Freightlines Equipment Co.

National Labor Relations Board - Board Decisions

Jun 25, 1958

120 N.L.R.B. 1614 (N.L.R.B. 1958)

1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that, even assuming union responsibility for the work
stoppages, the Union did not have a proscribed object within the
meaning of Section 8 (b) (4) (D). Accordingly, we find that we
are without authority to determine the present dispute, and shall
quash the notice of hearing issued in this proceeding.
[The Board quashed the notice of hearing.]
Beth E. Richards d/b/a Freightlines Equipment Company and
William R . Bray. Case No. 4-CA-1508. June °25, 1958
DECISION AND ORDER
On August 2,1957, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 and a sup-
porting brief and the Respondent filed a brief in reply.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Bean].
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 Intermedi-
ate Report, the exceptions and the briefs, and the entire record in this
case , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent consistent herewith.
The Trial Examiner found that the Respondent did not violate
Section 8 (a) (3) and (1) of the Act by replacing the Charging Party
and 10 other employees named in the complaint with former em-
ployees, at the request of Local Union 229, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
In so doing, the Trial Examiner found that the replacement was not
based on considerations of union membership or loyalty but on con-
siderations of employment seniority which the Respondent ascertained
from its own records. He, therefore, concluded that the replacement
did not constitute discrimination which would encourage union mem-
bership within the meaning of the Act. As the evidence persuades
us that the Respondent replaced the employees in question in order to
give their jobs to members of Local 229, we find that the Respondent
discriminated against the replaced employees so as to encourage mem-
120 NLRB No. 194.
FREIGHTLINES EQUIPMENT COMPANY 1615
bership in Local 229 in violation of Section 8 (a) (3) and (1) of the
Act.
The facts, which are substantially undisputed, are briefly as follows :
Prior to 1951; John Richards, operated Richards Motor Freight
Lines in Scranton, Pennsylvania. Due to'financial difficulties, he went
into bankruptcy and, in 1952, the receiver, who ,was appointed by the
court to operate the business, laid off ,all the' drivers. ' At that time,
Richards was a signatory to an automatically renewable contract exe-
cuted in 1950 with Local 229, which contained union-shop and senior-
ity-provisions. Also, in 1952, Richards organized the Respondent
Freightlines. Equipment Company in his wife's name and hired new
drivers. This was a Delaware, New Jersey, operation and, until 1954,
all drivers were based there. Commencing in 1954, equipment and
employees were transferred from,Delaware and gradually Freight-
'lines evolved into a Scranton' operation over which Local 229 claimed
jurisdiction.'
The Trial Examiner found, and we agree, that the 1950 contract
had become ineffective by reason of the defunctness of a party. Never-
theless, after Richards resumed operations in Scranton, Local 229
claimed jobs for Richards' drivers, although their employment with
him had terminated years before. For this reason, Local 229 also
refused to accept into its membership the Respondent's employees
-who are named in the complaint. Concerned that they were in danger
of losing their jobs because of Local 229's demands, an informal com-
mittee of the employees 1 told the Respondent'that they were submit-
ting theii,complaint to the International. Thereafter, at Local 229's
insistence, the Respondent replaced the named employees with mem-
bers of Local 229.1
The Respondent contends that it lawfully effected the replacement
on the basis of the superior seniority rights possessed by members of
Local 229. The General Counsel, on' the other hand, urges that the
Respondent replaced its employees because of considerations of mem-
bership in Local 229 and therefore violated Section 8 (a) (3) and (1)
of the Act. '
We find no merit in the Respondent's contention. The record con-
vinces us that the Respondent replaced the employees in question, at
:'There is no evidence in the record concerning the nature, selection, composition or
authority of this committee. Contrary to the Respondent's contention, we find no com-
mitment by the employees to be bound by the International's determination. In any event,
the International's determination cannot preclude the Board from finding, as we do,
unlawful discrimination against the replaced employees. Cf. Monsanto Chemical Com-
pany, 97 NLRB 517, 519-520, enfd. N. L. R. B. v. Monsanto Chemical Company, 205 F.
2d 703 (C. A. 8).
2 The Respondent transferred to its Delaware, New Jersey, operation those replaced
employees who were willing to go there and laid off those employees who declined to
transfer. There were 14 drivers who were laid off but only 11 of these are named in the
complaint.
1616 DECISIONS OF: NATIONAL 'LABOR RELATIONS- BOARD
Local 229's insistence, solely in order to give preference in employment
to members of that organization and not because Local 229 members
had superior seniority rights. Not only vas there no operative con-
tract in existence entitling Local 229's members to seniority, rights,but
the evidence shows that Richards was not disposed to recall his, former
employees until Local 229 claimed the jobs. Indeed, in its September
8 letter to the replaced employees, the Respondent admitted that its
replacement "action was brought about by orders from National Head-
quarters of Teamsters and Chauffeurs Union," and that its Scranton
operation would be conducted by "drivers of Local 229." Further in-
dicating that the Respondent was not motivated by considerations of
seniority in replacing its employees with Local 229 members are its
admissions in its letters of January 11 and February 15, 1956, to the
Board's Regional Office. In the first one, in response to the Region's
notification of the filing of the charge herein, the Respondent stated
that the replacement of employees "was a matter handled in accord-
ance with instructions that I received from Local 229." In its second
letter, the Respondent explained that Local 229 wanted "a contract
claiming jurisdiction in the Scranton area" and that its "members go
back on the job . . . [or] I would have had a labor tieup if their
demands were not met."
As it is clear from the foregoing evidence that the Respondent's
discriminatory conduct was based on considerations of union member-
ship, its action was such as encourages union membership and the
Respondent thereby violated Section 8 (a) (3) of the =Act .l • By this
conduct, the Respondent further interfered with, restrained, and
coerced employees in violation of Section 8 (a) (1) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, as set forth above, which have
been found to constitute unfair labor practices, occurring in connection
with the operations of the Respondent, have a close, intimate, and sub-
stantial 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.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall require it to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
We have found that the Respondent on September 8, 1956, dis-
a The Radio Officers ' Union of The Commercial Telegraphers Union, AFL (A. H Bull
,Steamship Company) v. N. L R. B , 347 U. S. 17.
FREIGHTLINES EQUIPMENT COMPANY 1617
criminatorily replaced the employees named below.' Accordingly,
we shall order the Respondent to offer the discriminatees immediate
and full reinstatement to their former or substantially equivalent posi-
tions and to make them whole for any loss of pay which they may have
suffered by reason of the discrimination practiced against them by
payment to each of them of a sum of money equal to the amount each
normally would have earned as wages from September 8, 1956, the date
of the discrimination, to the date of the Respondent's offer of rein-
statement, less his net earnings during this period. Back pay shall be
computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth Company.' However, as the Trial Examiner
had recommended dismissal of the complaint herein, back pay shall be
tolled for the period between the issuance of the Intermediate Report
and the issuance of this Decision and Order.
As we are persuaded that the Respondent's past conduct reveals an
attitude of opposition to the purposes of the Act, we find a potential
threat of future violations and shall, therefore, include a broad cease
and desist order.
CONCLUSIONS OF LAW
1. The Respondent Beth E. Richards d/b/a Freightlines Equip-
ment Company is engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. By discriminating in regard to hire and tenure of employment
of the employees named above and encouraging membership in a
labor organization, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. By interfering with, restraining, and coercing employees in the
exercise of rights guaranteed in Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
4 These are as follows : William Doyle , William Ross, LeRoy Morden , Al Zuchlewski,
Douglas Riley, Charles Zentel, Gerald Power, Frank Munafo, Glen Evans, and William
Bray With respect to another alleged discriminatee , LeRoy Rought, it is undisputed
that a week before the replacement herein, Rought was laid off because of lack of work
However, the evidence is not clear whether his employment was thereby terminated, as
the Respondent contends , or whether he simply was in a temporarily laid -off stains.
In any event, the Respondent took no specific action against Rought when it discrim-
inated against its other employees In these circumstances , the record is insufficient to
sustain a finding of discrimination against Rought and, accordingly, we shall dismiss the
allegations of the complaint with respect to him
90 NLRB 289
48 3142-5 9-v o f 12 0-10 3
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent Beth E. Richards
d/b/a Freightlines Equipment Company, Scranton, Pennsylvania,
her agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Local Union 229, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or in any other labor organization, by laying off, trans-
ferring, or discharging employees, or in any other manner discrimi-
nating against them in regard to their hire or tenure of employment
or any term or condition of employment, except to the extent permitted
by Section 8 (a) (3) of the Act.
(b) In any manner interfering with, restraining, or coercing her
employees in the exercise of their rights to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid and protection, or to refrain from any or all such activities, except
to the extent that such rights may be affected by an agreement requir-;
ing membership in a labor,-organization as, a condition of employment
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer William Doyle, William Ross, LeRoy Morden, Al Zuch--
lewski,` Douglas Riley, Charles Zentel, Gerald Power, Frank Munafo,
Glen Evans, and William Bray full and immediate reinstatement to,
their former or substantially equivalent positions, without prejudice
to-their seniority, and other rights and privileges.
(b) Make whole the above-named individuals for any loss of pay
they,may have suffered by reason of the Respondent's discrimination
against them, in the manner. set forth -in the section of this Decision
and Order entitled "The Remedy."
(c) Preserve and make available to the Board or its agents upon'
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(d) Post at its offices in Scranton, Pennsylvania, and -Delaware,-
New Jersey, copies of the notice attached hereto marked "Appendix." 6
Copies of said notice,-to be furnished by the Regional Director for the
Fourth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt
thereof, and maintained by Respondent for a period of sixty (60)
6In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Older" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order
FREIGHTLINES EQUIPMENT COMPANY 1619
consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated Section 8 (a) (3) and (1) of the Act, by
discriminating against LeRoy Bought, be, and it hereby is, dismissed,
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 membership in Local 229, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or in any other labor organization, by laying
off, transferring or discharging employees, or in any other manner
discriminating against them in regard to their hire or tenure of
employment, except to the extent permitted by Section 8 (a) (3)
of the Act.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization,
to form, join, or assist any labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual -aid and protection, or to refrain from
any or all such activities, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer William Doyle, William Ross, LeRoy Morden,
Al Zuchlewski, Douglas Riley, Charles Zentel, Gerald Power,
Frank Munafo, Glen Evans, and William Bray full and im-
mediate reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges.
117E WILL make whole the above-named individuals for any loss
of pay they may have suffered by reason of our discrimination
against them.
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our.employees are free to become , remain, or refrain -from becom-
ing or .remaining , members of any labor organization , except to the
extent that this .right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3,) of the Act.
BETH E . RICHARDS D/B/A FREIGHTLINES
EQUIPMENT COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
'This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE -REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges ;filed by William R. Bray, an individual, the General Counsel 'of
the National Labor Relations Board issued a complaint, dated April 2, 1957, against
Beth E. Richards, d/b/a Freightlines Equipment Company, herein called Respond-
ent, alleging that Respondent has engaged in unfair labor practices affecting com-
merce 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 charges were duly served upon Respondent, in response
to which Respondent filed an answer denying the unfair labor practices alleged.
Pursuant to notice, a hearing was held on May 6 and 7, 1957, at Scranton, ,Penn-
Sylvania, before the duly designated Trial Examiner. The General Counsel and
the Respondent were represented at the hearing and were given full opportunity
to examine and cross-examine witnesses and to introduce evidencebearing,on the
issues; they were also given opportunity for oral argument at the close of hearing
and to file briefs as well.'
Upon the entire record in the case, and upon the observation of the demeanor
of witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a sole proprietorship, is engaged in motor trucking business, with
its office in Scranton, Pennsylvania. Respondent performs exclusively for Richards
Freight Lines, Inc., a Pennsylvania corporation engaged as a common carrier with
freight terminals in New York, New Jersey, and Pennsylvania. Respondent's gross
income exceeded $1,000,000 and Richards Freight Lines' income exceeded $1,500,000
in 1956, more than half of the latter's income being derived from operations in
New York and New Jersey.
I find that Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 229, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO, herein called Local 229, is a labor
organization within the meaning of Section 2 (5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
John Richards, the husband of Respondent Beth E. Richards, has been in the
interstate trucking business for many years. Before 1951, he had been operating
in Scranton, Pennsylvania, as an individual proprietorship under the name of
Richards Motor Freight Lines; Richards Motor Freight Lines held ICC rights, owned
1 desire to acknowledge the helpful and able briefs filed by both the General Counsel
and the Respondent.
FREIGIITLINES EQUIPMENT COMPANY 1621
trucking equipment and facilities, and employed drivers. Richards had some finan-
cial difficulties in 1951 and underwent a proceeding under chapter 11 of the Bank-
ruptcy Act in connection with which a receiver was appointed to operate the business.
Richards ' motor equipment was repossessed , meanwhile ; and in 1952 the receiver
laid off all of Richards ' drivers and operated on a reduced scale afterwards with
leased operators.
Sometime in May or June 1952 Richards organized Freightlines Equipment Com-
pany in his wife's name, he was still in receivership - at the time, and he arranged for
Freightlines Equipment Company to take over some of his repossessed equipment.
This operation was based in Delaware, New Jersey, a small town across the Penn-
sylvania-Jersey line, about 50 miles from Scranton . Richards hired drivers for this
Delaware operation from both the Scranton and the New Jersey areas. The men-
tioned receivership concluded in December 1953, and at about this same time
Richards organized and became sole owner of Richards Freight Lines , Inc., which
organization succeeded to the ICC rights formerly held by Richards Motor Freight
Lines. Freightlines Equipment Company leases all its trucks and. drivers to Richards
Freight Lines, Inc., which does not itself have employee drivers.
There was a gradual improvement in Richards ' business following the afore-
mentioned reorganization events of December 1953, and he expanded his operations
accordingly. By 1954 Richards was bringing the equipment of Freightlines Equip-
ment Company to Scranton for servicing and he began to dispatch many runs out
of Scranton , where the dispatching and maintenance setup is presently located. In
early 1956 Freightlines Equipment Company acquired other equipment and hired
additional drivers, mostly from the Scranton area, and by September 1956 Freight-
lines Equipment Company had 33 drivers, most of whom were working out of
Scranton on trucks based in Scranton . Richards still maintains some facilities- at
Delaware, New Jersey, and he also has other terminals in New Jersey, New York,
and Pennsylvania.
George Morgan is operating manager of Richards Freight Lines, Inc. He directs,
all the work done by Freightlines Equipment Company and it is he who actually
hires and supervises the latter 's drivers.
On or about September 8, 1956, as more fully discussed hereinafter , Freightlines.
Equipment Company laid off the newly hired drivers involved in this case and
replaced them with drivers who had been in Richards' employ at the time of the.
mentioned bankruptcy proceedings and whom the receiver had laid off in 1952.
Labor Relations History
Before his business reverses and resulting bankruptcy in 1951, Richards had collec-
tive-bargaining agreements covering his Scranton operations with Teamsters Local
229, the last such contract having been executed in October 1950. Local 229's
geographical area is Scranton and' vicinity and the mentioned 1950 agreement, a
so-called master agreement , recites that it was between Local 229 and "Inter-State
Trucking Companies of Scranton and vicinity." Each employer party to the agree-
ment , including Richards , separately signed the so-called master agreement, and
the record discloses that Richards is not and has not been a member of any trucking
association confined to the Scranton area. The contract phrase, "Inter-State- Truck-
ing Companies of Scranton and vicinity ," is therefore descriptive only and does not
connote the existence of an employer or trade association of that name and also
does not otherwise denote membership by Richards in any such organization or
association . The 1950 contract was for a 2-year term with a renewal provision for
yearly periods in the absence of notice to the contrary ; the contract contained a
union-shop provision and also provided , inter alia, for seniority practices in con-
nection with which Richards was required - fo maintain , and he did maintain, a
seniority list of his employees based on their comparative employment ' with the
Company. All of Richards' drivers were members of Local 229 at the time of their
layoff by the receiver in 1952, as required by the' 1950 contract; and during that
period Richards made available to Local 229 the seniority standings of his drivers,
also in conformity with the 1950 agreement.
Richards, either personally or under a trade name' or under the receivership, had
no employee drivers in Scranton from about January 1952 until sometime in 1954.
Local 229 and ' the other employer signatories to the 1950 contract executed sub-
sequent industry contracts ; the last such contract was negotiated and executed in
or about October 1955 by' a newly formed association of Scranton truckers in behalf
of the association's members . These successive contracts were executed - after Local
229 had given notice of termination of, the 1950 agreement to, all employer parties
thereto except, Richards . Richards was not given such notice because, as' Local
229's business agent (Joe McHugh ) testified , Richards was not operating in
Scranton at the time . Richards did enter into a new contract with Local 229 in
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 1956 , similar to the mentioned October 1955 agreement ; but this is of
no relevancy , as such agreement was executed after the events under considera-
tion here.
Joe McHugh has been Local 229's business agent for more than 15 years. After
Richards resumed his Scranton operations , as stated above, some of the drivers,
who had been laid off by the receiver in 1952, told McHugh that they desired to
return to Richards ' employ. McHugh discussed the matter with Richards. Mean-
while, Richards ' new drivers endeavored to join Local 229 and to have Local 229
represent them in dealing with Richards ; but McHugh informed them that Local 229
could not represent them as he considered the employees laid off in 1952 to have
preference for Scranton jobs with Richards on the basis of their greater seniority
at the time of their layoff in 1952.
After Richards' business expanded and he acquired new equipment and hired addi-
tional drivers in 1956 and he in effect otherwise resumed his Scranton operations, as
set forth above, Richards nevertheless sought to have this Scranton operation be con-
sidered a Delaware, rather than a Scranton, operation and he stated this position in
his discussions with McHugh . Richards meanwhile had been advising the newly
hired drivers that "we had to be very careful to maintain our Delaware status, be-
cause any change in that would bring us up against a seniority problem" vis -a-vis the
drivers laid off in 1952. Gerald Power, one of the drivers who was laid off on
September 8, 1956, thus testified to his awareness that Richards ' "former em-
ployees . . . thought they had seniority to come back on our jobs"; upon being asked
when he was "first aware of the seniority problem," Power replied- "Well, that has
been a standing thing since Mr. Richards went bankrupt in 1951, and he started back
up into a new business , a new company , I knew it right along."
There were further discussions regarding the seniority matter between Richards and
his new employees and between Richards and McHugh. In August 1956, a com-
mittee of employees representing his current employees advised Richards that they
and McHugh had attended a meeting in Philadelphia with the "International Brother-
hood" to discuss the seniority question ; the committee informed Richards that the
"International Brotherhood" would hand down a decision on the matter and that the
present employees would be governed by the decision. Richards then told the com-
mittee that the present employees would probably lose their jobs, whereupon the com-
mittee replied that they were nevertheless "satisfied to be governed by whatever the
decision was." McHugh thereafter informed Richards that Richards' Scranton opera-
tion was in fact a Scranton operation (and it was) and that the former drivers were
to be recalled for Scranton employment in preference to the current drivers with less
company seniority.
A short while later, on or about August 25, Richards offered to transfer all Scran-
ton-based drivers to Delaware, which was beyond the jurisdiction of Local 229; 19
drivers accepted such transfer, 14 2 did not. By letter dated September 8, 1956,
Richards notified the drivers who did not transfer as follows:
This will notify you that effective week ending September 8, 1956, your
services will no longer be required.
Future operations of FREIGHTLINES EQUIPMENT based at Scranton ter-
minal will be by drivers of Local 229.
This action was brought about by orders from National Headquarters of
Teamsters & Chauffeur Union.
Wages due will be available Monday, September 10, 1956 at I P. M.
Sometime before September 8, 1956, and after discussing the matter with Richards,
McHugh contacted and held several meetings with all drivers 3 appearing on Richards'
1952 seniority list to ascertain which drivers desired to return to Richards' employ; in
doing so , McHugh also contacted former drivers on the seniority list who had left the
Scranton area to work elsewhere and also those drivers who had meanwhile taken out
withdrawal cards from Local 229 Fifteen of Richards' former drivers indicated
their desire to return to Richards ' employ and McHugh submitted their names to
Richards On instructions from Richards, Morgan (the operating manager) ar-
ranged the 15 names in accordance with the seniority standings shown by the Com-
pany's personnel records and without regard to their present membership or non-
membership in Local 229. Richards then recalled the 8 highest men on the list and
somewhat later recalled the 4 next highest men All of the men recalled had greater
seniority with Richards than any of the men replaced, some of the recalled drivers
having had as much as 20 years' employment with Richards. Richards testified that
2 The complaint alleges discrimination only as to 11 of these drivers
3 McHugh was unable to contact 1 or 2 of these individuals until a short while later.
FREIGHTLINES EQUIPMENT COMPANY 1623
the replaced drivers were laid off rather than terminated and that they take their
.respective places on the seniority list for purposes of further recalls.
Upon receiving a copy of the charge in this case and an accompanying letter from
the Board's Regional Office, Richards replied as follows on January 16, 1956:
This will acknowledge your letter of January 11, 1957, and copy of charge
made by William R. Bray.
It would seem that this matter would be primarily with Local 229 of the
Teamsters Union in Scranton, since this was a matter which was handled accord-
ing to instructions that I received from Local 229; and drivers who lost their jobs
were replaced by members of Local 229 who were former employees of the
company.
And, on February 15, 1956, Richards sent another letter to the Regional Office, read-
ing as follows:
As outlined in our discussion on the telephone, regarding the driver's com-
plaint you are handling, my position is as follows:
These drivers, apparently went to the executive offices of the International
Brotherhood of Teamsters. They were referred to Local 229 in Scranton, who
notified me they were not accepting new members, but wanted former drivers of
the company put back on the job and also, a contract claiming jurisdiction in the
Scranton area.
The drivers who were working were offered positions in New Jersey, outside
of the jurisdiction. A number accepted, however the drivers who filed their
complaint with you refused. Accordingly, I do not feel there is any respon-
sibility on the part of the company for their loss of work. I also feel that this is
a matter between these drivers and Local 229, as their position at the time of
the trouble was that their members go back on the job and I would have had a
labor tieup if their demands were not met. Local 229 made no attempt to
interfere with the men who were kept on the job, but removed from their
jurisdiction.
Of course, there are many more details to this matter, however the above is
the part that I can speak of from my own knowledge.
If there is anything further we can do it will receive our full cooperation.
Also, enclosed is statement you prepared for George Morgan.
Richards testified that he recalled his former employees because "they were the
senior men as far as the situation at that time was concerned" and not because they
were Local 229 men, and he further testified that he was also governed by the afore-
mentioned position stated by the committee of the new employees to Richards, namely,
their willingness to be governed by the "International Brotherhood" determination.
Conclusions
Mindful that the layoff notice of September 8, 1956, and that Richards' two letters
to the Regional Office suggest, if not state in so many words, that the drivers were
laid off on September 8 to make room for members of Local 229, I nevertheless
find on the basis of all the facts and circumstances here that union membership in
Local 229, or the lack of it, of either the replaced or the recalled drivers, played
no part in the determination of either Respondent or Local 229 to effect such replace-
ment. I conclude, rather, that Respondent laid off the individuals named in the
complaint because of Local 229's insistence that the driver jobs in Richards' Scranton
operation be filled on an employment seniority basis; and I find that Respondent
effected the layoffs and recalls on such basis after making its independent deter-
mination of the drivers' respective standings.
It is apparently agreed by all parties that there would not be a"violation here if
the seniority provisions of the 1950 contract remained operative in September 1956
when the events under consideration occurred. The parties disagree, however, as
to the effectiveness of the contract at that time. Respondent asserts that, by its own
terms, the 1950 contract continued in force until terminated by notice as provided in
the agreement. In support of its claim that the contract remained operative, Re-
spondent relies on the fact that neither Local 229 nor Respondent gave termination
notice to the other even though Local 229 had served such notice on the other em-
ployer parties to the 1950 agreement and executed subsequent agreements with them.
The General Counsel, on the other hand, in asserting the inoperativeness of the 1950
contract in 1956, points to the difference in business identities between John Richards
d/b/a Richards Motor Freight Lines (party to 1950 contract) and Beth E. Richards,
d/b/a Freight Lines Equipment Company (nominal employer of the drivers in 1956);
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he also relies on the fact that Richards Motor Freight Lines became defunct and
ceased to exist as such for several years before September 1956 and he also refers
to the fact that, by whatever name the business enterprise be known, Richards had
no driver employees covered by the 1950 contract in the Scranton area for several
years. I have no question but that John Richards is and was the real party in interest
in the variously named enterprises involved here and that all these businesses were
his. However that may be, I also have no question but that the 1950 contract be-
came a nullity and was impossible of performance upon Richards' receivership and
the layoff of his drivers by the receiver and during the subsequent period of several
years during which Richards' Scranton business was defunct and he had no employee
drivers there. I accordingly sustain the General Counsel's contention that the re-
newal provision of the 1950 contract did not operate to renew such agreement for
defunctness of a necessary party thereto and I conclude on this issue that no opera-
tive contract existed in September 1956 between Respondent and Local 229.
Coming now to the ultimate issue in this case, I shall attempt to illustrate the
problem by a series of hypothetical situations.
Suppose an employer lays off all his employees for economic reasons and later
resumes operation with new employees. His former employees call upon him for
jobs and in this discussion with him they mention their long, faithful service in his
employ. The employer is persuaded by this appeal, whereupon he lays off the new
employees and recalls the older ones in the order of their past employment with
him. Clearly this conduct would not violate the Act as it in no way may be said "to
encourage or discourage membership in any labor organization" within Section
8 (a) (3) of the Act.
Suppose the employer in our first hypothetical refused to accede to his former
employees' request, whereupon they tell him that they will publish their appeal in a
local newspaper in order to win public support for their position. The employer
thereupon capitulates and agrees to lay off the new employees and to recall his.
former (more senior) employees in the order of their past employment, which he
does. Certainly there is nothing here to support a finding of encouragement or
discouragement in any labor organization within section 8 (a) (3) of the Act.
It may therefore be concluded that, if Respondent had taken the layoff and recall
action in September 1956 without union insistence or suggestion or any other union
involvement, such conduct clearly would not have violated the Act, even though
Respondent's action might have been caused by the concerted action set forth in the
second hypothetical.
Suppose, to continue our supposititious situations, an employer and a union have
a valid contract with seniority provisions. Instead of recalling a laid-off employee,
as required by the contract, the employer violates the contract by hiring a new em-
ployee. The union calls a meeting of the employees to consider the situation and
the employees decide on strike action to support the laid-off employee who was
entitled to be recalled under the contract. The union communicates the employees'
strike intention to the employer, whereupon the employer lays off the newly hired
employee and recalls his laid-off employee. I scarcely believe this action to violate
Section 8 (a) (3) even though done at the union's insistence and even though the
newly hired employee was laid off for reasons other than "his failure to tender the
periodic dues and initiation fees uniformly required as a condition of acquiring or
retaining [Union] membership" (Section 8 (b) (2) of the Act).
So far as I can ascertain from a study of Board decisions, including those cited in,
the General Counsel's brief, I am unable to find a square line of authority to support
his proposition that employment action by an employer, which is not otherwise un-
lawful under the Act, necessarily becomes a violation merely because a union caused'
the employer so to act. There are, it is true, dicta to such effect; square holdings, I do,
not find. The General Counsel also relies on the Radio Officers case 4 as holding
that it is "unlawful to hire one union member as against another union member
merely because one is sponsored by the union" (General Counsel's brief, 5). But
the facts in the Radio Officers case show more to have been involved there than a
union supporting the job preference of an employee having greater unemployment
seniority than another union member (Fowler); in that case, unlike the instant one,
the seniority practice sought to be enforced was part of the obligation of union mem-
bership; moreover, the union in the Radio Officers case attempted to take away
Fowler's union membership and it also told him in effect that he would never obtain-
4 The Radio Officers, Union of the Commercial Telegraphers Union, AFL (A. H. Bull'
Steamship Company ) V. N. L. R B., 347 U. S. 17, affg. 196 F. 2d 960 (C. A. 2), enfg. 93.
NLRB 1523
CONSOLIDATED CHEMICAL INDUSTRIES 1625
`employment with the steamship line which had hired Fowler, and with which the
union was under contract , and it later told him , in effect , that a consequence of his
violating union policy (" 'trying to break the Union ' by going to the Frances without
first getting a 'clearance ,' and by thus knocking another member out of a job") was
that he would never obtain employment with any other companies under contract
with it ( 93 NLRB 1523 , 1538-1539 ). Speaking of the Radio Officers and the com-
panion Teamsters cases, the Court stated: "In each case the employer discriminated
,upon the -instigation of the union. The purposes of the unions in causing such dis-
crimination clearly were to encourage members to perform obligations or supposed
obligations of membership . Obviously , the unions would not have invoked such a
sanction had they not considered it an effective method of coercing compliance with
union obligations or practices" (347 U. S. 52). [Emphasis supplied.]
The General Counsel 's position is in effect a "per se" doctrine , namely a violation
follows union causation . Trial Examiner Arthur Leff explored this proposition
'learnedly and exhaustively in Studebaker Corporation , 110 NLRB 1307 , 1322-1327;
I agree with , and hereby adopt , his analysis and see no reason to repeat it here.
He concluded , as I do in this case, that an employer does not violate Section 8 (a) (3)
,of the Act where allegedly discriminatory conduct taken at the behest of a union is
"unrelated to any aspect of union membership or union fealty , and within the Com-
;pany 's allowable freedom of action" (110 NLRB 1307, 1327) .5 In a subsequent
case , Daugherty Company, Inc., 112 NLRB 986, 989, involving discharge action
caused by a union , the Board sustained Trial Examiner ( now Board Member ) Bean's
holding that "A finding of causation does not ipso facto lead to the conclusion .
.that since the discharges resulted from other reasons and inducement thereof than
failure to pay dues, Section 8 ( a) (1) and ( 3) and 8 ( b) (1) (A) and ( 2) of the
Act were transgressed" ( 112 NLRB 1003 ). Distinguishing the Radio Officers' case,
the Board held: "As these employees were thus discharged for reasons unrelated to
union membership or the performance of union obligations , we find that the Re-
spondent Company did not discriminate against them to encourage union member-
ship within the meaning of Section 8 (a) (3)" (112 NLRB 986, 989).
I find that Respondent 's action here was based on objective criteria of seniority
standings ,6 which Respondent itself ascertained , and that these seniority standings
were not referrable to considerations of union membership or fealty. Whether or
not such objective criteria are prescribed in a current or even a former agreement,
1 conclude that Respondent 's conduct in this case does not violate Section 8 (a) (3)
and (1 ) of the Act .7
[Recommendations omitted from publication.]
5 The Board did not reach this issue in the Studebaker case and, without expressing
any opinion regarding it, specifically reserved ruling thereon.
9 See Local 542 , International Union of Operating Engineers , AFL (Koppers Company,
Inc ), 117 NLRB 1863, regarding "an objective criterion unrelated to union membership."
4 One of the alleged discriminatces , Bought, was laid off on September 1, 1956, and
Respondent asserts that Rought's layoff was for economic reasons Essentially , however,
Rought's case is in the same legal position as that of the other alleged discriminatees.
whether the complaint be sustained or dismissed.
Consolidated Chemical Industries, Division of Stauffer Chem-
ical Company and Oil , Chemical and Atomic Workers Inter-
national Union , AFL-CIO. Case No. 39-CA-626. June 25, 1958
DECISION AND ORDER
On January 17, 1958, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
120 NLRB No. 213.