Thurston Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Sep 3, 1954

109 N.L.R.B. 1179 (N.L.R.B. 1954)

THURSTON MOTOR LINES, INC. 1179
The undersigned , therefore , finds that the picketing of the Respondent at the
common situs at the Kress job on September 21-22, 1953, was primary, and not
secondary , and, therefore , did not violate Section 8 (b) (4) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR UPON COMMERCE
The activities of the Respondent, set forth above, occurring in connection with the
operations described in section 1, hereof, 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.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Painting and Decorating Contractors of America, Georgia State Council,
Augusta Chapter, Augusta, Georgia, is engaged, and during all times material herein
was engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Brotherhood of Painters, Decorators & Paperhangers of America, Local Union
No. 1730, is a labor organization within the meaning of Section 2 (5) of the Act.
3. Since March 2, 1953, and August 11, 1953, Brotherhood of Painters, Decora-
tors & Paperhangers of America, Local Union No. 1730, has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (b) (4) (A)
of the Act, by engaging in and encouraging the employees of members of the Asso-
ciation and employees of other employers to engage in a concerted refusal in the
course of their employment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities, or to perform
any services, an object thereof being to force or require Clarence Mobley Construc-
tion Company and Gilbert & Cooper Construction Company, or any other em-
ployer to cease doing business with the employer members of Painting and Decorat-
ing Contractors of America, Georgia State Council, Augusta Chapter.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. Brotherhood of Painters, Decorators & Paperhangers of America, Local Union
No. 1730, has not engaged in any unfair labor practices within the meaning of the
Act, by picketing at the S. H. Kress & Co. store in Augusta, Georgia, on September
21-22, 1953.
[Recommendations omitted from publication.]
THURSTON MOTOR LINES, INC. and CuRTIS MCCURDY. Case No. 11-
CA-703. September 3, 1954
Decision and Order
On June 15, 1954, Trial Examiner Max M. Goldman, issued his In-
termediate Report in the above-entitled proceedings, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief. The Respondent also
filed a brief.
109 NLRB No. 172.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Intermedi-
ate Report, the General Counsel's exceptions and brief, the Re-
spondent's brief, and the entire record in the case and hereby adopts
the findings, conclusions, and recommendations of the Trial Ex-
aminer.
[The Board dismissed the complaint.]
MEMBER MURDOCK took no part in the consideration of the above De-
cision and Order.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed, the General Counsel by the Regional Director for the
Eleventh Region (Winston-Salem, North Carolina), of the National Labor Rela-
tions Board, herein called the Board, issued his complaint dated March 31, 1954,
against Thurston Motor Lines, Inc., herein called the Respondent, alleging that
the Respondent had engaged in and was engaging in unfair labor practices within
the meaning of Section (8) (a) (1) and (3) and Section 2 (6) and (7) of the
Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act.
Copies of the complaint and the charge together with notice of the hearing were
duly served upon the parties.
With respect to unfair labor practices, the complaint alleges that the Respondent
has (1) interfered with, restrained, and coerced its employees in violation of Sec-
tion 8 (a) (1) of the Act, and (2) discriminatorily discharged Curtis McCurdy
on January 13, 1954. The Respondent's answer denies the commission of any
unfair labor practices.
Pursuant to notice a hearing was held on May 11 and 12, 1954, at Wilson, North
Carolina, before the undersigned Trial Examiner. The General Counsel and the
Respondent were represented by counsel. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues was
afforded the parties. The parties did not present oral argument at the close of the
testimony, and only the Respondent filed a brief with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a North Carolina corporation, is a common carrier engaged in
the transportation of freight by truck, operates terminals in various towns and cities
in North Carolina and Virginia, and maintains its main office in Wilson, North
Carolina. During the year 1953, the Respondent carried freight valued in excess
of $250,000, between its terminals in North Carolina and Virginia. It is found that
the Respondent is engaged in commerce within the meaning of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers,
AFL, is a labor organization admitting to membership employees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
The General Counsel alleges that Curtis McCurdy was discharged on January 13.
1954, in violation of Section 8 (a) (3) of the Act. The Respondent denies that
McCurdy was discharged because of his union activities and urges in addition that
1 Thurston Motor Lines, Inc., Case No. 11-RC-598, decided March 22, 1954. (Not re-
ported in printed volumes of Board Decisions and Orders.)
THURSTON MOTOR LINES, INC. 1181
McCurdy was a supervisor and not an employee within the meaning of the Act.
The status of McCurdy as an employee or a supervisor will be considered first.
The events involved occurred at the Respondent's Wilson terminal. This termi-
nal is operated under the supervision of William R. Smith, terminal manager.
Under Smith, during the night shift, when McCurdy was employed there, were
Eugene G. Brown, night superintendent, and George Amerson, assistant night
superintendent, who subsequent to McCurdy's discharge replaced Brown as night
superintendent when Brown was terminated. Under the night superintendent and
his assistant are crews consisting of rollers or freight handlers and checkers or
checker-foremen. The job McCurdy had held was checker-foreman, the subject of
the employee-supervisory issue.
A crew generally consists of 3 or 4 men, a checker and 2 or 3 rollers, and there
have been occasions where there have been as many as 4 men associated with a
checker in a crew. The Respondent generally had the services of 7 to 9 crews
on the night shift. The highest number of men on the night shift has been about
40, the lowest about 20, and the average about 30. In addition to supervising the
freight handling by these crews in loading and unloading trucks or placing freight
in the warehouse terminal, the night superintendent has other duties such as dis-
patching and handling matters arising out of truck breakdowns and wrecks.
The checker's function is to get trucks loaded and unloaded. He obtains from
the superintendent's office waybills showing each shipment which have already been
marked by code symbols showing the destination of each piece of freight. The
checker and his crew then, in the instance of unloading a truck, proceed at the
instruction of the checker to unload the truck by removing the freight from the
truck and placing it either on another truck or at an established place in the ware-
house for a given destination in accordance with the code designation appearing on
the waybill. The checker works at a table on the platform at the open end of
the truck and marks off the items of freight the waybill shows to account for all
the items and notes shortages and overages when they occur. The checker also
goes into the truck to help the rollers load freight on their handtnicks. If the
checker finds a shipping crate damaged he would fix the crate, but if he finds the
contents damaged he would report it to the superintendent and a proper record
would be made on the matter. After the truck is unloaded the checker and his
crew sweep out the truck. In loading a truck the checker is responsible for seeing
that it is loaded properly, such as seeing that the lighter freight is placed on top of
the heavier freight.
The checker is responsible for the production and the safe and proper handling
of freight by his crew. Some meetings were held by management with the checkers
to instruct them of these duties and to prevent theft of and damage to freight.
Checkers have authority to and have recommended the discharge and transfer of
rollers. Brown testified that if a checker recommended the discharge of a roller be-
cause they could not get along, and upon his inquiry he found that the roller could
get along better in another crew he would transfer him to that crew; if he found that
the roller would not get along better elsewhere he would terminate him. Brown
also gave an instance of a complaint by a checker that a roller was lazy and not pro-
ducing. In that situation Brown did not accept the roller's denial of laziness but
warned him and then instructed Amerson to watch him for a few days and let him
go if he did not improve. According to Smith's uncontradicted testimony a checker
has the power to discharge a roller.
It is accordingly found that checkers or checker-foremen are supervisors' and
that hence McCurdy does not have protection under the Act. It will therefore be
recommended that the complaint be dismissed as to McCurdy.
The complaint also alleges independent violations of Section 8 (a) (1) of the Act.
The General Counsel here relies upon inquiries by Brown as to union membership
or activities. In some instances the record is clear that the subjects of the interroga-
tions were checkers or checker-foremen and in other instances the status of the in-
dividual subject was not developed. If inquiries of this nature were directed to em-
ployees, they were isolated and insufficient to warrant recommending that the Board
issue an order in this respect.
[Recommendations omitted from publication.]
s The same result was reached by the Board in the case cited in footnote 1 involving the
Respondent's Wilson terminal where the foremen were excluded from the appropriate unit
as supervisors.