. We consider
it enough under Spielberg if the procedures adopted meet normal standards as to
sufficiency, fairness, and regularity. As to these, each case must rest on its own
bottom. Where, as here, the parties have found that the machinery which they
have created for the amicable resolution of their disputes has adequately served its
purpose, we shall accept such a resolution absent evidence of irregularity, collusion,
or inadequate provisions for the taking of testimony.
CONCLUSIONS OF LAW
1. The operations of Respondent Roadway Express, Inc., affect commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local Union No. 710, International Brotherhood of Teamsters, and Rebel
Teamsters are labor organizations within the meaning of Section 5 of the Act.
RECOMMENDATION
In view of the foregoing findings of fact and conclusions of law, it is recommended
that the Board not disturb the decision of the Central States Joint Area Committee.
APPENDIX A
BURNS' COMMUNICATION TO THIRTEENTH REGION
(Certified Mail)
FEBRUARY 19, 1962.
Mr. Ross MADDEN,
% National Labor Relations Board,
176 West Adams Street,
Chicago 3, Illinois.
DEAR SIR: Please be advised that I was discharged from my position as a highway
truck driver by my employer, Roadway Express Inc, on February 12, 1962. Mr.
L. K. Johnson (terminal manager) called me at my home at 4:45 P.M on 2/12/62
and informed me that I was being terminated because I was "unavailable for duty"
at Nashville, Tennessee on February 10, 1962. Also, on 2/12/62, I received a
Telegram at 8:00 P.M. which was signed by Mr. Roy Haggard (operations manager)
that states "You are herewith discharged for being unavailable for duty on Feb.
10th 1962." On February 13th, I received a certified letter (#920405-postmarked
2/12/62) that also informed me of my discharge. All communications originated
from the offices of Roadway Express Inc. which are located at 3400 West 51st Street,
Chicago 32, Illinois.
A certified letter dated 2/12/62, was sent to Mr. John Phalen (business representa-
tive) of Local Union 710 of the International Brotherhood of Teamsters located at
4217 South Halsted Street, Chicago, Illinois in protest of my discharge. This letter
was sent in accordance with Articles 8 and 10 of the Over-The-Road Motor Freight
Agreement because it is my belief that failure to protest and/or appear will result
in an automatic forfeiture in my case.
It is also my belief that I WILL NOT RECEIVE A FAIR HEARING because of
the following:
#1. I am President of the REBEL TEAMSTER UNION and I openly oppose
Mr J. R. Hoffa and the present officers of local union #710.
#2. I have publicly denounced the Joint State Committee ( and some of its
members) as being "phony".
#3. I have publicly declared that the Companies and the union are in collusion.
#4. At a hearing before the J S.C. on 11/28/61 I was denounced by a Board
member (P. Janopoulous) WHILE THE BOARD WAS IN SESSION!!!
#5. I have openly opposed the ILLEGAL operations of Roadway Express Inc:
#6. I was campaign manager of a group that opposed the incumbent officers of
Local 710 at an election in December 1961.
#7. During the election I was slandered by officers of Local #710 and was dis-
criminated against by certain employers.
At the hearing (which is to be held on February 27, 1962 at the Shoreland Hotel
in Chicago) I will request the committee to consider the following request:
# 1. Permission to record the proceedings (previously denied)
#2. A copy of the transcript of the hearing (previously denied)
# 3. Permission to have my attorney present (previously denied)
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
#4. Federal Arbitration
#5. A public poll of all votes
#6. Names of all persons sitting on Board
#7. A copy of Joint State Committee rules and regulations
#8. Witnesses in my behalf (previously denied)
#9. Names of all witnesses of the opposition
It is my belief that the Joint State and Joint Area Committees are nothing but
"kangaroo courts" and I have some evidence to support this belief which is now
being recorded on tape. A copy of this tape is available to you upon request.
In closing, my only crime is that I expect Roadway Express to abide by the written
agreement and the Local, State and Federal laws.
Sincerely,
(S) William J . Burns,
WILLIAM J. BURNS.
1258 SOUTH MICHIGAN AVE., CHICAGO 5, ILLINOIS.
cc: John Cloney
File
APPENDIX B
OVER-TIE-ROAD MOTOR FREIGHT AGREEMENT
ARTICLE 8.-Grievance Machinery and Union Liability
SECTION 1.
(a) Where a Joint State Committee, by a majority vote, settles a dispute, no
appeal may be taken to the Joint Area Committee. Such a decision will be final and
binding on both parties. Provided, however, that the Joint Area Committee shall
have the right to review and reverse any decision of the Joint City or State Com-
mittee and make a final decision on the case if the Joint Area Committee has reason
to believe the decision was not based on the facts as presented to the City or State
Committee or in the possession of either party and not presented to the City or
State Committee, provided further, however, that such action by the Joint Area
Committee may be taken only by unanimous vote.
(b) Where a Joint State Committee is unable to agree or come to a decision on
a case, it shall, at the request of the Union or the Employer involved, be appealed
to the Joint Area Committee at the next regularly constituted session.
APPENDIX C
RESUME OF WILLIAM J. BURNS' GRIEVANCE AND WARNING HISTORY
Item
No
Date Item
GO 11--- 1 5/16/60 WARNING LETTER
O C. 12--- 2 5/21/60
Reporting late for duty on 5/13160.
WARNING LETTER AND SUSPENSION-
O.C. 15--- 3 6/23/60
1-day suspension (5/21-22 /60) refusing a load on 5/21/60.
WARNING LETTER
G.C. 14--- 4 6/17/60
Speeding 6/12/60
BURNS LETTER TO PHALEN (13 items).
5 6/27/60 PR-26 REPORTING #4 ABOVE
1) Protesting warning letter and suspension of 5/21/60.
2) Run-around of Roth and Benzine 3/26-27/60.
3) Run-around by Washlow 4/13/60.
4) Run-around by Baronick 4/19/60
5) Run-around by Hibbs 5/4/60
6) Run-around by Taylor 5/5/60.
7) Run-around by Poole 4/17-30/60.
8) Protesting warning letter of 5/16/60. (Second time
9) Protesting correction of log sheet 5/12/60.
10) Run-around of Hendel 6/10/60.
11) Protesting Article XXII
a) 1-hour 1/22/60
b) 1-hour 2/12/60
c) 3,^ hour 2/28/60.
d) $2 48 meal ticket 3/6/60
e) 1%-hour 3/30/60
f) % hour and $2 06 meals 4/3/60.
ROADWAY EXPRESS, INC. 525
RESUME OF WILLIAM J. BURNS' GRIEVANCE AND WARNING HISTORY-Continued
Item
No.
ItemDate
g) 34 hour 5/4/60.
h) 2 hours 5/8/60
1) 5 hours 6/4/60.
12) Protesting abuse of free time.
6 6/28/60 PR-27 REPORTING-RESULTS OF 6/27/60 ILLINOIS STATE
HEARING
1) Pay 24 hours-due to no prior warning letter-all other items
"not properly before committee "
G.C 16--- 7 7/ 6/60 BURNS' LETTER TO ROY HAGGARD 7/6/60 (carbon copy to:
Local 710 and Galen Roush)
1) Protest warning letter 5/16/60 (third time)
2) Protest warning letter and suspension 5/21/60 (he won this-6/27-
protesting again)
G.C. 17--- 8 8/23/60 PHALEN COVER LETTER AND BURNS' GRIEVANCE.
8/21/60 1) Poole run-around 4/16-17/60 (withdrawn).
2) Poole run-around 4/25-26/60 (withdrawn).
3) Roth and Benzine run-around 3/26-27/60 (withdrawn).
4) Washlow run-around 4/12-13/60 (pay 634 hours).
5) a) Taylor run-around 5/5/60 (withdrawn).
b) Order of dispatch (withdrawn).
6) Request bid runs (withdrawn)
7) City drivers to Ottawa , Illinois 8/9/60 (withdrawn).
8) a) Protest warning letter 5/16/60 (withdrawn) (Company to
withdraw letter).
b) Protest warning letter 5/21/60 (previously protested).
c) Protest warning letter 6/23/60.
9) 1-hour pay 2/12/60 (pay 1 hour)
10) % terminal time 2/22/60 (withdrawn)
11) 34 hour high water 3/30/60 (withdrawn).
12) % hour layover 2/28/60 (withdrawn)
13) $2 06 meal allowance 4/3/60 (pay $2 06).
14) 42 miles on 8/9/60 (pay 42 miles).
G.C. 18--- 9 9/10/60 HAGGARD LETTER TO BURNS WITHDRAWING WARNING
LETTER OF 5/16/60 FOR REPORTING LATE FOR DUTY.
O C. 19--- 10/18/60 Grievance.
G.C.20--- 10 11/ 1/60 PHALEN COVER LETTER AND BURNS' GRIEVANCE
12/13/60 CLAIMING RUN-AROUND ON 10/ 29/60.
11 12/21/60 PR-26 FORM RE ABOVE GRIEVANCE.
12 12/21/60 PR-27 FORM REPORTING ABOVE CLAIM UPHELD BY
ILLINOIS STATE GRIEVANCE COMMITTEE ON 12/ 20/60.
G C. 7---- 1 13 3/28/61 BURNS' LETTER TO O'BRIEN (Carbon copy Hotfa, R. Kennedy,
Goldberg, Qualls) (Copy to Roush-to Gunn).
14 3/31/61 GUNN MEMO TO L K JOHNSON RE ABOVE REQUESTING
ADVISE.
15 4/ 3/61 L. K JOHNSON MEMO TO GUNN
1) Pay claim-was paid
2) Company falsifies log books-drivers keep log book.
3) Fail to maintain equipment-we regularly inspect and service
equipment.
4) Company permits excessive hours ICC-deny.
5) Illegal operation and overloading-no knowledge of illegal opera-
tion and units not overloaded for roads over which scheduled
to travel.
6) Driver arrests overloads-Company is arrested not driver. Com-
pany pays fines
7) Don't recognize union contract-deny.
8) Harrassment of members-deny
9) Dispatch of defective equipment-deny.
10) Burns run-around claim South Bend-Burns sick and properly
placed on board upon return.
11) Run-around Winston-Salem team to Atlanta-factual case paid.
12) Claim 19 hours breakdown South Bend-denied.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RESUME OF WILLIAM J. BURNS' GRIEVANCE AND WARNING HISTORY-Continued
Item
No
Date Item
16 5/ 8/61 L. K. JOHNSON MEMO RE RECOMMENDATION OF BURNS
17 5/11/61
FOR DRIVER SUPERINTENDENT POSITION.
H. A. SYKES MEMO RE BURNS FOR DRIVER SUPERIN-
. C 23 8 /17/61
TENDENT POSITION-NO:
1) Should have respect of men.
2) Should be loyal to Company.
3) Promotion would indicate that trouble makers move up.
4) Want aggressive leader not fighter and trouble maker.
PHALEN COVER LETTER AND BURNS LETTER OF GRIEV-
7/19/61
ANCE:
1) Poole run-around 6/21/61.
19
20
7/25/61
7/26/61
0. C. 24 1 21 1 8/10/61
22 8/16/61
8/16/61
2) "Willie" run-around 7/2/61.
3) Felger run-around of Poole and Hibbs 7/2/61 (Poole and Hibbs
have not claimed)
4) Burns run-around of Ozmanski 5/19/61
5) Run-around for all Winston-Salem sleepers to Milwaukee.
(March 1961-approved by JAC )
6) Smith and Martin run-around of 0 zm anski and Felger on opening
day of new bids.
7) Protesting dispatch Chicago drivers from Atlanta to Chicago via
Greenville.
8) Protesting action of Roadway in wilfully violating local, state
and federal laws-overloading.
9) Protesting dispatch system-requesting seniority extra board.
10) Claim 3$ hours plus meal on 4/21/61.
11) Claim mileage pay on 4/11/61.
PR-26 REPORTING ABOVE GRIEVANCE.
PR-27 REPORTING RESULTS OF ABOVI HEARD ON 7/25/61:
1) Hold over at Burns'request.
2) Denied.
3) Denied.
4) Denied.
5) Joint Area Committee.
6) Denied.
7) Joint Area Committee.
8) Improperly before committee.
9) Denied.
10) Pay 3 hours.
11) Pay $2.35
L. K. JOHNSON LETTER TO BURNS-TERMINATING-
Refusal to accept work assignment.
PHALEN COVER LETTER AND BURNS GRIEVANCE:
1) Protest sleeper team Chicago to Atlanta to South Bend to Atlanta
to South Bend to Chicago.
2) a) Protesting abuse of free time 4/3/61.
b) Run-around at Atlanta apparently 4/3/61.
3) Hibbs run-around of Burns 3/5/61.
4) Run-around of Burns by entire board 3/25, 28/61.
5) Reopen #2 beard 7/25/61 which was denied
6) a) J hour shoptime 4/12/61.
b) $1 65 meal on 4/14/61.
7) Run-arounds of self since 1/21/60 because no seniority dispatch.
8) Protesting Winston-Salem team from Milwaukee 6/20/61 to
Boston.
9) Protesting Winston-Salem team from Milwaukee 3/8/61 to Atlanta
10) Protesting Winston-Salem team from Milwaukee 3/8/61 to
New York.
11) Shaw and Orr run-around 2/11/61.
12) Protesting dispatch sleeper teams from St. Louis.
13) Claim for additional pay 40,000 pounds.
14) Mileage claim on 5/19/61.
ROADWAY EXPRESS, INC. 527
RESUME OF WILLIAM J. BURNS' GRIEVANCE AND WARNING HISTORY-Continued
Item
No
23
24
ItemDate
15) a) 8 hour pay 8/3/60-Loss of day's pay.
b) 8 hour pay 11/29/60-Loss of day's pay.
c) 8 hour pay 12/20/60-Loss of day's pay.
d) 8 hour pay 12/26/61-Loss of day's pay.
16) Protesting discharge of 8/10/61.
8/16/61 PR-26 FORM ON ABOVE.
9/ 5/61 PR-27 FORM ON ABOVE WHICH WAS HEARD 8/29/61:
1) Improperly before committee.
2) Pay 6 hours
3) Hold over
4) Hold over.
5) Hold over.
6) a) Pay j hour.
b) Denied.
7) Referred Joint Area Committee.
8) Referred Joint Area Committee.
9) Referred Joint Area Committee
10) Referred Joint Area Committee.
11) Pay 6 hours.
12) Referred Joint Area Committee.
13) Pay 91e.
14) Pay $4.74.
5 /29/61
15) Denied.
16) Reinstate-Pay $559 81. Reduce discharge letter to warning
letter.
WARNING LETTER-in lieu of discharge letter of 8/10/61 per com-
26 9/ 7/61
mittee-refusing work assignment
WARNING LETTER-being unavailable for work 9/5/61.
G.O.26 9/11/61 Dr certificate.
27 9/11/61 PHALEN'S LETTER PROTESTING WARNING LETTER
8/29/61 AND 9/7/61
28 9/20/61 PR-26 FORM ON ABOVE GRIEVANCE.
29 10/23/61 PR-27 FORM REPORTING RESULTS HEARING 9/26/61.
30 10/16/61
Both warning letters stand-protest denied
GUNN LETTER REQUESTING TRANSCRIPT OF SEPT. 1961.
Sept 1961 JAC AND PAGES 88-124 OF SEPT 1961 JAC MEETING:
G.O.26 31
JAC
11/10/61
Result of seniority dispatch-denied.
Result of Winton-Salem-Milwaukee-denied.
WARNING LETTER-unavailable for work 11/8/61
32 11/22/61 WITHDRAW LETTER OF 11/10/61 FOR BEING UNAVAILABLE
11/8/61
G.O. 27 1 33 11/20/61 PHALEN LETTER AND BURNS' GRIEVANCE:
11/21/61 1) a) Protest warning letter of 11/10/61.
b) Run-around 11/9/61.
34
35
36
37
38
2) 10 hours delay time 10/29/61 per 12/20/61 decision.
3) Run-around trailer 3133 11/18/61
4) a) Delay time for Hibbs and Burns on 12/9/60 South Bend-12
hours
b) Delay time for Hibbs and Burns on 1/9/61 Gadsden, Alabama-
8 hours
5) Protest of Company requiring Doctor's certificate.
12/ 4/61 PR-26-REPORTING ABOVE
12/ 5/61 PR-27-REPORTING RESULTS OF MEETING 11/28/61:
1) Improperly before committee.
2) Denied
3) Improperly before committee.
4) 9t, hours South Bend
5) Pay Chicago-Atlanta turn-around.
1/29/62 WARNING LETTER-OFF ROUTE 1/26/62.
1/29/62 WARNING LETTER-FAILURE TO FOLLOW INSTRUCTIONS
1/26/62
1/29/62 WARNING LETTER-DELAYING FREIGHT 1/26/62.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RESUME OF WILLIAM J. BuRNs ' GRIEVANCE AND WARNING HISTORY-Continued
Item
No.
Date Item
39 2/ 7/62 WARNING LETTER-SPEEDING, VIOLATING COMPANY
SPEED AND FAILURE TO NOTIFY COMAPNY OF ARREST
ON 1/7/62
40 2/12/62 PHALEN LETTER.
41 2/15/62 PR-26
1) 3 hours on 1/26/62-ICC check.
2) 5 hours at Atlanta-Breakdown
3) Warning letters 1/29/62.
4) Vacation pay 1959-1960
42 2/28/62 PR-27 REPORTING RESULTS 2/27/62
1) Claim upheld.
2) Claim upheld
3) Warning letters invalid.
4) Denied
43 2/12/62 DISCHARGE LETTER-being unavailable for duty 2/10/62.
44 2/19/62 PHALEN LETTER OF PROTEST OF DISCHARGE
45 2/20/62 PR-26
1) Protest warning letter 2/7/62-speeding
2) Protest discharge
46 2/28/62 PR-27-Discharge-deadlocked to Joint Area Committee.
46a -------------- TRANSCRIPT OF ABOVE
47 2/28/62 PR-27-Protest of warning letter of 2/7/62 for speeding-Denied Warning
letter to stand
48 3/ 5/62 LETTER WITHDRAWING WARNING LETTER OF 1/29/62-
failure to follow instructions
49 3/ 5/62 LETTER WITHDRAWING WARNING LETTER OF 1/29/62-
off route
50 3/ 5/62 LETTER WITHDRAWING WARNING LETTER OF 1/29/62-
delaying freight
51 3/29/62 PR-27-Joint Area Committee upheld discharge on 3/27/62
52 JAC 3/62 JOINT AREA COMMITTEE TRANSCRIPT PAGES 52-118.
SUPPLEMENTAL INTERMEDIATE REPORT
On June 3, 1963, Trial Examiner John C. Fischer issued his Intermediate Report
and Recommended Order in the above-entitled proceeding, in which he concluded
that the proceeding before the Central States Joint Area Committee, herein called
the Committee, met the standards of fairness and regularity required under the
Board's doctrine in Spielberg Manufacturing Company, 112 NLRB 1080. He there-
fore found it unnecessary to resolve certain credibility issues, made no findings
with respect to the 8(a)(1) and (3) allegations as set forth in the complaint, as
amended, and recommended that the Board not disturb the Committee's decision
to uphold the discharge of William Burns, the Charging Party herein. Thereafter,
on June 26, 1963, the Charging Party filed exceptions to the Intermediate Report.
Neither the General Counsel nor Respondent Roadway Express filed exceptions to
the Intermediate Report.. (The Trial Examiner applied literally the Spielberg rule.)
The Board on August 7, 1963, issued an order remanding proceeding to Trial
Examiner Fischer for the preparation and issuance of a Supplemental Intermediate
Report, setting forth the resolution of credibility issues, and findings and conclu-
sions with respect to the unfair labor practices alleged in the complaint, as amended.
William J. Burns (hereinafter referred to as Burns or the Charging Party), on
February 23, 1962, filed charges against Roadway Express, Inc. (hereinafter referred
to as the Respondent), alleging violations of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (hereinafter referred to as the Act) On June 1, 1962,
the General Counsel of the National Labor Relations Board (hereinafter referred
to as the Board), issued a complaint against Respondent, alleging it had violated
Section 8(a) (1) and (3) of the Act.
By certified mail, bearing date of March 6, 1963, the Trial Examiner received a
six-page document (carbon copy) addressed to Mr. Irving Herman, Director, Office
of Appeals, National Labor Relations Board. A notation opposite the signature
"William J. Burns" indicates that a similar carbon copy was also sent to the At-
ROADWAY EXPRESS, INC. 529
torney General of the United States. This document, in the nature of a brief, pur-
ports to be a request for review of Cases Nos. 13-CA-5009 and 13-CA-1253-1,
1253-2, 1253-3. Receipt of this document was acknowledged by the Trial Examiner
only as "noted." It was not a part of the formal file of this case and was not then so
considered by the Trial Examiner. However, the Trial Examiner has taken official
notice of such document and makes it part of the record as Appendix 1. Upon
the entire record in this case, including the admissions in the answer, the stipula-
tions of the parties, the briefs filed, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
Local Union No. 710, I.B. of T. (hereinafter referred to as Local 710) has been
the collective-bargaining agent for Respondent Roadways' over-the-road drivers.
The provisions of the contract between the parties are contained in the Over-the-Road
Motor Freight Agreement for the Central States area. Burns, the Charging Party,
began working for Roadway as an over-the-road driver on January 21, 1960. Burns
was discharged by Roadway on February 12, 1962. Respondent's defense was
that Burns was discharged for "cause" in that he abandoned for at least 3 or 4 hours
at night in Nashville, Tennessee, his trailer loaded with a valuable cargo. General
Counsel urged that Burns was discriminatorily discharged because of his engage-
ment in protected union activities guaranteed by Section 7 of the Act-the defense
a mere pretext-thereby violating Section 8(a) (1) and (3) of the Act.
Under the grievance procedure provided by the contract between Respondent
and the Union, Burns' discharge became the subject for action under the grievance
procedure before the Joint State Committee which consisted of six members-
three chosen by management and three by the Union. The meeting was dead-
locked with three members voting to sustain the discharge, and three members
voting to sustain the Charging Party's grievance. Grievances resulting in a tie vote
of the State committee automatically went to the Joint States Area Committee for
final disposition. The Joint Area Committee unanimously sustained the discharge
and disallowed the grievances.
Within a week after his discharge on February 12, 1962, for being "unavailable,"
Burns wrote a letter, dated February 19, 1962, to Mr. Ross Madden, Regional Di-
rector for Thirteenth Region, in which he stated, among other things, "It is my
belief that the Joint State and Joint Area Committees are nothing but `kangaroo
courts' and I have some evidence to support this belief which is now being recorded
on tape. Copies of this tape is available to you upon request. In closing, my
only crime is that I expect Roadway Express to abide by the written agreement
and the Local, State, and Federal Laws ... it is also my belief that I WILL NOT
RECEIVE A FAIR HEARING because of the following:
#1. I am President of the REBEL TEAMSTER UNION and I openly op-
pose Mr. J. R. Hoffa and the present officers of Local union #7 10.
#2. I have publicly denounced the Joint State Committee (and some of its
members) as being "phony."
#3. I have publicly declared that the Companies and the union are in
collusion.
#4. At a hearing before the J.S.C. on 11/28/61 I was denounced by a
Board member (P Janopoulous) WHILE THE BOARD WAS IN SESSION"!!
#5. I have openly opposed the ILLEGAL operations of Roadway Express
Inc:
#6. I was campaign manager of a group that opposed the incumbent officers
of Local 710 at an election in December 1961.
#7. During the election I was slandered by officers of Local #710 and was
discriminated against by certain employers."
Voluminous testimony was taken for the record. Much of this testimony con-
cerns the multifarious grievances which Burns filed, together with his extensive
warning history. Also, Burns underwent nearly 5 days of searching cross-
examination by Respondent Counsel Rabe. A resume of Burns' 70 grievances ap-
pears as Appendix C in the Intermediate Report. In his brief to the Trial Examiner,
the General Counsel stated that he could see only two points of testimony where
Burns' credibility is challenged. He cited the first question as being whether P'irns
was ever told to stay with the trailer unit while it was being repaired in Nashville,
and secondly, where did Burns and Kaumanns go after leaving Highway Equipment
on February 10, 1962. The Trial Examiner agrees that there are really very few
disputed facts in this case other than the resolution of these two credibility issues.
Several witnesses were called to the stand and gave their versions of events within
734-070-64-vol. 145-35
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their knowledge . Whether significant or not, whether purposely or not, two wit-
nesses who were prime figures in this real life drama-Roadway Manager Johnson
and Burns ' companion -driver Kaumanns-were not called to the stand to testify
either by General Counsel or Respondent counsel . Bums denied that he was ever
told to stay with the trailer , and likewise denied that he went to the theater and
heard the "Grand Old Opry " while waiting for the trailer to be repaired . Rather,
after his supper, he claimed to have remained asleep in the cab until awakened by
Kaumanns hooking up the trailer , and starting for Chicago , about 10 p in.
Burns was not fired because he went to the Grand Old Opry and then lied about
it before the State committee. Burns was fired for leaving unattended for a
prolonged period his truck and trailer with its valuable cargo. Kaumanns received
the same treatment because he was in pari delicto.
As heretofore indicated , Burns and Kaumanns were engaged in a round trip from
Chicago to Atlanta. They left Atlanta on February 9. And at Murfreesboro,
Tennessee , Burns discovered that the trailer was out of alignment and was "dog-
tracking to the left ." Burns called Roadway's Winston-Salem terminal and re-
ported the facts to the dispatcher who ordered them to take the trailer to the Mack
Truck Company in Nashville . Arriving at the Mack Company in Nashville about
11 a.m., Burns was informed by the foreman that Mack could not make the repairs.
Burns reported this to Winston-Salem , and accompanied by a Mack Company em-
ployee drove to an alignment company in Nashville, Safety Service , Inc. It be-
ing about noon closing time on Saturday, Mr White, service manager for Safety
Service , told Burns that the trailer would have to be held over until Monday because
it would take approximately 6 hours to repair the trailer. Upon advising Winston-
Salem on this situation , Burns was instructed to take the trailer to Roadway's Nash-
ville terminal . Arriving at the terminal office Burns was advised that Mr. Shuford,
the terminal manager , was out to lunch. Shortly thereafter Shuford drove up in a
panel truck , and recognizing him as president of the Rebel Teamsters Union, and as
the driver who had complained to the Interstate Commerce Commission official in
Nashville on January 26 that his truck was unroadworthy, greeted Burns by saying,
"Oh, no not you again " Burns replied to Shuford : "I'm not here to argue about
anything. I'm here to tell you what I was told to tell you, and then it 's up to you.
Any further questions , I'll be glad to answer , but I 'm going to go into the sleeper,
and my partner can take care of the situation." According to Burns, after report-
ing the facts to Shuford he undressed and got into the bunk leaving the matter in
the hands of Kaumanns . Kaumanns reported the situation to Roadway 's Chicago
dispatcher and was told to return to Chicago . However, Shuford decided that the
trailer was unsafe and directed them to remain in Nashville until it was repaired
Shuford's testimony of the conversation with Burns at the terminal was- "I asked
the driver , Burns, what the trouble was. And he informed me that he was having
mechanical difficulties and that he wanted to get them repaired . so I told him
to stay with the unit, that he was on duty , and to do so until instructed to do
otherwise , and then I told him that I would take care of the repairing of the equip-
ment " (At the hearing , Shuford and his assistant , Bentley, testified that Shuford
told Kaumanns to stay with the equipment and that Burns was not present) There
is a conflict or a discrepancy in the testimony at the hearing as to whether Shuford
told Burns to stay with the equipment . Shuford testified that Bentley and Kaumanns
both were present when he told Burns to stay with the unit . Bentley. on cross-
examination , could not say positively whether he heard Shuford tell Burns to stay
with the truck , and Kaumanns in his affidavit stated, "The manager at Nashville did
not tell us to stay with the trailer nor did he give us any other orders ." However,
both Shuford and Bentley testified that Shuford told Kaumanns to stay with the
equipment although Burns was not present.
The Trial Examiner credits Shuford 's version simply because Shuford was a
reliable witness , and Burns was one credible only when his critical testimony was
corroborated or substantiated . Also, it would be implausible for a high-ranking
supervisor not to specifically direct subordinate truckdrivers to stay with their equip-
ment until it was in condition to continue and finish its trip. It would be the
normal comment that a responsible supervisor would make under the circumstances
Likewise the Trial Examiner accepts the statement of Shuford and Bentley that
Shuford directed Kaumanns to stay with the equipment even though Burns was not
present. Kaumanns ' affidavit that "the manager at Nashville did not tell us to stay
with the trailer nor did he give us any other orders ," may be ambiguous as to
whether he meant just the trailer or the whole equipment And likewise is the
phrase "nor did he give us any other orders." The Trial Examiner specifically
finds that both Burns and Kaumanns were ordered to stay on duty with their
equipment.
ROADWAY EXPRESS, INC. 531
About 4 p.m. Kaumanns, accompanied by mechanic Bernard Sharpe, started for
the Highway Equipment Company. Burns was asleep in the bunk. En route,
Sharpe advised Kaumanns that it would take between 4 and 7 hours to rebush the
trailer. Although Burns had awakened when the truck started for Highway Equip-
ment Company and was told of their destination, he remained asleep in the truck
while it was there. Highway Foreman Caldwell inspected the trailer, got Bentley's
approval to make the necessary repairs which would take from 4 to 6 hours, and
set his crew to work on the trailer about 4:30 p.m. The work was completed
about 7 p.m.
After Highway mechanics detached the trailer to work on it, Kaumanns awakened
Burns and suggested that they go to eat According to Kaumanns' version, given
in his affidavit to the Chicago Regional Office, and the true version as accepted by
the Trial Examiner, the following events transpired:
When Johnson called me in and fired me he didn't ask me any questions about
Nashville. I argued with him and told him he couldn't make the firing stick.
He said "We'll see." I don't think that Burns name was mentioned in the con-
versation. I do not think they really wanted to fire me. They just did so to
get to Burns because he has been nothing but trouble. At the hearing they
didn't press the case against me very much. After I was fired I went over to
see Burns. I told him I'd been fired. He asked me to give him a statement.
He typed up a statement. I did not dictate it to him but a couple of times
I had to change some things he wanted to put in the statement because they
were untrue. I don't recall what they were. There was a girl present who
signed the statement as a witness. Parts of the statement is untrue. The parts
of it that are untrue are the parts which state that we ate at the nearest
restaurant, that the mechanic told me that it would take 6 hours (he had said
4 to 6 hours) and that both of us slept in the truck. I did not wake up at
9:30 p.m. I was at the Grand Old Opry at 9:30 p.m. together with Burns . .
I don't know why I gave Burns the statement that I did. He did not promise
me anything for the statement. I was sore at the company because I'd been
fired After I signed the statement Burns signed it and Audry Forrest signed
it. Later Burns gave me a copy of the statement When he gave it to me it
was notarized by a Marie Vierhe. I did not go to any notary nor do I know
who she is . . . . I have not as yet told the company the truth. No one from
the union has asked me what took place in Nashville. I am telling you the
truth now because this has been on my conscience ever since I gave Burns
the statement and I do not want to perjure myself.
Some three conversations between Bentley and Caldwell were had while the
repairs were made. In one of these Bentley asked Caldwell to call him back when
the work was finished for further instructions. Bentley advised Dispatcher Saunders,
who relieved him, to call Terminal Manager Johnson in Chicago for instructions
and to advise him in the matter. Saunders testified that Caldwell called him about
8 p in. saying that the trailer was ready to go but the drivers were not there. He
testified that he asked Caldwell if he knew where the drivers were and Caldwell said
he did not know. Being informed by Caldwell that the shop was goine to be
closed, he stated that he did not want the trailer left locked in the shop, and asked
Caldwell if he thought it safe to leave the truck outside on the lot. Caldwell replied
that the area was well lighted and he thought it would be all right Saunders' testi-
mony in this connection was: "I told him to pull it outside where it could be picked
up when they were ready to go, when they came back."
Burns and Kaumanns arrived at Roadway's Chicago terminal about noon on
February 11, 1962. Nothing was said to either one of them at this time by either
Manager Johnson or Supervisor Haggard The next day, February 12, Johnson
telephoned Burns and told him he was terminated for being unavailable for duty
in Nashville on February 10. This discharge was confirmed by a telegram signed
by Mr. Haggard. The next day, February 13, Burns was informed by certified
letter of his discharge. Kaumanns was discharged the same day.
Contentions of Counsel
General Counsel Graf, in his brief to the Trial Examiner, argues •
First, it is established beyond a doubt that Burns was a good driver. He never
had an accident and had considerable knowledge of the trucking industry. He was
such a good driver that both the operations manager and the terminal manager were
vigorously recommending him for a supervisory position.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Secondly, it is manifest that Respondent disapproved of Burns ' actions in filing
grievances and asserting his contract rights. Such things were just not done by
Respondent's employees . Johnson made this abundantly clear to Burns in 1960
and let him know Respondent would weed out the radicals . Respondent 's attitude
toward Burns ' activities is shown by the testimony of Gunn and Haggard. Gunn
considered Burns as being "disloyal" while Haggard considered him "unfair."
Third, the record shows a direct correlation between Burns ' protected activities
and the way Respondent treated him . Whenever Burns would file a grievance or
assert a contract right, Respondent would retaliate by giving him a warning letter
or discharging him on the slightest pretext. The fact that Respondent was trying to
rid itself of Burns in this method became even more clear after he began his "Rebel"
activities in July 1961 . For example-on August 10, 1961 , Burns was discharged
for refusing to drive a truck which Johnson knew was overloaded , in violation of
the union contract. On August 29, 1961, he received a warning letter for the
August 10 discharge . On September 7, 1961 , he received a warning letter for being
unavailable for work (on which the instant discharge depends ) even though Haggard
knew he was sick and had excused his absence : on September 11, 1961, he was
required to have a doctor 's certificate to return to work although no such require-
ment previously existed; on November 8, 1961 , he was given a warning letter for
being unavailable for work even though Haggard knew he was called contrary to the
contract provisions ; on January 26 , 1962, he received three warning letters for having
a truck inspected by the Interstate Commerce Commission even though Respondent
knew the truck was defective and that Burns was going to have it inspected; on
February 7, 1962, he received a warning letter for violating State speed limits
although he had never been convicted of the offense.
Fourth , Respondent 's "policy," according to Gunn and Haggard , was to be lenient
with dischargees , always to investigate thoroughly before discharging a man, and to
question a man before taking disciplinary action . Yet, Burns was fired on Febru-
ary 12 without an investigation and without being questioned as to what happened.
Fifth, in both the January 26 and February 10 incidents , Kaumanns was with
Burns, yet escaped the disciplinary treatment handed out to Burns. It should be
noted in this respect that especially as to the February 10 incident , Kaumanns,
because he was at all times the driver after arriving at the Respondent's Nashville
terminal , was more culpable for what occurred.
Sixth, it was Respondent 's officials who ordered the "valuable" cargo to be left
outside in the highway parking lot, even though it was known the drivers were
not present. Furthermore , with this knowledge , Respondent's officials made no
effort to find or contact the drivers.
Respondent Counsel Rabe , in his comprehensive brief, among other contentions
argued:
No evidence was offered to substantiate any unlawful motivation for the discharge
of Burns. There is not one shred of testimony in the record to indicate support
for Burns' wild accusations that the Respondent was in collusion with .the Teamsters
Union presumably to undermine the Rebel Teamsters Union. Any person with the
commonly held knowledge of difficulties the Teamsters Union has created for em-
ployers in the trucking industry would find it difficult to imagine why a trucking
employer would not be sympathetic to a rival organization in the trucking industry-
if it was a bona fide labor organization.
However, he was not discharged for any union activity , and the evidence in this
record does not support any such conclusion . Haggard, his superior , who dis-
charged him said , "Mr. Burns was discharged for being unavailable for duty in
Nashville, Tennessee . It had nothing to do with his activities , as far as I personally
was concerned."
Burns' ultimate discharge on February 12, 1962, was for the simple but serious
violation of a company rule. Truckdrivers were required by the Respondent to
remain "on duty" with their truck outfit at all times until they were relieved from
duty by a responsible supervisor of the Company. At no time was either of the
drivers told by any supervisory representative that they were taken off duty or that
they could leave their outfit. On the contrary , they were instructed by Respondent's
Nashville supervisor , Shuford , to remain with their outfit . In direct violation of
these instructions and also in violation of the standing company rule to remain on
duty until relieved by a supervisor, the two drivers unhooked the tractor from the
trailer and went several miles away to the center of Nashville, in the tractor, to
the famous hillbilly show , "The Grand Old Opry." They were gone for at least 3
or 4 hours . In the meantime , the garage had finished the repairs on the trailer
and had notified Respondent 's Nashville Terminal of this fact and advised also that
the two drivers were not available and could not be found.
ROADWAY EXPRESS, INC. 533
Any normal person who had previously caused as much trouble as Burns would
have known that he was placing his job in jeopardy by such neglect.
The Respondent presented affidavits from its supervisory personnel in Nashville,
Tennessee, to the effect that both Burns and Kaumanns were away from their outfit,
without the supervisors having any knowledge of their whereabouts, and that the
garage had called Respondent's terminal on several occasions to say that the truck
trailer would be parked outside since the repairs were finished. The Illinois Joint
State Committee could not reach a majority decision, and in accordance with the
provisions of the labor contract, the deadlocked case was then referred to the next
higher step in the grievance procedure, consisting of the Joint Area Committee.
Conclusions
This case has been likened to an iceberg-only one-eighth of its mass exposed.
It has been bruited [sic] around the Board for a long time. The Charging Party's
charges have been lodged with the Fifteenth Region, communicated to the Attorney
General of the United States, the Secretary of Labor, officials of the Interstate
Commerce Commission, the McClellan Senate Investigating Committee, and other
Board officials, as well as to a large segment of the radio and television audience of
the metropolitan area of Chicago. Likewise, certain participants and witnesses have
been subject to criminal prosecution by the United States attorney for the district,
and by the prosecuting attorney of Cook County.
This Trial Examiner has before him the comparatively narrow issue of whether
the Respondent is quilty of illegally interfering with, restraining, and coercing the
Charging Party, Burns, as well as other employees, in the exercise of rights guaranteed
in Section 7 of the Act, and of discriminatorily discharging him in violation of
Section 8 (a) (3) and (1) of the Act.
I, as the Trial Examiner, find, on the basis of the whole record before me, that
the General Counsel has not established his burden of proof of the allegations of his
complaint by the preponderance of the credible evidence, and it will be recommended
that the complaint be dismissed in its entirety. As heretofore recited, the Respondent
discharged Burns for cause.
CONCLUSIONS OF LAW
1. The operations of Respondent Roadway Express, Inc., affect commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local Union No. 710, International Brotherhood of Teamsters, and Rebel
Teamsters Union are labor organizations within the meaning of Section 5 of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a) (1) and (3 ) of the Act.
RECOMMENDATION
In view of the foregoing findings of fact and conclusions of law, it is recommended
that the complaint be dismissed in its entirety.
APPENDIX
(Certified Mail)
MARCH 6,1963.
Mr. IRVING HERMAN , Director,
Office of Appeals,
National Labor Relations Board,
Washington, D.C.
Please be advised that this is a request for a review of Case Nos . 13-CA-5009 and
13-CB-1253-1-2-3.
You will recall that Mr. Kenneth Smith and I visited you in your office on
October 10, 1962 and it was agreed that the aforementioned cases would be reviewed
by you when the documents (so important to an intelligent appeal ) were released
by the Thirteenth Region , in the matter of Case No. 13-CA-4711. I am happy
to report that the proceedings have been terminated, the briefs have been filed, and
even though all my documents have not been returned to me , you should be able
to reach a speedy decision because all data hereinafter referred to, is now in the
hands of Trial Examiner John C. Fischer and therefore should be available for
your perusal . I will attempt to confine myself to the facts , statements made under
oath , exhibits , etc; however, I may find it necessary to digress , in order to present
a better picture to the reader.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reason for the Charges
I, William J. Burns, on or about July 9, 1962, filed charges with the Thirteenth
Region of the National Labor Relations Board alleging that the International Brother-
hood of Teamsters, the Central Motor Freight Association, the Central Conference
of Teamsters and Local 710, International Brotherhood of Teamsters, discriminated
against me by conducting grievance and/or arbitration procedures that does not
conform to the standards of fairness as required by the National Labor Relations
Board.
Statement of Facts
On January 21, 1960, I became employed as an over-the-road driver by Roadway
Express Inc. At the time that I applied for employment, I also submitted a typed
resume of my past experience. Because of my experience as a Director of Safety
and Personnel, I was requested by Mr. Del Knight (a Safety Supervisor, employed
by Roadway) to assume the position of Driver Supervisor rather than that of driver.
This position was refused because of relocation requirements and inadequate salary.
Within two months after being hired, I found that Roadway not only deliberately
violated and/or positively refused to rectify the violations of the existing agreement
but also threatened the drivers with a lower pay scale by confining them to the
Chicago-Milwaukee run. This maneuver had the affect of quieting the so-called
radicals and therefore no grievances were filed; this, according to L. K. Johnson
(Chicago Terminal Manager) made for "one big happy family." Numerous com-
plaints by me and other drivers to the Union Steward (Firlotte) failed to produce
any results and therefore, petitions requesting the Local Union to permit us to elect
another Steward, was denied us by the Union. Numerous meetings with the Union
Business Agent (John Phalen) also failed to correct the contract violations. My
Union activities soon became known to my employer, who immediately set the stage
for my future discharge by using the well-known gimmick of the "warning letter".
The warning letter "tool" is a favored weapon used by trucking companies to elimi-
nate "radicals" from their employ.
I received many warning letters on the slightest pretext; in fact, more than any
other driver (TR. 39). I also received warning letters because I refused to violate
the contract (G.C. Exh. 22, Art. xx). AND THE COMPANY RULES!!! (The
Company rule states "Federal, State and City laws, ordinances and regulations, and
the Company safety rules, are to be observed at all times.) (Tr. 122 and 123:
G.C. Exh. 12; R. Exh 14, item 2). Also Tr. 159 and 160; R. Exh. 14, item 21.
In May 1960, I circulated a petition which requested (among other things) the
International Brotherhood to install another driver and I on the contract negotiating
committee. The following answer was received by me on May 19, 1960
DEAR SIR AND BROTHER I have your letter of May 5th in which you bring to
my notice that there is no mention of your request that you and Mr. Balok be
placed on the contract negotiating committee. Please be informed that this com-
mittee is represented by delegates from each of the Local Unions whose members
are covered by the over-the-road contracts.
There is no way we can stop this democratic procedure and arbitrarily place either
of you two on this important committee nor have we the slightest desire to do so.
Please understand and understand clearly that the current over-the-road contract
is not a "sweetheart" contract, nor has any previous over-the-road agreement been
a "sweetheart" contract to my knowledge and I might add, that you have a lot of
guts to cast such a serious reflection on the hundreds of serious minded members and
officers of the International Union in the fashion in which you do.
With that comment having been included in your letter, it is a question whether
Or not you are entitled to a reply.
(Signed) HAROLD J. GIBBONS,
Executive Assistant to the General President.
Apparently Mr. Gibbons was'nt aware?? that one of his "serious minded officer
members" (Thomas Keegan. V.P. of Local 710) was extorting money from an
employe in order to assure the employer that he had a sweetheart contract (Mr.
Keegan, was recently convicted of this offense and sentenced to five years in a
Federal Pen). Mr Keegan also was on the grievance board and heard at least one
of my grievances . I lost.
In January 1961 when I found that a "change of operations committee" (headed
by Hoffa ) was granting employers a change of operations-which caused quite a
few road drivers to lose their homes-without the consent and knowledge of the
employees, I decided to request a copy of all agreements that pertaine to my place
of employment. My request was not complied with and Mr. John T. O'Brien
ROADWAY EXPRESS, INC. 535
(Secretary -Treasurer of Local 710) made certain that I became the subject of
derision at a general membership meeting which was held in February 1961.
Because of the failure of my B.A. and Steward to process my grievances, I filed
a formal grievance with the principal officer of my Local , J. T. O'Brien . ( G.C. Exh.
7; R. Exh . 14, items 13, 14, and 15 ). O'Brien not only failed and/or refused to
process this grievance , he once again made me the object of scorn and derision by
reading into the minutes (and to the members that attended the April 1961 member-
ship meeting ) the entire letter of grievance and also stated that "it is this kind of
a nut ( Burns ) that is helping Uncle Sam to put the nails in Hoffa's coffin". THE
GRIEVANCE WAS NEVER PROCESSED'!!
The Teamster convention of 1961, was the final straw.
I informed my attorney that I would like to file suit in order to set aside the
"election" of J. R. Hoffa. Somehow , this information became known to the press.
The very next morning , I awoke to find that I was "the leader of 4000 rebel team-
sters " Of course , I had the perogative of accepting or rejecting this "leadership."
A deluge of Phone calls from disgruntled teamsters was the deciding factor that
caused me to accept this "leadership ." I felt then, as I do now, that the Teamsters
under the leadership of Hoffa, is detrimental to our Country . Within a fortnight,
I became internationally known as The Rebel Teamster . This notoriety infuriated
the officials of the Teamsters and of Roadway Express.
On August 10, 1961 , Johnson discharged me because I refused to operate a
vehicle which was in violation of the contract , Company rules , Local, State and
Federal regulations . This action was noted by the press but that didn't stop Road-
way from further violating the law. August 14th (four days later ) was the date
that the State of Illinois caught Roadway trucks ( 17 of them ) in violation of State
law. How's that for proving a point!!!!
On August 29, 1961 , the grievance committee ruled that I be reinstated. This
action came as no surprise to me. Even the most crooked committee could not
have ruled otherwise-in view of evidence presented . (Johnson also admitted that
the truck was overloadedt!!) Imagine my surprise when , on the following day,
I received a warning letter for the same offense of which I had been exonerated
AND I HAD NOT REPORTED BACK TO WORK AS YET !!! When I asked
my boss ( Haggard ) about this , I was informed by him that the committee ordered
it John Phalen (my B A ) also agreed with Haggard on this. It becomes very
obvious that the committee was aware of this fact when they upheld the claim of
the Co even though the same board had previously judged me as being NOT
GUILTY of the violation . Phalen sent me a certified letter telling me that I must
be present at this hearing or forfeit my claim. This amazed me because I had
NOT filed a claim and Phalen has not (and cannot) produce such a claim even
though he has been requested to do so. (Joint State committee Transcript of hear-
ing held on 2/28/62-Page 97) Furthermore, Phalen illegally presented ( and the
committee accepted ) this "claim." G .C. Exh. 21 , Art. 10 clearly states that "Appeal
from discharge , suspension or warning notice must be taken with ten (10) days
by written notice, and a decision reached within ( 30) days from the date of dis-
charge , suspension or warning notice." Phalen received a CARBON COPY of
my protest on September 11, 1961, ( Certified Mail No. 878768709 ) THIRTEEN
days after the date of the warning letter and THIRTY-THREE days after the
alleged violation! ! PHALEN WAS IN SUCH A HURRY TO FRAME ME,
THAT HE OVERLOOKED THIS FACT!'! This is also true of the committee.
It must also be remembered that the activities of the Rebel Teamsters and/or I,
were at a fevered pitch at this time . (TR 166 and 167) (G C Exh . 2) (G C Exh.
37). Upon receiving the pamphlet of the "Loyalty Committee " on or about 9/1/61,
I knew that what I had suspected all along, was true-my employer and Union were
in collusion . Knowing this , I did not file a grievance on the warning letters of 8/29
and 9/7/61 because I felt that they would make more mistakes which would give me
a chance to prove this collusion. I didn't have very long to wait for this chance!!
On 9/26/61 the committee upheld the Co. on both letters, even though I presented
a Doctor certificate ( G C.Exh . 26: Tr. 181-184 ) and as Haggard has testified
(Tr. 37-38)
Ironically, a membership meeting was held on the following Sunday which proved
to be very stormy . O'Brien stated that he had "my record , from the cradle to
the grave" and then proceeded to ridicule me and my efforts , for at least 2 hours.
Messers Joyce, Janopoulos and Keegan also stated that they were members of the
"Loyalty Committees" and "damned proud of it ." Fortunately for me , the Chicago
Police Labor Detail was on hand. Also, Walter Flack (Secretary-Treasurer of the
Rebel Teamster Union ) on September 11, 1961, had sworn out an assault warrant
on Janopolous.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The unusual decision and/or award of the 11 /28/61 committee hearing should
not go unnoticed. (R. 14; Item 33.) (G.C.Exh. 27) The grievance in question
is marked #5. The Co. admitted that McMasters was NOT required to produce
a Doctor's Certificate. The Co. ALSO ADMITTED THAT I HAD BEEN OFF
WORK DUE TO SICKNESS FROM 9/5/61 to 9/11/61. THE COMMITTEE
AWARDED ME THREE DAY'S PAY (9th, 10th and 11th) because (as Pride testi-
fied) THE COMPANY HAD NEVER POSTED NOTICE CONCERNING THIS
MATTER!!!!!!! (Tr. 98) This proves beyond a shadow of a doubt that the warn-
ing letter of 9/7/61 was fictitious and pretextual.
The December election (1961) was not without it's tense moments. I, as campaign
manager of the Reform Slate was called (by some officers and agents of 710-
including Janopolous and Joyce) a "molester of small children, rape artist and a
dope addict." These remarks and the "Loyalty" pamphlet has resulted in a civil
suit being filed in the Circuit Court of Cook County #61 Cir 16777. We appealed
the results of the election to the Bureau of Labor Management Reports. For the
following six months, O'Brien done nothing except persecute the "Rebels" at every
turn and membership meeting.
That the warning letter "bit" was being used as a tool to discharge me not only
was apparent, but it was to become very obvious.
On 1/29/62 I received THREE warnings. On 2/7/62 I received THREE
WARNING LETTERS IN ONE!!! (I believe that this establishes some sort of
record.) On 2/12/62, I received a discharge letter, a phone call and a telegram.
(They apparently wanted me to be very sure that I was fired-God bless their pin-
pointed heads.)
On February 28, 1962 I was directed to report for hearing "or forfeit my claim."
Leo Day, Kenneth Smith, Ernest Kaumanns and I arrived at the Hotel for the
hearing, on this date. All of us (except Kaumanns) were known to be "rebels"
and/or Reform Slate candidates. All of us (except Smith) were to be "heard" by
the Joint STATE Committee on discharges from our employment. Smith has
testified (Tr. 908 and 909) that BEFORE the hearing started, Kaumanns and
Janopolous told him (Smith) that "Burns has lost his case." (Smith, whose credi-
bility was never denied or contested in Case No. 13-CB-1181 is now back at work
and recently was required to file another discrimination and 8a4 charge against his
employer. He also made a settlement agreement (by direction of the thirteenth
Region) against Local 710.)
I was being "heard" by a committee that had been publicly denounced by the
Rebel Teamster Union. On this board sat two union "representatives" against whom
I had previously filed a Libel and Slander suit in civil court. (Joyce and
Janopolous).
The transcript of this hearing is very interesting. As Pride testified (Tr. 639),
the committee is composed of three employer and three union representatives. The
Tr. shows that a FOURTH union member (Pat Doody-Page 100) also had a
part in this show!!! This mistake on the the part of Doody, did not go unnoticed
by Pride. Page 88 of the Tr. shows (at my insistence) the names of the members.
Page 134 also shows Pride reading the names into the record. This unusual cir-
cumstance does not appear in other J.S.C. Tr's that I have been able to examine.
The animosity shown to me by Joyce and Janopolous throughout the entire hearing,
is so evident that even a blind man can see it. The contract provides (and Pride
so testified) (Tr. 655) that the Union shall attempt to settle all grievances with the
employer before appealing to the committee. However, Phalen states (J.S.C. Tr.
Page 92 and 93) and I Quote, "Mr. Phalen: All the information I have, as I see
it now, at the bottom of a protest of letter in regard to their speed violations, it
says; "Protesting my discharge as of this date." If Phalen had talked to the employer
(as required) wouldn't he have more information??? Phalen, being a liar (and
a collaborater in this scheme) DID have more information; furnished by Kaumanns
and I. on the day after the discharge. The notarized statements of Bentley and
Saunders (J.S.C. Tr. Pages 103-108) outright LIES when they were questioned by
Mr. Graf (Counsel for the General Counsel). (G.C. Brief Pages 19-21)
At no time during the hearing, was I permitted to examine the documents offered
into evidence by the Respondent. Nor did my "representative" (Phalen) request
an examination.
The committee also upheld the warning letter (R. Exh 39) concerning speeding,
EVEN THOUGH I HAD NOT BEEN TRIED, OR CONVICTED, OF THE
ALLEGED VIOLATION'!'
Also, the Co. did not produce ONE witness from Nashville, Tenn. to testify in
their behalf. This is also true of the Joint AREA Committee hearing.
ROADWAY EXPRESS, INC. 537
Kaumanns was the next person to be heard and he was EXONERATED; even
though , at all times material, was in charge of the truck . (J.S.C. Tr . 96) To con-
tinue further , concerning this phony hearing, would be a waste of time.
After the hearing, Leo Day and Smith , told me that Mr. William Isbell, of the
Central Conference of Teamsters , so requested a meeting with us "in order to
straighten things out." (Isbell had been present at my hearing .) We met in the
bar-room of the Hotel. He told us that HE had deadlocked my case. ( Knowing
that Isbell is one of Hoffa's right-hand men, I sincerely believe that he DID.) He
stated that the Teamsters would "make it worth-our-while if we would cease our
activities ." We refused his offer. All of us lost our cases.
The Joint AREA committee hearing, CHAIRED BY JOYCE ( and dominated by
Hoffa ) was another farce which is aptly explained in Graf's Brief. (The docu-
ments referred to in G.C. Brief, Page 28, were never seen by me but they were
read to me by the Court Reporter .) Tr. P. 114 and 115.
Other Facts Which Should Be Considered
1. All of the Rebel Teamster Union members and the Reform Slate candidates
have been fired from their jobs.
2. Miss Forrest , was THREATENED WITH DEATH if she testified in my
behalf. (See Transcript ) Threat was reported to F.B .I. by the Thirteenth Region.
3. G.C. Exh . 7, was NOT referred to the committee , as I requested.
4. G.C. Exh . 16 is in the form of a letter to the COMPANY , not to the Union.
It was (and is ) a protest-NOT A FORMAL GRIEVANCE . It was NOT treated
as a formal grievance either by the Company or the Union , until I filed a FORMAL
GRIEVANCE (R. Exh 14; Item 8)
Please notice that G.C. 16 ., was written BEFORE the Rebel activities were begun
and that Attorney for the respondent CONVENIENTLY AND SPECIFICALLY
overlooks this letter!!'
5. G.C. Exh. 39 is EXACTLY the same ( Except for the date ) as G.C . 16, but in
this instance , the Company , Union and the Committee , very willing and enthusiasti-
cally, treats this as a FORMAL GRIEVANCE!!! Isn't strange that this takes place
AFTER Rebel activities have begun???
6. What sinister reason motivated Respondent to request (by subpoena-which
was issued but NOT upheld by the Board ) the APPLICATIONS for membership
in the R.T.U.??
7. Why does respondent infer (in his brief-page 5 ) that I did not produce
"records of any kind" when he PERSONALLY introduced into the record, RE-
SPONDENTS EXHIBITS 6, 7, 8, and 9, which are the financial and membership
reports that are on file with the U S. Dept . of labor?
8. Why does he make an issue ( R. Brief, page 4) of the fact that "Roadway
has trouble with the income tax people " but failed to put ANYONE on the wit-
ness stand in order to disprove this allegation?? (For THEIR information, I have
filed the charge with the I .R S. and I am willing and able to prove the charge.)
9. He attempts to enlarge my "criminal record" when the record is replete with
uncontradited testimony that they Roadway operates their equipment in complete
defiance of the law.
10. He states that a confessed liar (Kaumanns ) is telling the truth but fails to
put HIS witness on the stand.
11. He hastens to recite the Denver -Chicago Trucking Co. (where the R.TU.
organized NINETY percent of the Over-The-Road drivers within TWO DAYS time
but we stymied by the contract bar) and Spielberg cases (-where a FAIR and
regular hearing is provided-) but he fails to mention that Roadway has been
involved in TWO cases where COLLUSION WITH THE TEAMSTERS HAS BEEN
PROVEN. ( 108 NLRB (L(1954 )( 119 NLRB 1957)-Enfd NLRB C.A. 4 (1958)
In conclusion , it might come as quite a shock to Respondent 's Attorney to learn
that the witness (WITNESS??' ) that he thinks highly of (Kaumanns) was recently
involved in a very much PROTECTED grade-crossing accident which cost his
client a ton of money when the train cut his trailer in half and spread the "valuable
cargo" along the right-of-way . Roadway, supposedly had an air-tight case against
Kaumanns and he was fired but the FAIR Joint State Committee REINSTATED
Kaumanns Was this the REWARD that the "Committee " owed Kaumanns for
testifying against Burns'??
1369 N . HUDSON AVE., CHICAGO 10, ILLINOIS.
cc: U.S . Attorney General,
Hon. John C. Fischer.
WILLIAM J. BURNS,
(S) William J . Burns.