System 99

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 689 (N.L.R.B. 1969)

SYSTEM 99 D/B/A INTERLINES BLANKENSHIP MOTOR EXPRESS
System 99 , a California Corporation (previously
Gilardy, Preston & Dore D/B/A Interlines
Blankenship Motor Express) and Dean K . Buckley,
Line Drivers Local No. 468 International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America and Dean
K. Buckley. Cases 20-CA-4635 and 20-CB-1722
June 30, 1969
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On August 14, 1968, Trial Examiner James R.
Hemingway issued his decision in the above-entitled
proceeding, finding that Respondents had engaged in
and were engaging in certain unfair labor practices
alleged in the complaint and recommending that
they cease and desist -therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondents and
the General Counsel filed exceptions to the Decision
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and finds merit in
Respondents' exceptions. Accordingly, the Board
adopts only those findings, conclusions, and
recommendations of the Trial Examiner consistent
with this Decision and Order.
The complaint alleged and the Trial Examiner
found that Buckley, the Charging Party, was
discriminatorily discharged by Respondent
Company in violation of Section 8(a)(3) and (1) of
the Act, and that such discharge was caused by the
Union in violation of Section 8(b)(2) and 8(b)(1)(A)
of the Act. We are not satisfied that the General
Counsel has established by a preponderance of the
evidence that Buckley's employment was terminated
in violation of the Act.
Respondent Company, engaged in the business of
intrastate trucking in the State of California, has a
contract with two Teamster Union locals. A
contract with Local 70 covers local drivers, and a
contract with Respondent Local 468 covers
over-the-road, or line, drivers. We are concerned
here only with the line driving aspect of
Respondent's operations.
It is the Respondent Company's practice to
classify its regular employees who are line drivers as
either "Regular bid" or "extra board." Regular bid
drivers have greater seniority and bid on the run of
689
their choice. They regularly drive that run. Extra
board drivers receive assignments from day to day
and work only if there is work available. When
there is a shortage of work, the extra board drivers
are rotated in order of their seniority. If the
earnings of the extra board drivers fall below a
certain level, the Respondent Union is entitled under
its contract to require the employer to reduce the
number of men on the extra board. The extra board
drivers are considered to be employed, and are
therefore not entitled to use the union hiring hall
when they are not working.
Respondent Company also maintains a list of
men who have indicated their availability and desire
to work for the Company. These men have no
permanent relationship with any trucking company
and are employed on a trip basis when the available
work exceeds the capacity of the extra board
drivers. Respondent Company refers to them as
"casual drivers." Casual drivers are terminated after
each trip, and gain no seniority. There is no
obligation on the part of the Company to call any
individual on the casual list or for the individual
called to accept a particular trip. Respondent
Company attempts to maintain a policy of giving
first preference to those casuals its considers the
best drivers who would be good prospects for
permanent employment. It also gives preference to
new drivers in an effort to evaluate their ability
against the casual drivers already on Respondent
Company's list. The list of casual drivers is
maintained through use of the union hiring hall,
personal recommendations of regular drivers, or
through an individual seeking his own employment.
Normally, a person who proves to be a satisfactory
casual driver is offered regular employment as an
extra board driver when a vacancy occurs.
The Company has a contract with Respondent
Union which provides that:
When the Employer needs additional men he shall
give the local Union equal opportunity with all
other sources to provide suitable applicants, but
the Employer shall not be required to hire those
referred by the Local Union.
In July 1967, Buckley sought a job with
Respondent Company as a supervisor at its San
Jose terminal. He spoke with the Emeryville
terminal manager, Tudisco, and was informed that
the San Jose job had been filled. A few days later,
Buckley contacted Sorenson, dispatcher at
Emeryville, and asked for employment as a casual
driver. Sorenson then asked Buckley if he was a
member of "the union" and Buckley, a member of
Local 70, replied that he was. Sorensen then added
Buckley's name to the list of casual drivers.
Buckley was employed by Respondent as a casual
driver on July 13, 22, 29, and August 1, 1967. After
each trip he was issued a termination slip, a copy of
which was forwarded to the Respondent Union as
was customary.
177 NLRB No. 105
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the latter part of July 1967, Buckley
informed Sorensen that he was interested in steady
employment. When Buckley reported to work to
make the trip of August 1, Sorensen's assistant,
Gardner, inquired as to whether Buckley was still
interested in steady employment, and upon receiving
an affirmative response, gave Buckley an application
blank to be completed and returned. Gardner
indicated Buckley would be called to work the
following day, at which time he would return the
completed application.
On the afternoon of August 2, 1967, Manny
Joseph, president of Respondent Local 468, having
seen Buckley's termination slip, telephoned Tudisco.
Joseph informed Tudisco that he had union men out
of work, Buckley was not a member of the Union,
and the Company's contract with the Union
provided the Union with an "equal opportunity with
all other sources to provide suitable applicants."
Tudisco was unaware that the Company was
employing nonunion drivers and was under the
impression that Buckely was a member of Local
468. After being informed Buckley was not a
member of Local 468, Tudisco agreed to accept
names from the Union's out-of-work list, which
were added to the list of casual drivers for the
Company. Some men were used, some were
unavailable, and some, previously known to the
Company, were considered unsatisfactory and were
not called.
Respondent Company did not use any casual
drivers from August 1 through August 7, 1967.
When Buckley did not receive a call to report to
work on August 2 as he had expected, he telephoned
Gardner to ask if things were slow. According to
Buckley, Gardner informed him that Joseph had
told the Respondent that Buckley was not a member
of Local 468, and therefore he could not be used.'
Buckley filed a charge with the Board on August
3, 1967, and did not thereafter complete and return
his application for employment to Respondent
Company.
In late August 1967, Respondent Company
received information indicating that Buckley was a
poor driver. Two tachograph records of Buckley's
showed that he had caused the truck motor to
exceed the proper number of revolutions and had
driven the truck in excess of the maximum speed
limit.
On November 10, 1967, Buckley notified
Respondent Company that he was again available
for employment, and by a letter of the same date
Sorensen informed Buckley that his name was being
added "to the list of drivers whom we call for casual
employment as needed."
Gardner was not called as a witness Both Respondents objected to any
testimony concerning what he said There is also serious question as to
whether Gardner is a supervisor and as to whether anything he said would
bind Respondent Company . Therefore, we, like the Trial Exammer,do not
rely on Gardner's statements
In the latter part of November 1967, Respondent
Company received a Department of Motor Vehicles
report which indicated Buckley had four speeding
violations from August 3, 1967, to August 9, 1967.
Respondent did not thereafter employ Buckley as a
driver.
Tudisco testified that no specific instructions were
given not to hire Buckley, and at least two attempts
had been made to contact Buckley, one on or about
August 15 or 16 and again on August 29, 1967.
Buckley was not home on either occasion, but on
August 29 a message was left with his wife. When
Buckley returned the call, he informed Sorensen
that he was employed as a working supervisor at
night for Clipper Carloading Company and would
be unable to work for Respondent Company except
weekends.
Despite the fact that the Trial Examiner did not
discredit Tudisco's testimony, and despite the fact
that he found that with one possible exception, no
weekend work would have been available to Buckley
after August 29, he gave the testimony "no weight
because it is too vague, because it is not clear that a
specific job would have been offered . . . " We
reach the opposite conclusion, Respondent's list of
casual drivers employed during the month of August
1967 shows that casual drivers were used on August
15, 16, and 29. Absent any other explanation, we
can see no purpose for calling an individual listed as
a casual driver, at a time during which casual
drivers are needed, other than to offer employment
to the individual called.
Under all the facts presented, we find the
allegation that Respondent Company
discriminatorily discharged Buckley in violation of
Section 8(a)(3) and (1) of the Act because of his
lack of membership in Local 468 has not been
proven by a preponderance of the evidence. We
therefore dismiss the charge as to Respondent
Company.
The remaining issue to be determined is whether
or not the Respondent Union attempted to cause the
Company to discriminate against Buckley within the
meaning of Section 8(b)(2) and 8(b)(1)(A) of the
Act.
At this point, the purpose of Joseph's phone call
to Tudisco becomes important. If the call was made
to seek the discharge of a nonunion man so that
members of the union could be employed in his
place, the Act has been violated.
It is established from the record that the
Company had not called the union hiring hall for a
list of drivers for some time. The Union alleges it
was only seeking to enforce its contract with the
Company which allows it an "equal opportunity
with all other sources to provide suitable
applicants."
The Trial Examiner finds this argument
unsupportable on the evidence and concludes "that
Local 468 attempted to cause, and did cause
Interlines to cease using Buckley as a casual driver
SYSTEM 99 D/B /A INTERLINES BLANKENSHIP MOTOR EXPRESS 691
because he was not a member of the Union."
The Trial Examiner supports his finding by
stating that although the contract only gave the
Union the right to furnish names of applicants,
Joseph 'was not satisfied with merely furnishing
names because he "complained of having members
out of0, work while Interlines was employing
non-members." The Trial Examiner further finds
that "Joseph appears to have spoken in a tone of
voice which conveyed his purpose to require the
employment of members of Local 468 as casual
drivers in preference to non-members." We are not
convinced.
The record indicates that the list of applicants was
not requested by Tudisco until after Joseph
complained of having members out of work. There
is no evidence in the record that Joseph was
requesting Tudisco to use union members to the
exclusion of Buckley based on the testimony of
Tudisco, to whom the call was made, and Union
Business Agent Vercessi, who was in the union
office when Joseph called Tudisco. Joseph was not
called upon to testify at the hearing.
Since Joseph did not testify at the hearing, and
the Trial Examiner did not overhear the
conversation between Joseph and Tudisco, we
cannot rely on the tone of voice used by Joseph as a
basis for finding that Joseph intended that union
members be used to the exclusion of, or even in
preference to, nonunion employees. Neither can we
overlook the fact that the testimony of Tudisco in
relating the events after the phone call, indicates
otherwise. When asked if he instructed Gardner not
to use Buckley anymore, Tudisco replied, "I didn't
instruct him that way. That was not the purpose of
Manny Joseph's call."
The plain meaning of Joseph's words was that he
wanted only the equal opportunity the concededly
valid contract gave him. That being so, we shall
dismiss the complaint as to the Union.
ORDER
It is hereby ordered that the complaint in the
instant case be, and the same hereby is, dismissed in
its entitety as to both Respondents.
TRIAL EXAMINER'S DECISION
cause, and had caused, Interlines to refuse to hire the
Charging Party, Buckley, because of his lack of
membership in Local 468, and that Interlines had, on
about August 2, 1967, refused to hire said Buckley
because of his lack of membership in that Union. On
October 27, 1967, Local 468 filed an answer denying the
alleged unfair labor practices. On April 22, 1968,
Interlines filed what was entitled, "First Amended Answer
to Complaint."'
Pursuant to notice, a hearing was held at San
Francisco, California, on May 22 and 23, 1968, before
me. At the opening of the hearing, the Union orally
amended its answer to cover the allegations of the
amendment to the complaint. At the close of the hearing,
Interlines moved to strike all testimony with regard to
conversations between Buckley and Donald Gardner (the
latter having been alleged in the amendment to the
complaint to be an agent and supervisor of Interlines) on
the ground that Gardner had not been proved to be an
agent and supervisor of Interlines. Ruling was reserved.
The motion is now denied for reasons hereinafter stated.
On July 2, 1968, I received from Interlines a motion to
reopen the record to permit the introduction of additional
documentary evidence. The General Counsel on July 10,
1968, filed an opposition to Interlines' motion, and on
July 15, 1968, Interlines' motion was denied.
Briefs were received from each of the parties hereto on
July 12, 1968.
From my observation of the witnesses and upon the
entire record in the case, I make the following:
Findings of Fact
1. THE BUSINESS OF INTERLINES (SYSTEM 99)
At the time of the occurrences herein set out,
Respondent Interlines was a partnership with an office
and principal place of business located at Emeryville,
California, where it has been engaged in trucking
operations with terminal facilities throughout the State of
California. It is now a California corporation known as
System 99.
During the year preceding the issuance of the
complaint, Interlines, in the course and conduct of its
business operations, performed for customers outside the
State of California services valued in excess of $50,000.
During the same period of time, Interlines performed
services for the United States Military Services valued in
excess of $400,000, admittedly having a substantial impact
on the national defense.
Interlines admits the jurisdictional allegations of the
complaint. I find that the Board has jurisdiction and that
it will effectuate the policies of the Act to assert
jurisdiction.
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: Upon a
charge filed on August 3, 1967, by Dean K. Buckley, an
individual, against the Respondent employer, named
above in the caption , herein called Interlines ,' alleging
violations of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended , 29 U.S.C. 151 et seq., herein
called the Act, and upon a charge filed the same day by
Buckley against the Respondent Union named above in
the caption, herein called interchangeably the Union and
Local 468, alleging violations of Section 8(b)(1)(A) and (2)
of the Act, a complaint issued on October 18, 1967, which
alleged in substance that Local 468 had attempted to
II. THE LABOR ORGANIZATION AND ITS CONTRACT
Local 468, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is composed exclusively of line drivers, as
distinguished from local truckdrivers. Local 468 and
'Counsel for Interlines at the hearing represented that the name of the
company had recently been changed to System 99, which he stated is a
corporation By letter dated July 18, 1968 , I requested that the caption be
corrected . The General Counsel , by letter to the undersigned , dated July
30, 1968 , agreed to this change . In the hearing , System 99 was usually
referred to as Interlines and this will most frequently be used herein.
'The formal exhibits do not include any earlier answer.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interlines are parties to the National Master Freight
Agreement,' having a term from April 1, 1967, to March
31, 1970. This contract contains a valid union shop clause
but no exclusive hiring hall clause . Instead of the latter
type of clause , the contract contains a provision which
reads:
When the Employer needs additional' men he shall give
the Local Union equal opportunity with. all other
sources to provide suitable applicants , but the Employer
shall not be required to hire those referred by the Local
Union.
Local 468 maintains two out-of-work lists - an A list
for members , and a B list for nonmembers . When an
employer requests names of applicants to put on his list,
Local 468 reads a number of names from the A list so
long as there are any names on that list before it furnishes
names from the B list.
The contract provides for a 30-day trial period for
drivers, after which if retained, the driver is placed at the
bottom of the regular seniority list. A provision of the
contract covers seasonal , casual and part-time employees.
The facts here are concerned only with the second of these
three classes of non-regular employees . The contract
explains that "casual or part-time" are terms intended to
cover situations such as replacements for absenteeism and
vacations.
III. THE UNFAIR LABOR PRACTICES
A. Employment Practices of Interlines
Interlines employs about 70 local drivers and 21 regular
line drivers . The latter are divided into two classes -
regular bid drivers and extra-board drivers. Bid drivers,
because of their greater seniority are entitled to bid for
the run of their choice, and their work is steady and
remunerative . The drivers on the extra board have less
seniority and take assignments as work is available. An
employer in the trucking business would prefer to have a
long list of extra-board drivers so that one would always
be on hand when needed , but a long list of extra-board
drivers often results in less work per man, and this
situation creates dissatisfaction among the men. These
men cannot , when not assigned a run , sign up on their
union's out-of-work list, because they are considered
employed. However, under the contract, if the weekly
earnings of the drivers on the extra board falls to a certain
level, the local union may require the employer to reduce
the number of men on the extra board. To avoid a low
average of earnings for extra-board drivers, Interlines
carries a limited number of extra-board drivers and takes
care of periodic fluctuations in business by hiring casual
drivers when additional drivers are needed.
To be assured of getting a driver on short notice,
Interlines maintains a list of casual drivers that it wishes
to use . In August 1967 it had between 14 and 20 names
on that list. In that month, however, Interlines used only
seven casual drivers .' Names for this list were obtained by
Interlines either by calling Local 468, by taking names of
men calling in on their own behalf, or by references from
other drivers or other employers . Casual drivers have no
seniority and are not rotated . Interlines first calls for work
'The title states that the agreement covers over-the-road and local
cartage employees of private, common, contract, and local cartage carriers.
The employer signing the agreement, the National Over-thc-Road and City
Cartage Policy and Negotiating Committee, and the signing local are the
described as parties thereto.
casual drivers whom it has found to be good drivers, who
cooperate with the dispatcher and with other personnel,
and who appear likely to be drivers that Interlines would
like to hire permanently when it fills vacancies in its lists
of permanent drivers . If the best drivers are unavailable or
are already assigned a run , the dispatcher will call others
who are less highly regarded.
B. Employment History of Buckley
Dean Buckley is a member of Local 70 of the
Teamsters . Interlines obtains local drivers from that local.
Early in July 1967, Buckley heard that Interlines was
looking for a "supervisor" for its San Jose terminal.'
Buckley inquired about this at the Emeryville terminal
where he spoke with Joseph Tudisco , the terminal
manager . Tudisco told Buckley that the San Jose job had
been filled . A few days later, Buckley telephoned Chris
Sorensen (Central Line Dispatcher and a supervisor within
the meaning of the Act) of Interlines in Emeryville and
said he was interested in employment as a casual driver.
Sorensen asked if he was a member of "the Union" and
Buckley said he was . Whether or not Sorensen took it for
granted that "the Union" meant Local 468 or whether
Sorenson was only interested in knowing whether Buckley
had a union card is not established since Sorensen did not
testify . Tudisco sought to make it appear that Sorensen
was asking if Buckley was a member of Local 468 since
that would show that Buckley had experience as a line
driver . However, Sorensen could have learned of
Buckley's experience from the latter ' s answer to
Sorensen's next question , which was where Buckley had
worked (as a line driver); Buckley named two places
where he had been so employed . Sorensen then said he
would add Buckley ' s name to the list of casuals.
On July 13, 1967, Don Gardner, the dispatcher at
Interlines ' Emeryville terminal , telephoned Buckley at 1
a.m. and said he needed a driver for a trip to Fresno,
where Buckley would have to lay over, and asked if
Buckley was interested . Buckley said he was and he
reported for work at 3 a.m. When he arrived, Sorensen
and Gardner introduced themselves.' They asked for his
driver' s license and his ICC card. Buckley produced these,
and Sorensen made photo copies of them . Gardner then
told Buckley that the trip was via the San Jose terminal
and gave Buckley written instructions. When Buckley
returned from his trip to Fresno , Sorensen and Gardner
thanked him , told him that his check would be mailed to
him, gave him a termination slip (customary after each
employment of a casual because otherwise the driver
would get seniority after 30 days whether or not he
worked) and told him that they would call him again. A
copy of each termination slip is sent by Interlines to Local
468 as a matter of routine . This qualifies the driver for
registration on the out-of-work list.
On July 22, 1967,' Gardner telephoned Buckley and
told him he had a trip to Redding , California , and asked
if he would like to take it . Buckley agreed and made the
trip. Again, on July 29, 1967, Gardner called Buckley for
another trip to Redding and Buckley took it.
'One of the 7 was used 11 times; the others were called, respectively, 6,
times, 5 times, 4 times, 3 times, 2, and I
'There is no explanation of this classification
'Sorensen's normal hours were from 3 p.m. to about midnight.
'In each instance of Buckley 's employment, the Respondent 's records
show it as one day earlier than that which Buckley gave in his testimony I
infer that Interlines' records start in the evening of the date shown and run
into the next morning without change of date.
SYSTEM 99 D/B/A INTERLINES BLANKENSHIP MOTOR EXPRESS
During the latter part of July, Buckley told Sorensen
that he : was interested in steady employment . Sorensen
told him that if a job opened up he would consider
Buckley,
On August 1, 1967, Gardner telephoned Buckley to
take another trip to Redding , this time by way of
Sacramento. When Buckley arrived at the dispatch office,
Gardner was alone , because Sorensen was off sick.
Gardner told Buckley that Interlines was going to add a
couple of men to the extra board and asked if he was still
interested in steady employment . Buckley said that he
was. Gardner handed Buckley an application blank and
told him to fill it out and return it on the next night when
Gardner would call him to work . Buckley made the trip to
Redding on August 1 but did not fill out the application
blank or work thereafter for the reason set forth herein
below.
On the afternoon of August 2, 1967, Manny Joseph,
then president of Local 468, having seen Buckley's
termination slip, telephoned Joseph Tudisco , Interlines'
terminal, manager . Tudisco testified that the purpose of
Joseph's call was to complain that Interlines was not using
members of Local 468 and he testified that Joseph was
upset because he had union members who were out of
work and Interlines was hiring men who were not
members of Local 468.' Tudisco said he did not think that
was so, and Joseph (who had the termination slips of
Buckley and Dare before him) said , "Don't tell me you
haven ' t been using any." Tudisco asked , "Who are you
talking about?" Joseph named Buckley and a man named
Dare . Joseph asked Tudisco how long it was since he had
obtained any names from Local 468 and called Tudisco's
attention to the portion of the contract which obliged the
employer to give the Union equal opportunity to provide
suitable applicants. Tudisco told Joseph to have his
secretary read a few names off the out-of-work list.
Joseph gave his secretary the A list (union members) to
read from.
Counsel for the General Counsel asked Tudisco if he
had instructed Gardner or Sorensen , after Joseph's call,
not to hire Buckley again as a casual until he had been
cleared by the Union. Tudisco replied : "Not just that way,
it was not that specific . I said that Mr. Joseph called and
complained of the fact that we were using casuals without
calling the hall, and there were a couple of drivers, mainly
two, Mr . Buckley is one, and a man by the name of Dare
is the other , and he said that we have men out of work
and you know the contract , according to the contract you
are supposed to give us an equal opportunity to provide
help. We have guys out of work, we want you to call the
hall.' I told Mr . Gardner this, and I said, `I thought you
told me Mr. Buckley was a member of 468, because
Manny Joseph said he was not.' "10 Tudisco gave Gardner
'The findings herein as to Joseph 's conversation with Tudisco and the
latter's subsequent action are based primarily on testimony of Tudisco
given when he was called as an adverse witness by the General Counsel
and on corroborative evidence given by Louis Vercessi , the Union's
business agent who overheard Joseph 's side of the conversation. No
explanation was offered by the Union for its failure to call Joseph as a
witness to relate his conversation with Tudisco , himself, and I infer that
Local 468 feared a revelation that might have been made if Joseph
testified . Because of errors in the transcript when Tudisco was testifying on
direct examination for Interlines (at p. 245 ), 1 have not based my findings
on certain disputed portions of Tudisco 's testimony appearing there, since
the Respondents objected to the corrections proposed by the Trial
Examiner and , instead , suggested corrections which the General Counsel
did not agree to. The record remains uncorrected , therefore , as to the
disputed portion of Tudisco's testimony , although , as shown , it lacks
continuity and consistency with other portions of the record.
693
the list of names he had obtained from Local 468 to put
on Interlines' list of casuals . Some of these men were used
thereafter to the exclusion of Buckley, who was never
employed again by Interlines.
Asked by counsel for Interlines why Buckley had not
been "used during . . . the first and second week in
August," Tudisco answered, "Well, Manny Joseph called,
and the Union had complained, probably rightfully, that
we had not called the hall for a period of time to give him
an opportunity to provide help, so we thought we would
redress this balance by using some of his men along with
the ones we had on file."
Tudisco testified that it was Interlines' intention to use
Buckley again and that attempts had been made (he did
not testify by whom) on two occasions, one being on
about August 15 or 16, when, Tudisco testified, there was
no answer . I give this testimony no weight because it is
too vague, because it is not clear that a specific job would
have been offered and because other evidence indicated
that Buckley's name was removed from the list of casuals
until Sorensen offered to put it back on when he called
Buckley on August 29, 1967, as hereinafter related. Since
the latter call was not a specific offer of work but a mere
statement of possible future employment that could well
have been made for tactical reasons, my inference that
any attempted communication on August 15 or 16 would
not have been to offer a specific job is fortified.
When Buckley received no call for work on August 2 as
he had expected, he telephoned Gardner to ask if things
were slow. According to Buckley, Gardner replied that
Manny Joseph had called and said that Buckley was not a
member of Local 468 and that Interlines could not use
Buckley." Buckley protested that he did not have to be a
member of Local 468 under the terms of that union's
contract. Later that night, Buckley, accompanied by
another driver who worked elsewhere , went to Interlines'
dispatch office. Sorensen was still off sick. Buckley told
Gardner that he had been given an application for steady
employment and asked Gardner to reconsider employing
him. Buckley quoted Gardner as saying that the matter
was out of his hands but that if Gardner could get into
Local 468, Interlines would reconsider.12 The man Buckley
had taken with him as a witness (Donald Armour)
'Testimony adduced by Local 468 of what was said by Joseph , as given
by Louis Vercessi, the business agent, is that Joseph said - " We have men
out of work, why don ' t you give us a call . Don't tell me you haven't
been using any [nonmembers]. I have a couple of termination notices here,
one from Dare , one from Buckley ... We want an equal opportunity."
"When Tudisco was testifying as a witness for Interlines, and was being
taken over much • the same ground , Tudisco omitted all reference to his
statements to Gardner at this point Instead , he testified that he had
telephoned Sorensen that night and told Sorensen of Joseph ' s telephone
call.
"Both Respondents objected to all testimony of conversations between
Gardner and Buckley. I received it subject to proof that Gardner was a
supervisor . Interlines took special pains to portray Gardner as having no
supervisory functions and to refrain from revealing anything that might
suggest that Gardner had supervisory functions Despite this effort some
evidence could be the basis of an inference that Gardner had some duties
and functions that would bring him within the statutory definition of
supervisor. But I find it unnecessary to rely on Gardner's statements to'
Buckley in reaching my conclusions herein, as the conclusions which I
reach are supported by other evidence. I relate Buckley 's conversation with
Gardner therefore, only to explain Buckley ' s failure to fill in or file the
applications he had been given by Gardner and to explain why he was so
quick to file a charge on August 3, 1967
"Gardner, himself, could not have made Buckley a regular employee.
There were several steps that preceded actual employment as a regular
driver.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Buckley had asked Gardner why he was not
hired and that Gardner had replied that Manny Joseph of
Local 468 had called and said "being he was not a
member of Local 468, that he couldn't be hired," and that
Buckley had asked Gardner if Interlines was still going to
hire a couple of men and that Gardner had replied that
there was still an opening.
After Buckley had filed charges with the Board and
after Tudisco had been interviewed by Board agents,
Sorensen , on August 29, 1967, telephoned Buckley at his
home and told Buckley, according to the latter, that
Interlines was willing to put Buckley back on the list of
casuals maintained by Interlines. Buckley told Sorensen
that he was then employed as a working supervisor at
Clipper Carloading Company at night and that he would
be unavailable for work except on weekends. According to
Buckley, Sorensen told him that things had been slow."
Buckley' s name was therefore not replaced on the list of
casuals again unless it was done in November 1967, as
hereinafter related.
On November 10, 1967, having left his job at Clipper
Carloading, Buckley sent Interlines a telegram reading,
"This is to advise you that I am available for employment
on a casual or permanent basis." A few days later,
Buckley received a letter from Sorensen saying that
Buckley' s name was again being placed on the list of
casuals. He was not, however, employed again, and there
is reason to doubt that Buckley' s name was , in fact,
restored to the list, for on January 16, 1968, Tudisco
appeared at a meeting of the California Bay Area Joint
Staff Committee and testified: "After Buckley left Clipper
Carloading he sent me a telegram and said that he was
again available for work. And I thanked him for the call
and we just haven't called him. We have not added him to
the list of casual drivers that we want to call." Failure to
reemploy Buckley after November 10 was claimed by
Interlines to have been based on a decision reached after
it had made an investigation of Buckley's record with the
Department of Motor Vehicles and after it had learned of
other unfair labor practice charges and suits filed by
Buckley against other employers and had formed an
opinion that he was litigious . Since I find that such factors
affect only the remedy, I shall discuss them hereinafter.
C. Conclusions
1. As to Union's Causing Discrimination
Local 468 interposes two arguments in defense: first,
that it did not cause or attempt to cause discrimination
against Buckley, because it sought only to enforce its
contract, which was lawful, and second, that the issue here
involved was resolved as a result of a grievance committee
decision in a matter submitted to that committee by
Buckley, in accordance with the provisions of the Master
Contract, and that the Board should now decline to pass
on the issue again. Apparently the latter argument is
based on the principle laid down in Spielburg
Manufacturing Company, 112 NLRB 1080, and
succeeding cases."
"Written extracts from Interlines' records show that casual drivers made
32 trips in August (and that two were made on August 29), as compared
with 15 in July, 21 in September , 36 in October, and 21 in November. It
does not appear that any weekend trips would have been available for
Buckley after August 29, however, with one possible exception on
September 8
"International Harvester Co , 138 NLRB 923, affd 327 F 2d 784 (C A.
7), Raley's Supermarkets, 143 NLRB 256 See also 67 LRR 149, 67 LRR
114
With respect to the Union's first argument, I find it
unsupportable on the evidence. The contract gave the
Union the right to provide Interlines with names of
applicants for employment only. Interlines was, by the
contract, expressly "not . required to hire those
referred by the Local Union." But the evidence clearly
indicates that Joseph was not satisfied with furnishing
only a list of names . He complained of having members
out of work while Interlines was employing nonmembers,
namely Buckley and Dare. Tudisco testified that this was
the purpose of Joseph's call. According to Tudisco,
Joseph claimed that the contract gave the Union an equal
opportunity to provide help. Vercessi, on behalf of the
Union, testified that Joseph said that the contract gave
Local 468 the right to provide suitable applicants. In view
of Joseph's apparent purpose, I accept Tudisco's version
as more consistent. But even if Vercessi's memory was
accurate, the language quoted cannot be considered in
isolation in determining Joseph's purpose or Tudisco's
understanding of Joseph's purpose. Joseph's reference to
the contract must be considered in the entire context of
the conversation, including Joseph's complaint of
Interlines' employment of nonmembers while he had men
out of work. Furthermore, Joseph appears to have spoken
in a tone of voice which conveyed his purpose to require
the employment of members of Local 468 as casual
drivers in preference to nonmembers. This can readily be
inferred from his statement, "Don't tell me you aren't
using any" (meaning nonmembers) and his reference to
Buckley and Dare. Since Joseph made no objection to any
of the other casual drivers used by Interlines other than
Buckley and Dare (Interlines had used five besides
Buckley and Dare in July 1967), I infer that the other
drivers were members of Local 468. Obviously, on a ratio
of five members to two nonmembers Local 468 had no
cause to complain of a violation of a contract which gave
it the privilege only of an "equal opportunity with all
other sources to provide suitable applicants" even if the
contract had not contained the additional language that
"the Employer shall not be required to hire those referred
by the Local Union." The very fact that Joseph
mentioned Buckley and Dare as nonmembers being used
by Interlines is, in itself, indicative of the fact that he was
taking the position that members should be given work in
preference to nonmembers, for, if Joseph's sole purpose
was merely to supply names of applicants, he could have
done that without any mention at all of nonmembers who
were working. Also it is a fair inference that any union
which maintains an out-of-work list limited to members
only, which list takes precedence over another out-of-work
list for nonmembers, is not indifferent to employment of
nonmembers before members. That Tudisco understood
Joseph as demanding that preference be given to members
of Local 468 is evident from his subsequent action and
from the fact that men whose names were supplied by
Local 468 were, in fact, thereafter used in preference to
Buckley and Dare.
On all the evidence, I conclude and find that Local 468
attempted to cause, and did cause, Interlines to cease
using Buckley as a casual driver because he was not a
member of the Union."
The Union's second argument, that the issue has been
settled as a result of a grievance filed by Buckley and
decided by the Bay Area Joint Committee must be
"See Walsh and Kelly, 137 NLRB 1559, Plumbers and Steamfitters
Union Local 100, 128 NLRB 398, Sully-Miller Contracting Company, 152
NLRB 1623
SYSTEM 99 D/B/A INTERLINES BLANKENSHIP MOTOR EXPRESS
dismissed as untenable. The grievance was stated:
Violatlions of Article 3, Sections 1 and 2 and Article 5,
Section 1 of NMFA [National Master Freight
Agreement] On August 2 - 1967 Interlines-Blankenship
refused to hire Dean K. Buckley because of non
membership in Line Drivers Local 468 in violation of
The National Labor Relations Act. Seniority is claimed
by Buckley from August 2, 1967. Union asks for
complete list of all casuals used from 8-2-67 to hearing
date ftom respondent Employer.
In the first place, it will be noted that the Union was
representing Buckley on a grievance against Interlines.
Hence, the unfair labor aspect of the conduct of Local 468
was not involved, and this, alone , would exclude the
Union from any possible advantage under the Spielburg
rule. In the second place, it does not appear that the issue
decided in the grievance proceeding was the same as that
presented here. Although mention was made, in the
statement of the grievance, of the National Labor
Relations Act, the portion of the grievance statement
where that appears is, in essence , a statement of
background, followed by particulars of the grievance
which was, as stated in the first paragraph, thereof
violation's of article 3, sections 1 and 2, and article 5,
section 1 , of the collective-bargaining agreement . Article
5, section 1, deals with seniority rights. Article 3, section
1, deals with "Recognition, Union Shop, and Check-Off."
There is nothing therein that covers the issue here
involved. Section 2 of article 3, among other things,
provides that casual and part-time employees shall be
given first opportunity to qualify as regular employees.
There is nothing therein that relates to the problem here
involved. Tudisco testified that, in the grievance
proceeding, Buckley claimed seniority under the contract,
and he testified that the issue decided by the committee
was that Buckley had worked strictly as a casual
employee, had been terminated after each trip, and that he
had not -acquired seniority while working for Interlines.
This had nothing to do with the unfair labor practice here
involved. The transcript of the grievance proceedings,
although available and actually used for refreshing
witnesses' recollection with portions of testimony taken
therefrom which were deemed inconsistent with testimony
given in the hearing herein, was not put in evidence in the
instant case . Although counsel for Respondents sought to
show, by conclusionary answers of witnesses who attended
such grievance hearing, that the grievance hearing was
full, fair, and regular, the Board is entitled to draw its
own conclusions regarding such matters after a revelation
of all the facts from which the Board might reach such a
conclusion, and it cannot do so here without the transcript
of such proceedings. In the third place, it may be observed
that from the standpoint of the Union, any showing of an
unfair labor practice by Interlines might also be
detrimental to the Union since the same facts might
disclose that the Union had caused such unfair labor
practices by Interlines. I cannot presume, therefore, that
the Union would have been impartial in presenting such a
grievance against Interlines if the question presented
actually had been one of discrimination in violation of the
Act.
2. As to discrimination by Interlines
Without pressure from the Union, Interlines would, I
am satisfied , not have discriminated against Buckley
because he was not a member of Local 468. That
Interlines , without pressure from the Union , would not
695
have discriminated against Buckley does not, of course,
justify its discriminatory conduct." I do, however,
consider Interlines' favorable regard for Buckley during
July 1967, as a factor to be considered in determining
what caused Interlines to remove Buckley' s name from its
list of casual drivers. That Interlines did favorably regard
Buckley is apparent from the fact that Buckley was called
for casual jobs on four different occasions between July 12
and August 1, 1967," a period of less that 3 weeks. The
only casual driver given more trips than Buckley during
the same period was a driver named Busk, with five trips.
The latter became a regular employee on April 15, 1968.
Of the remaining five casual drivers used in July 1967,
none was used more than twice.
Also demonstrating Interlines' favor of Buckley before
Joseph' s call was the fact that, through Gardner, it offered
Buckley an application form to fill out as a first step.to
becoming a regular employee. I observe that Interlines did
not offer Buckley an application when he first spoke of his
interest in becoming a permanent employee but it did do
so on its own later, on August 1. Offering an application
is not , I appreciate, the same as offering permanent
employment, but it does indicate that Buckley was
favorably regarded. There is no evidence that Gardner
expressed dissatisfaction with Buckley's work on his last
trip on August 1.
The Respondent offered in evidence two tachograph
records of Buckley' s, one for a portion of his trip between
Oakland and Fresno on July 13 and the other for the
round trip between Oakland and Redding on July 22 and
contended that they showed that Buckley had caused the
motor to exceed a proper number of revolutions per
minute , indicating (according to Interlines' contention)
that he had exceeded the speed limit. For a number of
reasons, I find that this evidence does not show a reason
for ceasing to use Buckley as a casual employee after
August 1, 1967. In the first place, it would have been the
responsibility of Sorensen and Gardner to check Buckley's
tachograph after his first trip (July 12-13) before deciding
to use Buckley again as a casual driver. I conclude that
this first tachograph record (between Oakland and Fresno)
was, therefore, found satisfactory, especially since nothing
was said to Buckley about it. The other tachograph record
introduced in evidence is no worse than the first.18 Even if
it were assumed that Sorensen and Gardner had not even
seen the tachograph for July 22, they admittedly did not
have their attention called to either tachograph chart
again before the end of August 1967. So this could not
have accounted for the failure of Interlines to employ
Buckley between August 1 and the end of the month. In
fact, there is no credible explanation for Interlines' failure
to call Buckley for work after August 1 other than
Joseph's objection to his employment in preference to
members of Local 468.
"N L R B v. Fry Roofing Co, 193 F.2d 324 (C.A. 9).
"Interlines sought to discredit Buckley by showing that, in a statement
to the Board , Buckley had said that he had made ten trips . No explanation
was sought, however, as to why he so stated , and I find that the word
"trip" might be subject to more than one meaning . It could mean each leg
of a total trip If you consider Buckley's first trip as to San Jose and his
second trip as from there to Fresno, etc., one can count up ten such trips.
But if you consider a trip as one complete round trip from Emeryville to
other point or points and return to Emeryville , then there were only four
trips
"I note that , at times, the tachograph bore lines coming to a sharp point
above the line for 2300 r .p in These points indicate that , at intervals,
Buckley's engine exceeded 2300 r .p in. on each tachograph, but these lines
occurred only very briefly and at intervals that suggest that they were
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even though Tudisco might not expressly have told
Gardner or Sorensen not to use Buckley again after
Tudisco ' s conversation with Joseph on August 2, 1967, his
testimony clearly shows that he conveyed this idea to
Gardner. Asked by Counsel for the General Counsel if he
had instructed Gardner or Sorensen that Buckley was not
to be employed again as a casual until he had been
cleared by the Union, Tudisco answered: "Not just that
way, it was not that specific." This implies that Tudisco
intended to convey that impression although not in
specific language . Taking this evidence along with the
evidence that Buckley was not again called for work and
the absence of any other credible reason therefor except
Joseph' s call, it is an inescapable conclusion (even
excluding all consideration of Gardner ' s conversation with
Buckley, which I do) that the reason Buckley was
removed from the list of casual drivers who would be
called thereafter was Buckley ' s lack of membership in
Local 468 and Joseph ' s call to Tudisco about Interlines'
use of nonmembers instead of members of Local 468 as
casual drivers.
At the hearing , Interlines adduced evidence designed to
show that Buckley was not a desirable employee.
However , even if such evidence were found to be true, it
had no bearing on Interlines' discrimination against
Buckley by discontinuing his services on August 2, 1967,
because , admittedly , it had gained its information no
earlier than the end of August 1967, and much of it later
than that, most likely after November 10, 1967, when
Sorensen wrote to Buckley to say that Interlines was
again placing his name on its list of casual drivers, for, if
it had gained information by that time that Buckley was
not a desirable employee, it could have so stated and
closed the matter right then . If such evidence has any
value, therefore, it would be only to affect the remedy.
Hence, any discussion of such evidence will be deferred
and- will be discussed in the section below entitled "The
Remedy."
I dismiss Interlines' argument based on the Spielburg
decision for reasons applicable to Interlines which are
included in the preceding section hereof with respect to
contentions of Local 468.
On all the evidence , therefore , I find that Interlines
discriminated in regard to the hire of Dean Buckley
because of his nonmembership in Local 468 in violation of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the operation of
Interlines described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Interlines is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 468 is a labor organization within the meaning
of Section 2(5) of the Act.
made at times of shifting of gears rather than on sustained driving. No
conclusion can fairly be drawn from these marks that Buckley exceeded
the speed limit
3. By discriminated against Dean K. Buckley in regard
to his hire and tenure of employment, Interlines has
engaged in , and is engaging in, unfair labor practices
within the meaning of Section 8 (a)(3) and (1) of the Act.
4. By attempting to cause, and by causing Interlines to
discriminate against Dean K. Buckley, Local 468 has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(2) and 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
I have found that Interlines discriminated against
Buckley on and after August 2 , 1962. I shall therefore
recommend that he be reinstated and made whole by
payment of a sum of money equal to that which he would
have been paid absent the discrimination and shall
recommend that other action be taken by both
Respondents.
It is the argument of ,Interlines that in late August 1967
it learned of Buckley's record at the Department of Motor
Vehicles and that this revealed facts which would have
justified its refusal to employ Buckley as a line driver at
all after that date because he had a record for speeding
and other traffic violations . On its face , Buckley' s record
with the Department of Motor Vehicles was not good, but
Buckley offered an explanation which would materially
improve this record by testifying that, through a failure of
an insurance company to report the facts, he had been
shown as having caused an accident for which he was not
responsible . He claimed to have straightened his record
out with the Department of Motor Vehicles."
In any event, the evidence showed the Interlines has
had drivers whose licenses were suspended by the
Department of Motor Vehicles and who had been
reinstated by Interlines when their suspended licenses had
been again validated . Buckley testified that whatever
citations showed on his record as speeding violations were
issued while he was driving his personal automobile and
not a truck . Beyond all this , the evidence shows that
Interlines customarily hires casual drivers without
checking their record with the Department of Motor
Vehicles and normally makes such a check only after an
application for regular status has been filed . I see no
reason to apply a different rule to Buckley as a casual
driver.
At the hearing, Interlines , by questions of Buckley
asked on cross-examination , elicited information to show
that Buckley had filed charges with the Board on several
occasions and had successfully sued a supervisor for
assault and battery . A witness for Interlines testified that
"A letter dated May 7 , 1968, from a Driver Improvement Analyst for
The Department of Motor Vehicles Division of Drivers Licenses reads
Your letter of April 27 , 1968 has been brought to my attention for reply.
All previous unpaid citations were cleared, in August 1967, as you state.
However , even though these traffic violations occurred in 1964, 1965,
1966 and early 1967, the convictions are not entered to your record until
the release certificates were cleared by the respective courts . All of these
clearances show conviction date of August 1967 and therefore we must
report these as August 1967 convictions (not earlier dates.) The
revocation of your driving privilege was set aside as explained to you in
my letter of 11 August 1967 [not in evidence ]. After discussing your
financial responsibility suspension with a Departmental Representative,
your file was completely cleared, in an order dated 10 January 1968.
What the order "completely cleared " is not plain Whether the words
mean that something was expunged or was merely straightened out to
validate Buckley's driver' s license is obscure.
SYSTEM 99 D/ B / A INTERLINES BLANKENSHIP MOTOR EXPRESS
it had concluded that Buckley was of a disputatious and
litigious nature . It was contended that this was an added
reason - for not again employing him while better
employees were available . But all this information came to
Respondent long after Buckley had been taken off the list
of casuals . Tudisco ' s testimony reveals that in August
1967 he had . telephoned two former employers of Buckley
and had asked , if Buckley had filed any charge against
them . Pne answered negatively , according to Tudisco, and
the other answered that Buckley had not filed a charge
but had filed a civil suit (presumably against the
supervisor) which it was unwilling to discuss . There is no
indication that , before cross-examining Buckley at the
hearing , Interlines had any information about other
charges filed by Buckley , and I conclude that the filing of
charges against other employers had nothing to do with
the reason Interlines failed to call Buckley for work after
Joseph 's telephone call to Tudisco on August 2, 1967. Nor
would such charges , in themselves , disqualify Buckley for
a position of a line driver.
Since Buckley , as a casual driver , demonstrated that his
services were satisfactory to Interlines , I conclude that he
ought to be restored to the position of a casual driver with
an opportunity to file an application for permanent
employment , to satisfy the Respondent that his record
with the Department of Motor Vehicles has been cleared
up, and to be given honest and unbiased consideration as
a regular driver when an opening shall occur . I shall,
therefore , recommend that he be reinstated by Interlines
(System 99 ) to the list of casual drivers and be given
employment periodically , as Interlines had done prior to
August 2 , 1967, and that he be made whole by each
Respondent in the manner hereinafter explained.
I shall recommend that Interlines make Buckley whole
for any loss he may have suffered as a result of the
discrimination by paying him a sum of money equal to
that which he would have earned in Interline 's employ but
for the discrimination . Since Interlines purported to have
restored Buckley' s name to its list of casual drivers but
did not call him for work as it had in July , I find that
restoration to the list of casual drivers will not, alone,
restore the status quo existing on August 1, 1967. I shall,
therefore , recommend that the period for which backpay
shall be computed be from August 2, 1967, to the date not
only when Buckley 's name is placed on the list of casual
drivers but when he is given employment on a schedule
comparative to that on which he was called by Interlines
in July 1967 , with variations allowed for seasonal
fluctuations in volume of business on a comparative basis.
The General Counsel contends that Buckley should,
without more ado, be reinstated as a regular , rather than
a casual , driver , because , he contends , Buckley had proved
himself to be a satisfactory driver and had been given an
application to fill out for regular employment, thus
demonstrating that he had been found to be satisfactory. I
do not agree with the General Counsel with respect to this
portion of the remedy . It is true that Buckley had been
given such an application , but he did not fill it out or
return it to Interlines , and even the filing of such an
application would not have been equivalent to employment
as a regular employee, since Interlines did not necessarily
hire all applicants . It is customary for Interlines to make
inquiries concerning the applicant ' s former employment
and his driver's record before deciding to accept the
application . In any event it appears that casual drivers
who were employed at about the same time as Buckley,
actually did not become permanent employees until
March - or April 1968 , so I cannot presume that Buckley
697
would have been hired as a regular employee any earlier."
Since the others, in effect , worked a trial period of 7 or
more months it is not unreasonable that Buckley be
required to do so likewise.
Except in succumbing to the pressure of Local 468 to
discriminate against Buckley , Interlines has shown no
disposition generally to violate the provisions of the Act. I
shall, therefore , not recommend a broad cease and desist
order.
Since I have found that Local 468 attempted to, and
did, cause Interlines to discriminate in regard to Buckley's
employment as a casual driver in violation of Section
8(a)(3) of the Act, I shall recommend that Local 468 take
appropriate action to dissipate the effect of its unlawful
conduct . This will include , among other things, a
notification to Interlines (System 99) that Local 468 has
no objection to the employment of Buckley as either a
casual or regular driver and payment by Local 468, jointly
and severally with Interlines , of an appropriate amount of
back pay as hereinafter specified.
Local 468 contends that it had already withdrawn its
objection to the employment of Buckley during an attempt
to settle the case . Such an offer would be conditional upon
acceptance of the full offer of settlement and there
appears to have been no settlement reached. The
withdrawal of objection must be unconditional.
Local 468 told Buckley that if he procured a job as a
line driver and got a letter from his employer to the
Union so stating , it would take him in as a member, and
Local 468 also contends that it assisted Buckley to secure
a position as a line driver with another company but that
Buckley had turned this job down . Buckley went to the
employer named by Local 468 and inquired about a line
driver' s job . Buckley testified that he was told there was
no opening for a line driver but that the employer needed
a night supervisor . This was the kind of job which Buckley
already had with another company; so he declined it.
Local 468 offered only hearsay evidence that Buckley had
turned down a job as a line driver; it did not call a
representative of the employer who allegedly offered
Buckley such a job . I credit Buckley's denial that he was
offered a job as a line driver . I find , therefore, no evidence
that would establish an earlier cutoff date for the
obligation of Local 468 for backpay.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in the case , I recommend
that:
1. System 99 , as successor to Gilardy, Preston & Dore,
doing business as Interlines Blankenship Motor Express,
its officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discriminating against Dean K. Buckley or any
other employee in regard to his hire or tenure of
employment because he is not a member of Line Drivers
Local 468, or of any other union , except to the extent that
membership in a labor organization may be required as a
condition of continued employment under the terms of a
collective-bargaining agreement made as authorized in
Section 8(a)(3) of the Act.
(b) In any other like or related manner interfering with,
restraining , or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
"Decker Truck Lines, 139 NLRB 65 at 68.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which, I find
will effectuate the policies of the Act:
(a) Offer to Dean K. Buckley immediate reinstatement
to the list of casual drivers and offer him periodic
employment as a casual line driver, giving him a fair
opportunity to become a regular driver.
(b) Jointly and severally with Respondent Line Drivers
Local 468, make said Buckley whole for any loss he may
have suffered as a result of the discrimination herein
found by paying him a sum of money equal to that which
he would have earned as a line driver in the employ of
Interlines or System 99 between August 2, 1967, and the
date it lists him as a casual driver and offers him specific
employment as a casual line driver on a schedule as
described in the section entitled "The Remedy", above,
less his net earnings elsewhere during said period, the said
sum to be computed on a quarterly basis in accordance
with the Board's customary practice," and to be paid with
interest on said net sum at the rate of 6 percent per
annum until paid."
(c) Give said Buckley fair opportunity to become a
regular line driver and make an unbiased appraisal when
he applies for regular status.
(d) Post at its dispatch office in Emeryville, California,
copies of the attached notice marked "Appendix A.""
Copies of said notice, on forms provided by the Regional
Director for Region 20 of the Board, shall, after being
duly signed by Respondent Interlines (System 99) or its
authorized agent, be posted immediately upon receipt
thereof in conspicuous places, including all places where
notices to line-driver employees are customarily posted,
and be maintained as posted for a period of 60
consecutive days thereafter, taking reasonable steps to
insure that said notices are not altered, folded under,
defaced, or covered by any other material.
H. Line Drivers Local 468, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, its officers, agents, representatives,
successors, and assigns, shall:
1. Cease and desist from:
(a) Causing, or attempting to cause, Interlines, its
successor, System 99, or any other employer within its
jurisdiction, to discriminate against Dean K. Buckley, or
any other employee, in violation of Section 8(a)(3) of the
Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Notify Gilardy, Preston & Dore, doing business as
Interlines Blankenship Motor Express and System 99, in
writing , that it has no objection to the employment of
Dean K. Buckley as a casual or as a regular line driver
and that it will not cause or attempt to cause said
employer to discriminate against said Buckley or any
other employee because he is not a member of Local 468,
except to the extent that membership may be required as
a condition of employment under the terms of a
"F W Woolworth Company, 90 NLRB 289
"Isis Plumbing & Healing Co, 138 NLRB 716
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order "
collective-bargaining agreement made as authorized in
Section 8(a)(3) of the Act.
(b) Jointly and severally with the Respondent Interlines
(System 99), make whole said Buckley for any loss he
may have suffered between August 2, 1967, and the date
Local 468 unconditionally notifies said employer that it
has no objection to the employment of said Buckley as
either a casual or regular line driver, by paying him a sum
of money equal to that which said Buckley would have
earned during said period in said employer's employ
absent the discrimination herein found to have been
caused, less his net earnings elsewhere during said period,
computing the said amount on a quarterly basis, said sum
to be computed with interest at the rate of 6 percent per
annum in the same manner as required of said employer
hereinabove.
(c) Post at its meeting hall and dispatch office the
notice attached hereto and marked "Appendix B." 2°
Copies of said notice, on forms provided by the Regional
Director for Region 20 of the Board, shall, after being
duly signed by its authorized officer or representative, be
posted in conspicuous places, including all places where
notices to members are customarily posted and be
maintained as posted for 60 consecutive days thereafter,
taking reasonable steps to insure that said notices are not
altered, folded under, defaced, or covered by any other
material.
(d) Furnish signed copies of said notice to the said
Regional Director for posting (System 99 being willing) at
the places where notices of System 99 to its employees are
posted.
III. Each Respondent shall notify the said Regional
Director, in writing, within 20 days from the date hereof
of, what steps each has taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 20 , in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT encourage or discourage membership
in Line Drivers Local 468, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Helpers of
America or in any other labor organization by
discriminating in regard to the hire and tenure of
employment of any employee.
WE WILL NOT interfere with, restrain , or coerce
employees in the exercise of the right to
self-organization to form , join , or assist labor
organizations , to bargain collectively through
representatives of their own choosing , or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
SYSTEM 99 D/B/A INTERLINES BLANKENSHIP MOTOR EXPRESS
refrain from any or all such activities except to the
extent that such right may be affected by an agreement
requiting membership in a labor organization as a
condition of employment as authorized in Section
8(a)(1) of the National Labor Relations Act, as
amended.
WE WILL reinstate Dean K. Buckley to the list of
casual line drivers, will offer him periodic work as such,
and will give him an opportunity to qualify as a regular
line driver.
WE WILL also make said Buckley whole for any loss
he may have suffered as a result of the discrimination
against him by paying him a sum of money equal to
that which he would have earned in our employ absent
the discrimination.
SYSTEM 99 (FORMERLY
GILARDY, PRESTON &
DORE ) D/B/A INTERLINES
BLANKENSHIP MOTOR
EXPRESS
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 450 Golden
Gate Avenue, Box 36047, San Francisco , California,
Telephone 556-0335
APPENDIX B
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
699
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause System 99,
formerly Gilardy, Preston & Dore, doing business as
Interlines Blankenship Motor Express, or any other
employer in our jurisdiction, to discriminate against
Dean K. Buckley or any other employee because he is
not a member of this local except to the extent that
membership in a labor organization may be a condition
of continued employment by the terms of a contract
made as authorized in Section 8(a)(3) of the National
Labor Relations Act as amended.
WE WILL NOT restrain or coerce employees in the
exercise of the rights guaranteed in Section 7 of said
Act.
WE WILL, jointly and severally with Stem 99, make
said Buckley whole for any loss he may have suffered
as a result of the discrimination caused.
Dated By
LINE DRIVERS LOCAL No.
468, INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS
OF AMERICA
(Labor Organization)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 450 Golden
Gate Avenue, Box 36047, -San Francisco, California,
Telephone 556-0335.