International Brotherhood of Teamsters

National Labor Relations Board - Board Decisions

Aug 29, 1958

121 N.L.R.B. 727 (N.L.R.B. 1958)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS 727
3 By causing Lumber Yard Supply Company to discriminate against Ronald
Kienow and Lloyd E Ferguson in violation of Section 8 (a) (3) of the Act, as
found above, Local 13 has engaged in unfair labor practices within the meaning of
Section 8 (b) (2) of the Act
4 By restraining and coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act as found above, Local 13 has engaged in unfair labor ptac-
tlces within the meaning of Section 8 (b) (1) (A) of the Act
5 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Sections 2 (6) and 2 (7) of the Act
[Recommendations omitted from publication I
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America ; Central States Drivers'
Council ; and International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Over-the-Road
and City Transfer Drivers, Helpers, Dockmen and Warehouse-
men, Local No. 147 and Clark Bros. Transfer Company. Case
No I7-OC-60 August 29,1958
DECISION AND ORDER
On May 8,1958, Trial Examiner Eugene E Dixon issued his Inter-
mediate Report in the above-entitled proceeding finding that Respond-
ent Council and Respondent Local 1 had engaged in and were engaging
in certain unfair labor practices and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto The Trial Exami-
ner also found that Respondents had not engaged in certain other
unfair labor practices and recommended that the complaint be dis-
missed with respect thereto. Thereafter, the General Counsel and
Respondents filed exceptions to the Intermediate Report and sup-
parting briefs
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Bean, and
Fanning]
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
Intermediate Report, the exceptions and briefs, and the entire record
in the case 2 and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following addition
1 The Trial Examiner found that Respondent International had not engaged in any
unfair labor practices As the General Counsel has not , excepted to this finding of the
Trial Examiner, we adopt it pro forma
2 Respondents' request for oral argument is denied because the record , the exceptions,
and the briefs adequately present the fssues and the positions of the parties
121 NLRB No 92
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence set forth by the Trial Examiner was sufficient to
establish a prima fame case of violation of Section 8 (b) (4) (A) on
the part of the Council and the Local 3 The burden then shifted to
the Respondents to come forward with sufficient evidence to dispel the
effect of this prima facie case 4 Although such evidence if available
was within the reach and control of Respondents they made no attempt
to present it, but rested their case at the close of the General Counsel's
presentation of his evidence Accordingly, we adopt the Trial Exam-
iner's finding that Respondents Council and Local violated Section 8
(b) (4) (A) of the Act by inducing and encouraging the employees
of Bos Lines, Inc, and Burlington Truck Lines, Inc, to engage in a
strike with an object of forcing these companies to cease doing busi-
ness with Clark Bros Transfer Company and other nonumonized
motortruck common carriers 5
We also find no merit in Respondents' affirmative defense that the
"hot-cargo" provisions in their collective=bargaimng agreements with
Bos and Burlington lawfully entitled them to induce the employees
of these companies to refuse to handle goods of nonunion carriers
The United States Supreme Court has recently affirmed the holding of
the Board that "hot-cargo" clauses are ineffective as a defense to
secondary boycott allegations 6
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor-Relations Act, as amended, the National Labor
Relations Board hereby orders that Central States Drivers' Council,
and International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Over-the-Road and City Transfer
a In making findings the Board is not restiieted to considering only direct evidence
It may also rely on circumstantial evidence N L R B v Abbott Worsted Mills, Inc,
127 F 2d 438, 440 (C A 1) , N L R B v Lank Belt Company, 311 U S 584, 602
4 See Jasper National Mattress Company, 89 NLRB 75, 77
,Pard Member Rodgers agrees that Respondents Council and Local violated Sec-511
tion 8 (b) (4) (A) of the Act To establish the illegality of the Respondents' acts,
including the unlawful purpose of the walkouts here involved-i e, that they had as
their purpose the forcing of Bos and Burlington to cease doing business with Clark and
other nonunion carriers-Member Rodgers relies exclusively on events which occurred no
earlier than 6 months before the filing of the original charge herein and its service upon
the parties on May 6 1957 In this connection, Member Rodgers notes in particular the
admission made by Kavner, the Council's agent, on January 30 or 31, 1957, in the course
of a telephone conversation with Martin, Bos' terminal manager in Omaha As set forth
in detail in the Intermediate Report, when Martin asked Kavner the reason for the
Des Moines walkout, Kavner replied, "Well hasn't John Bridge warned your company of
doing business with Romans and Clarks9"
Like Member Rodgers, Members Bean and Fanning find that the events occurring within
the 6 month period f^^rreceding the filing of the charge in this case, are sufficient to find a
violation In adostion, however, they rely, as did the Trial Examiner, on events occurring
before that period but only as background
'Local 1976, Unsted Brotherhood of Carpenters , etc v N L R B (Band Door & Ply-
tvood Co ), 357 U S. 93
INTERNATIONAL BROTHERHOOD OF TEAMSTERS' ` 729
Drivers, Helpers, Dockmen and Warehousemen Local No. 147, their
officers, -representatives, agents, successors, and assigns shall :
1. Cease and desist from : r
(a) Engaging in, inducing or encouraging the employees of Bos
Lines, Inc., Burlington Truck Lines, Inc., or any employer other than
Clark Bros. Transfer Company to engage in, a strike or concerted
refusal in the course of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, mate-
rials, or commodities, or to perform any services, where an object
thereof is to force or require Bos Lines, Inc., Burlington Truck Lines,
Inc., or any other employer or person to cease doing business with
Clark Bros. Transfer Company or any other similar common carrier.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : -
(a) Post at their business offices and meeting places, and all other
places where notices to their members are usually posted, copies of
the notice attached hereto marked "Appendix A."' Copies of said
notice to be furnished by the Regional Director for the Seventeenth
Region shall, after being duly signed by official representatives of
both Respondents be posted by the Respondents immediately upon
receipt thereof and maintained by them for a period of sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to their members are customarily posted. Reasonable
steps shall be taken by the Respondents to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Seventeenth Region
signed copies of the notice attached hereto marked "Appendix A" for
posting at the business offices of Bos Lines, Inc., Burlington Truck
Lines, Inc., and Clark Bros. Transfer Company, the companies willing,
for sixty (60) consecutive days, in places where notices to employees
are customarily posted. Copies of the notice, to be furnished by
the Regional Director for the Seventeenth Region, shall be returned
forthwith to the Regional Director after they have been signed by
the official representative of the' Respondent Union for said posting.
(c) Respondent Council shall also send to each of its constituent
or member locals copies of the notice attached hereto marked "Appen-
dix A" to be furnished by the Regional Director for the Seventeenth
Region and duly signed by an official representative of the Council,
with directions by the Council to post said copies of the-notice in
each of the constituent or member locals' business offices, meeting
places, and other places where notices to their employee members are
z In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customarily posted Respondent Council shall further Instruct said
locals that these notices shall be posted by the locals immediately
upon receipt thereof and be maintained by them for a period of sixty
(60) consecutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted Reason-
able steps shall be taken by said locals, upon the direction of
Respondent Council, to insure that the notices are not altered, defaced,
or covered by any other material
(d) Notify the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order what steps
Respondents have taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, has violated any section of the Act, and insofar as it alleges
that Respondents Central States Drivers' Council and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Over-the-Road and City Transfer Drivers, Helpers,
Dockmen, and Warehousemen, Local 147 have violated Section 8 (b)
(4) (B) and (b) (1) (A) of the Act
APPENDIX A
NOTICE To ALL MEMBERS OF CENTRAL STATES DRIVERS' COUNCIL, TO
ALL MEMBERS OF INTERNATIONAL BROTHERHOOD of ' TEAMSTERS,
CHAUFFEUlis, WAREHOUSEMEN AND HELPERS OF AMERICA, OVER-
THE-ROAD AND CITY TRANSFER DRIVERS, HELPERS, DOOKMEN AND
WAREHOUSEMEN, LOCAL No 147, To ALL MEMBERS OF ALL OTHER
LOCAL UNIONS AFFILIATED WITH CENTRAL STATES DRIVERS' COUN-
CIL, AND TO ALL EMPLOYEES OF Bos LINES, INC, BURLINGTON
TRUCK LINES, INC, AND CLARK BROS TRANSFER COMPANY
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 you that
WE WILL NOT engage in, or induce or encourage the employees
of Bos Lines, Inc, Burlington Truck Lines, Inc, or any employer
other than Clark Bros Transfer Company, to engage in a strike
or concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle, or work on
goods, articles, materials or commodities, or to perform any
services for their respective employers, where an object thereof is
to force or require said employers or any other employer or
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 731
person to cease doing business with Clark Bros. Transfer Com-
pany or any other similar common carrier.
CENTRAL STATES DRIVERS COUNCIL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, OVER-THE-
ROAD AND CITY TRANSFER DRIVERS,
HELPERS, DOORMEN AND WAREHOUSE-
MEN, LOCAL No. 147,
Labor Organization.
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 Clark Bros. Transfer Company (herein called Clark),
the General Counsel of the National Labor Relations Board (herein called the
General Counsel and the Board, respectively) by the Board's Regional Director
for the Seventeenth Region issued a complaint dated December 27, 1957, against
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America; Central States Drivers' Council; and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Over-the-Road
and City Transfer Drivers, Helpers, Dockmen and Warehousemen, Local No. 147
(herein jointly referred to as Respondents and sometimes individually as the Inter-
national, the Council, and the Local, respectively), alleging that Respondents had
engaged in and were engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (b) (1) (A), 8 (b) (4) (A) and (B), and 2 (6) and
(7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act.
Copies of the complaint, charges, -and a notice of hearing were duly served upon
the parties.
With respect to the unfair labor practices, the complaint alleges that since Jan-
uary 30, 1957, Respondents, acting jointly as well as severally, have engaged in
or induced or encouraged the employees of Bos Truck Lines,' Burlington Truck
Lines, Inc. (herein called Bos and Burlington, respectively) and other unnamed
employers to engage in a strike or a concerted refusal in the course of their em-
ployment to transport or otherwise work on or handle any goods, articles, materials,
or commodities, or to perform any services the object being (a) to force or require
the named employers to cease doing business with Clark or other Nebraska car-
riers whose employees are not represented for purposes of collective bargaining
by any of the Respondents and (b) to force Clark and such other employers to
recognize or bargain with Respondents.
In their separately filed answers Respondents all deny any violations of law
and each pleads as a defense collective-bargaining contracts wth Bos and Burling-
1 Due to a recent reorganization and merger, the current name of this company is
Bos Lines , Incorporated. The applicability of the commerce figures herein for this com-
pany is not affected by the change in corporate structure or name.
732 DECISIONS OF NATIONATr LABOR RELATIONS BOARD
ton containing so-called "hot-cargo" clauses, These defenses became the subject
of a motion by the General Counsel to strike. The motion was not granted, not
because of any disagreement with or disrespect to the Board which has held that
such clauses are illegal per sea but because the clauses in question are being
reviewed by the Supreme Court and no reopening of the record would be neces-
sary if any change might result from such review before the Board disposes of
this matter
Pursuant-to due notice a hearing was held at Des Moines, Iowa, February 11 and
12, 1958 The Government and the Respondents werb represented by counsel.. All
parties were afforded full opportunity to be heard, to examine and cross-examme
witnesses, to introduce relevant evidence, to present oral argument at the close of
the hearing, and thereafter to file briefs as well as proposed findings of fact and con-
clusions of law- Subsequent to the hearing, Respondents and the General Counsel
filed briefs winch I have duly considered <
Upon the entire record in the case, and from my observation of the witnesses, I
make the following
FINDINGS OF FACT
I THE BUSINESSES INVOLVED
Clark Bros Transfer Company is a common carrier of freight by motor vehicle,
maintaining terminals at Norfolk and Omaha, Nebraska, operating in Nebraska only
InC1954 its total revenue was $262,84972, of which $70,f83775 was- from -mter-
limng, 3 in 1955 its total revenue was $286,345 80, of which $46,208 57 was from
interlining, in 1956 its total revenue was $217,41199, of winch $3,877 01 was from
.interlining, in 1957 its total revenue was $252,296 63 4 with $15,606 11 being derived
from interlining, $6,163 56 of which was derived from interlining with Nebraska
Shortlme Carriers, Inc, which began operations about February 1957
Bos Lines, Inc, and Burlington Truck Lines, Inc, are interstate motor earners
operating on certificates of authority from the Interstate Commerce Commission
Bos operates in five midwestern States including Iowa and Nebraska. In 1957 its
revenues exceeded $3,360,000 Its total dollar volume o€ business conducted at
its Des Moines terminal was $262,892, of which in excess of $130,000 was from
interstate business Its total interstate business exceeded $3,000,000 Burlington
operates in nine midwestern States, including Iowa and Nebraska It maintains ter-
minals in Des Moines, Iowa, and other places, and up to about January 1958, main-
tamed a terminal in Omaha, Nebraska. During 1955 its gross annual revenue was
$12,510,871 and its volume of business at its Des Moines terminal was $412,71173.
During 1957 its revenue for transportation of freight between different States ex-
ceeded $100,000 There is no question as to the Board's jurisdiction here
IL THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find that International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Central States
Drivers' Council, and International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Over-the-Road and City Transfer Drivers,
Helpers, Dockmen and Warehousemen, Local No 147, are labor organizations with-
in the meaning of Section 2 (5) of the Act
III THE UNFAIR LABOR PRACTICES
Aside from such confusion as resulted from some obviously and painfully recon-
sidered testimony by at least one of the General Counsel's witnesses which conflicted
with a prior sworn statement given about these matters,5 there is little conflict in the
evidence here since the Respondents offered none
TTruck Drivers and Helpers Local Union No 728, etc (Genuine Parts Company),
119 ]'NLRB 399
3 The term "interlining" refers to receiving freight from interstate motor carriers for
delivery to its destination or delivering freight to such carriers for further transportation.
4 The record incorrectly shows a total of $219,296 63
r I have particular reference to the witness, Sampson, whose attitude on the stand
was one of awkward embarrassment as he disavowed his previous sworn statement
I might add that his uncertainty and professed lack of memory on the crucial part of his
testimony was quite incongruous with his detailed recollection and ready answers on
other phases of his testimony The essential part of his testimony that I credit and
accept (namely the gassing of the two identified Burlington trucks on the morning of
January 30) is supported by his written records made at or about the time-the events
occurred
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 733
The story for our purposes starts with a request by Teamsters Local 554 of Omaha,
Nebraska, to Clark in the fall of 1955, for recognition as the bargaining agent of
Clark's employees. Pursuant to this request a meeting took place between Clark
and the Union a week or two later. Representing the Union at this time were Albert
Parker, secretary-treasurer of Local 554, and Richard•Kavner, who was identified as-
a representative of the Central'States Council of Teamsters.6 Kavner claimed that
the Union represented a majority of Clark's employees and wanted a contract. Clark
refused in the belief that the Union did not represent a majority of the employees.
At this meeting Kavner told Clark of the Union's "program to organize all of the-
nonunion trucklines in Nebraska, stating that (Clark) had from six months to two,
years to survive without a contract." The Union's unsuccessful attempt at this time
to get recognition resulted in a picket line at Clark's Omaha terminal starting about
the middle of September 1955. It was out of this situation that charges were filed
by Clark which resulted in an 8 (b) (4) (A) and (B) order December 26, 1956,
against Local 554, reported at 116 NLRB 1891.
On July 11, 1956, while the picket line was still in existence, a meeting occurred
between Clark and one John Bridge, executive chairman of an organization called
the Motor Carrier's Labor Advisory Council of Chicago. This meeting was arranged
by Watson Brothers Transportation Company, a union employer. Bridge at this
time offered to represent Clark as labor advisor at $15 a month. Clark declined
until such time as their men "were represented by a union." As a result of the picket
line activity, Clark's business declined to such an extent as to necessitate the layoff of
nine employees in late 1955 and early 1956-a reduction of 20 percent or more.
On January 29, 1957, W. F. Clark testified at an ICC hearing at which Kavner
was present. In his testimony Clark mentioned both Bos and Burlington as union
firms he interlined with.? On January 30, both Bos and Burlington' s terminals in
Des Moines were closed down by walkouts. It is these walkouts that the General
Counsel alleges were instigated by the Respondents for the purpose of forcing Bos
and Burlington to cease doing business with Clark.and to force Clark to recognize
Respondents.8 In support of this allegation,, besides the foregoing background, the
General Counsel adduced the following evidence, none of which directly implicates
Respondents but all of which, according to-the General Counsel, when considered as
a whole is sufficient to permit an inference that the Respondents committed the unfair
labor practices alleged .9
The Walkouts
(a) Burlington
At about 8:45 a. in., January 30, Gunner Vignaroli, Burlington 's Des Moines
terminal manager, discovered that his "boys were punching out and going home."
Vignaroli asked them "why they were going -off the job" and was told that "they
were told to clock off." "What happened fellows, did I do something wrong that
you are walking out on me?" he asked the men, "Have I been unjust to cause a
walkout on me?" "No," they replied, "we're just, walking off." Vignaroli then
called Dick Conn, president of Local 147, and told him, "Dick, . . . I believe I'm
having a walkout . . . have you heard anything about it?" Conn said he had "just
heard about'i_t'•' and that he would. "get hold of the men to get them back to work to
see what it is all about." Vignaroli said that he "would sure appreciate it," and that
he "would like to know what the cause was if possible." Vignaroli was aware of
no outstanding grievances or complaints by the men at this time.
6 This is according to the testimony of W. J. Clark, a copartner of the Charging
Party Respondents attack any identification of Kavner as an agent of Respondents on
the basis of this testimony as being hearsay and incompetent. The objection was not
pressed when the General Counsel stated that the evidence was only being "offered by way
of background" since it occurred outside the 10 (b) period. Kavner's agency will be
discussed later.
9 At the time of the facts alleged and at the time of the bearing both Bos and Burlington
had collective-bargaining agreements with the Central States Drivers' Council and pre-
sumably with the various locals under whose jurisdiction they operate including Local 147.
s It was stipulated that -none of the Respondents, jointly or severally, has been certified
under Sections 9 _of 'the Act as bargaining agent of Clark's employees.
9 As pointed.out°'in Hartsell Mills Company v. N. L. R. B., 111 F. 2d 291 (C. A. 4) at
page 293, direct evidence of a purpose to. violate the Act is rarely obtainable. As a result
circumstantial evidence may be considered in arriving at a conclusion that an unfair labor
practice has been committed.
734 DEOI8IONS OF NATIONAL LABOR RELATIONS BOARD
Later Vignaroh heard that the men were going to a union meeting That after-
noon about 4 o'clock Conn called and told Vignaroh that the men would be back to
work the next morning but that "he knew nothing of what the walkout was about or
what it was for, but the boys would go back to work " Vignaroh was also told by
Conn that the Union had not authorized the walkout.
From the testimony of Max Woodrow Sampson , the manager of the Kecks 66
Service Station in Des Moines which services Burlington trucks, it appears and I
find that he serviced two of Burlington 's trucks on the morning of January 30 One
he identified as number 969 driven at that time by Charles Dewey, and the other
as number 3146 whose driver he did not identify While he was servicing either
,one or the other of these two trucks, a 1956 "pink and ivory" Ford drove in The
driver of the Ford told the truckdriver to "go back to the dock, that there was a
walkout " The truckdriver told Sampson that the driver of the Ford "was a man
from the union office " He also "said something about Dick but there was no last
name mentioned at all''
Both the drivers whose trucks were serviced by Sampson that morning were called
as witnesses by the General Counsel Charles Dewey, the one whom Sampson had
originally sworn was present when the "pink and ivory" Ford drove into the service
station, denied that such was the case, claiming that he did not know of the walkout
until he returned to the terminal sometime between 8 and 9 o 'clock that morning 10
Albert L Thomas, the other driver whose truck was serviced by Sampson that
morning, testified that as he was leaving the terminal lot with his loaded truck he
was told by a returning driver (either Derwin Vert or Charles Dewey ) that there
would be no work that day He continued on to the service station, had his truck
serviced , got a cup of coffee , and returned to the terminal Both Thomas and
Dewey punched out upon their return to the terminal , but not at anyone's specific
suggestion As Thomas put it, "Everybody else was punched off the clock, so I
punched off " Neither of these witnesses would admit knowing or ever having
been told the reason for the walkout Moreover, they both testified that their
return to work the next day was not at the request of anyone but apparently was a
spontaneous or intuitive act As put by Dewey, the "general consensus of opinion
seemed to be that we would return the next morning, and I went down on the chance
that we would " According to their testimony , neither attended the union meeting
that day
(b) Bos
Equally in the dark as to the cause of , or the purpose for, the walkout was Leigh
Osborn , operations manager for Bas Lines Osborn , when he learned of the walkout,
immediately drove to Des Moines from his office in Marshalltown In Des Moines,
he tried to get in touch by telephone with officials of the Local but was unsuccessful
He then tried to call Hoffa in Detroit but learned that Hoffa was at a convention
in Miami Next he called Carl Keul in Minneapolis (whom he understood to be
an International representative whose jurisdiction covered Minnesota and Iowa)
getting his number either from the directory or the Local's receptionist Kent
"stated that he very definitely had no knowledge" of the walkout and suggested
that Osborn get in touch with John Bridge-that maybe Bridge might be able to
help him -
Later that day, Osborn finally contacted Chuck Kirschbaum , assistant business
agent for the Local. Kirschbaum was unenlightening , telling Osborn that "he had
no knowledge" of the walkout Another person called by Osborn on this occasion
was Albert Parker, treasurer of the Omaha Local 554 ii Osborn asked Parker
"if, to his knowledge , [die Bos] firm was in violation of the hot goods clause in
respect to the short line carriers " Parker's reply was that it was not in violation
of that clause of the contract to his knowledge
Osborn also had two telephone conversations with Kavner about the matter, one
in the evening of January 30 and the other the following morning 12 In these con
Dewey testified that he reported for work at 7 30 a in , loaded his truck, went to the
service station , gassed his truck, drank a cup of colree, and returned to the dock He
could not recall whether or not he made any deliveries
ii According to Osborn , this call was prompted by Keul 's suggestion that Osborn call
Bridge Just what the connection is. does not appear _
za The January 30 call apparently was spade by Osborn , while the January 31 call was
made by Kavner as appears from telephone company records about which more will be
said later Osborn was uncertain as to the order of the calls but his best recollection was
that Kavner called first , in the evening of January 30, introducing himself with the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 735
versations Osborn asked for an explanation of the walkout. Kavner "claimed no
no personal knowledge of it and suggested that [Osborn] contact John Bridge." In
this conversation Osborn indicated his "intention of discharging the employees who
had participated in their second unauthorized strike within nine months, as pro-
vided in the contract." 13 To this end, apparently on January 30, termination notices
were mailed- to the employees involved. The next day- all the striking employees
returned to work. Those to whom the notices were sent were not permitted to
punch in. In sympathy, the others refused to work. This situation presumably
gave rise to the second telephone conversation between Kavner and Osborn, this
one instituted by Kavner. At this time Kavner told Osborn that "because of those
previous warning letters, [Osborn] was forcing him to call this an authorized stop=
page." At the end of this conversation (Osborn apparently having capitulated
to Kavner's checkmate statement about authorizing the walkout), Kavner told Osborn
to "contact Dick Conn, and advise him that all the men were to return to work
immediately."
The same morning, after refusing to permit the men to go to work, Osborn also
was called over the telephone by Dick Conn of the Local. Conn told Osborn
that he "had better" put the men back to work. Conn also indicated that he had
discussed the matter with Kavner, "either that morning or the previous evening" and
that it was Kavner's "recommendation also, that the men be returned to work."' As
a result of these conversations the terminations were withdrawn and all the men
returned to work the next day. According to Osborn when Kavner made the state-
ment "that he had to call the walkout authorized," Osborn considered the walkout
authorized. On cross-examinatioL, however, Osborn admitted that pursuant to
article 8 14 of the union agreements under which his company was operating, he had
received a letter from the Local designating Tom Jones as the only person empowered
to authorize a strike. This designation had never been revoked or changed.
On the evening of the Bos shutdown or the day after, Walter Martin, then ter-
minal manager for Bos in-Omaha, had asked his home office what the trouble was in
Des Moines. Not wanting "to put it on the teletype what the trouble was" the com-
pany referred him to Kavner. He called Kavner at the Blackstone Hotel in Omaha 1e
and asked him the reason for the Des Moines walkout. Kavner's reply was, "Well,
hasn't John Bridge warned your company of doing business with Romans and
Clarks?"
In addition to the January 30 walkouts in question here, and the unauthorized
strike of June 1956, alluded to in Osborn's testimony as shown in footnote 13,-it
further appears from Osborn's testimony that another unauthorized walkout oc-
curred at the Bos Des Moines terminal February 4 to 6, 1957. The distinguishing
feature between the January 30 walkout and the other two 'suffered by Bos was, that
no reason was ever given for the January 30 walkout while a reason was given on
the June 1956 occasion and "verbal" grievances were presented in connection with
the February 1957 incident. Osborn explained that the "whole story (of these un-
authorized work stoppages) was an accumulation of incidents-certain concrete and
imaginative grievances" growing out of the "dovetailing of the seniority lists the
removal of roads-runs and road tractors" which resulted from the reorganization and
merger which had taken place in the company.
statement "This is Dick Kavner with the Teamsters, you know who I am." I do not
credit this testimony since it is apparent and I find that Osborn initiated the first call
to Kavner. In any event Osborn testified he knew Kavner by reputation "as being the
trouble shooter for Mr. Hoffa."
'J An unauthorized strike bad occurred in June 1956. Warning notices apparently had
been given the strikers on this occasion and the Company was now relying on article X of
the contracts allowing discharges after-a prior warning within a 9-month period.
14 There are two agreements involved, the Central States Area Local Cartage Agreement
and the Over-the-Road Motor Freight Agreement, both listing as parties the Company on
the one hand and the Central States Drivers' Council and the Local on the other. Article
VIII, section 2. of both agreements makes provision for written notice to the Company of
"the Union's authorized representatives who will -deal with the Company, make com-
mitments for the Union generally , and in particular have the sole authority to act for the
Union in calling or instituting strikes or any stoppages of work.. "
ss As the record will show,- Kavner was registered at the Cornhusker Hotel in Lincoln
on January, 29, 30, and 31. While Martin's original recollection was that he called
Kavner on the day or the day after the walkout, he later testified that his call was made
sometime prior to February 5. This explains the call to Omaha.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Bridge
The mysterious John Bridge's offer on July 11, 1956, as executive chairman of the
Motor Carrier's Labor Advisory Council of Chicago, to represent dark as labor
advisor for $15 a month has already been noted Kavner's and Keul's, reference of
Operations Manager Osborn of Bos Lines to John Bridge and Kavner similar referr
ence to Martin when both Martin and Osborn were trying to find out the cause of the
January 30 walkout have also been noted Other instances where the name of Bridge
came into the evidence in this matter are as follows 16
In July or August of 1956 Bridge called Operations Manager Osborn of Bos Lines
on the telephone to tell him that Bos was "violating certain specific procedures of the
contract by interlining freight with the so-called short line earners in Omaha," nam-
ing Roman, Clark, and Ford Storage and Transfer as he had previously done in a
letter to Bos on the same subject Although Bridge did not represent Bos at the
time of this call, Bos,had previously been his client. In October 1956 Bridge also
called Gerald Mattox, vice president of Bos Lines He asked Mattox if the latter
knew his company was interlining with nonunion carriers at Omaha and pointed out
that they could be shut down at other terminals because of it. Sometime between
the 15th and 30th of January 1957, Bridge again called Mattox in Marshalltown
about the same matter This time he specifically mentioned Bos' interlining with
Roman Transfer and stated that if Bos "didn't stop such interlinin g they would be
shut down at some other terminal "
Neil Holscher, terminal manager for the Wilson Truck System at Omaha, testified
about attending two meetings in February 1957, called by Bridge-one on the 5th,
the other on the 20th 17 Article IX of the contracts, the so-called "hot-cargo"
clauses, were discussed at both these meetings In the first meeting, Bridge "accused"
Wilson of interlining freight with Clark at Omaha and pointed out that if they "con-
tinued to interline freight with any of these nonunion carriers, there could be
reprisals" at their out-of-State terminals In the February 20 meeting there was a
committee report on the possibility of interlining freight in Nebraska with union
carriers The committee was to meet with Kavner to explore this possbility with
"the idea to cut down the haul of the non-unionized carriers, including Clark, to
the shortest distance possible "
Although his Company was no longer represented by Bridge, Martin attended the
February,5 and 20 meetings on behalf of Bos Lines at Bridge's invitation Bridge
mentioned that some of them "were still turning freight to non-union earners" citing
Wilson Truck System as an example On learning Martin's identity, Bridge pointed
him out as a man who could testify "that he was shut down" for using nonunion
carriers
Kavner's Telephone Calls on January 29, 30, and 31
The records of the Lincoln Telephone and Telegraph Company of Lincoln,
Nebraska, show four long-distance calls made by Kavner on January 29, 30, and 31
from the Cornhusker Hotel in Lincoln as follows
1 At 5 30 p in January 29 to Hoffa at Miami , Florida, duration of call 8 minutes
2 At 11 38 p in. January 29 to John Bridge at Cedar Rapids , Iowa, duration of
call 11 minutes
3 At 7 53 a. in January 30 to Richard Conn at Des Moines, Iowa , duration of
call, 2 minutes
4 At 8 15 a in January 31 to Leigh Osborn at Des Moores, Iowa, duration of
call 8 minutes
Except for the last call to Osborn, there is no indication what was said in any of
these conversations
Contentions and Conclusions
The General Counsel contends that the above telephone calls when fitted into the
composite picture of the entire record are a competent and probative part of the
-The General Counsel contends that Bridge is an agent of Respondents Although in
the circumstances here his conduct looks suspiciously like such agency' the, evidence is
not legally sufficient to establish that fact Accordingly, none of, Bridge statements or
conduct can be attributed to Respondents or bind them This does not mean, however,
that Bridge's activities are totally devoid of probative value in this record or are in-
competent evidence While no reliance can be made as to the truth of any statements
made by Bridge,_ the fact that he made the statements is important (as` will be seen) and
fully competent under the rules of evidence"
17 Bridge at the time represented Wilson in collective bargaining
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 737
substantial evidence adduced by the General Counsel clearly supporting the allega-
tions of the complaint . In substance the General Counsel 's argument is this: '
Respondents' failure to gain Clark's recognition "became a symbol of their failure
to unionize all truckers in Nebraska " as had been promised by Kavner in his 1955
meeting with Clark . Direct pressure failing, Respondents resorted to indirect pres-
sure .as shown by• the Board 's December 1956 order against Local 554,18 and the
events herein . The "situation was brought to a head" early in 1957 when Kavner
heard Clark testify in the I . C. C. hearing as to the "several unionized carriers with
whom his company was still able to interlme ." Kavner immediately called Hoffa in.
Miami, presumably to get his approval of some affirmative action . Late that eve-
ning Kavner called Bridge , presumably as Respondents ' agent in the "hot-cargo"
.clause department . The next morning at 7:53 "Kavner, having received Hoffa's
O. K. and having told Bridge what was expected of him," called Local 147. He in-
structed Conn of the Local that "Des Moines and the Bos and Burlington terminals,
there had - been selected for the administration of the object lesson in what happens to
unionized carriers who interline with nonunionized carriers ." A 1-day walkout was
ordered . Before Conn was able to pass on his instructions , however, the employees
had started work . Nevertheless , as soon as they received the word they walked out.
Then , according to plan , when the affected employers attempted to find out what was
"behind the walkout" they were "uniformly referred to Bridge ," who, presumably, as
an ostensible employer representative not connected with Respondents could and
would explain the reason for the walkout without fear of violating the Act or imput-
ing a violation to Respondents . In taking this position , the General Counsel claims
that the agency of Bridge , Kavner , and Keul has been clearly established by the
evidence and that the record shows that the three Respondents were working
in concert.
Respondents' contention in substance is that the agency of Kavner , Bridge, and
Keul has not been established by the evidence and that consequently the complaint
against the Teamsters and the Council must fall . With respect to the Local their
position is that "there is not a scintilla of evidence " to show that the Local authorized
the stoppages, the reason for them , or the basis for their settlement . Maintaining '
that the walkoulsi were unauthorized , Respondents point to the fact that they occurred '
in a pattern of such stoppages , all of which, including the ones in question, were ter-
minated by the intercessions and orders of the Local.
The 8 (b) (4) (A) Allegation
Although the case is not as clear as the General Counsel apparently believes,
I am convinced and find that the substance of his 8 (b) (4) (A) contention, at least
as to the Respondent Council and Local , is valid . In reaching the inference that these
two Respondents are guilty of that unfair labor practice I find that Kavner at all
times material was the agent of the Council . This fact first appears in the 1955,
meeting with Clark 19 and nothing in subsequent events serves to change his status.
His continued position of importance in the union hierarchy is shown by his au-
thoritative handling of the discharges meted out by Osborn and by Conn 's deference
to him in the -same matter . Indeed, Respondents tacitly admit Kavner 's agency when,
they claim in their brief that "`the only fair inference to be drawn from ( Kavner's
having stated that he was being forced to call the walkout at Bos `authorized')' is,
that Kavner was trying to prevent the discharge of employees even though they had
engaged in an unauthorized work stoppage ." (Emphasis in original .) As for Keul's
purported agency I make no finding since his action adds nothing to the case and
would not serve to bind the International.
Contrary to the Respondents , I am of the opinion that the record shows by sub-
stantial evidence the reason for the walkouts . Respondents ' purpose to prevent
interlining with Clark goes back to Kavner 's threat in 1955 , and is adequately demon-
strated by the illegal efforts of Local 554 in that respect as found by the Board in
116 NLRB 1891 , supra . While Bridge 's warnings against interlining with Clark
and other nonunion carriers cannot be attributed to the Respondents in and of-
18 Clark Bros Transfer Company, 116 NLRB 1891. .
19 That this meetinghook place outside the 6-month limitation provided by Section 10 (bp
of the Act does 'not , prevent reliance on that evidence to help show Kavner's status,
Paramount Cap Manufacturing Co., 119 - NLRB 785; N L. R. B. v. Reed cE Prtnce Manu-
facturing Company, 205 F. 2d 131 , 140 (C. A. 1) ; N. L R. B. v. General Shoe Corporation,
192 F. 2d 504 . 507 (C. A. 6 ). Furthermore , Kavner is identified as an organizer of the.
Council in the Board 's Decision in Clark Bros . Transfer Company, supra,
487926-59-vol. 121 48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
themselves it seems to me that Kavner's referrals of all inquiry on the walkouts to
Bridge point to a tie-m of those walkouts with the subject matter of Bridge's
repeated warnings In any event, Kavner's reply to Martin when the latter asked
Kavner for an explanation of the walkout constitutes an admission that the walkouts
were directed to interlining with Clark and other nonunion carriers 20
The motive thus established and considering Kavner 's admission, the other cir-
cumstances of the case all fit as in a mosaic That mosaic is the picture drawn by
the General Counsel which I accept and find to be substantially what happened zi
It seems to me a reasonable inference on these facts that the walkouts were 'nstigated
by Kavner and executed by the Local at Kavner 's orders for the purpose of forcing
Bos and Burlington to cease doing business with Clark and other nonunion carriers
Iso find
Any spontaneity or unauthorized aspects of these walkouts are denied by the fact
that the men had gone to work and so far as the record shows were called off the
job with no reason, being apparent to them since no grievances were pending 22
Furthermore, the walkouts in other ways lack the flavor of unauthorized or wildcat
strikes Thus the striking employees informed Burlington 's terminal manager,
Vignaroli , that "they were told to clock off " In a wildcat or spontaneous walkout
employees aren't "told" they do so on their own decision and volition particularly in
small units Moreover, when employees are told to strike and do so , it is by some-
one in authority, not a stranger That authority here I find to have been the Local
The 8 (b) (4) (B) Allegation
Notwithstanding the Union's original attempt to illegally force Clark's recogni-
tion as shown by Kavner's 1955 request and the subsequent events which culminated
in the Board 's 8 (b) (4) (A) and (B) Decision and Order against Local 554, the
evidence here falls short of the necessary preponderance to establish that the walk-
outs in question were for the additional purpose of forcing Clark 's recognition
of the Respondents
Under Paramount Cap Manufacturing Co, supra, I am able to rely on evidence
outside the 10 (b) period in making an unfair labor practice finding only where such
evidence is not given "independent and controlling -weight " This I understand to
mean that where there is no evidence within the 10 (b) period whatsoever that can
be augmented or explained by the extra 10 (b) evidence and the unfair labor prac-
tice finding cannot be made but for the extra 10 (b) evidence no unfair labor practice
can be found See News Printing Company, Inc, 116 NLRB 210 Here, Kavner's
remark to Martin about his firm being warned against doing business with Clark
supplies the evidentiary link to the extra 10 (b) evidence permitting its use in finding
that the purpose of the walkouts was to force the struck companies to cease doing
business with Clark There is no such link, however , permitting use of the extra
10 (b) evidence to find that there was the additional purpose to force Clark 's recog-
nition In order to make that finding I would have to give "independent and con-
trolling weight" to the extra 10 (b) evidence
In any event, even considering the evidence of the original purpose to force Clark's
recognition, the fact that the work stoppages were called by a local union in another
State not having jurisdiction over Clark would seem to water down considerably any
inference that those work stoppages were for the purpose of forcing recognition by
Clark If the purpose of the stoppages was not solely to punish Bos and Burlington
for doing business with Clark or other nonumon carriers , it seems to me the inference
that Respondents' purpose was to put Clark out of business is as permissible under
these facts as the inference that they were to force Clark 's recognition In this light
it is obvious that the 8 (b) (4) (B) allegation has not been established by a pre-
ponderance of the evidence I so find
21 The statement, it will be recalled, was "Well, hasn't John Bridge warned your com-
pany of doing business with Romans and Clarks 9" The mention of Bridge here does not
affect this statement as an admission
' In this connection I make no findings or reliance upon the calls made by Kavner to
'Hoffa or Bridge Neither of the calls serves to implicate the International in the unfair
labor practices found herein or to -make Bridge the agent of Respondents
=The possibility of the existence of any latent dissatisfaction at Bos as might be
implied from the testimony of Osborn about other walkouts there does not explain. the
eomplete absence of grievances at Burlington
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 739
The 8 (b) (1) (A) Allegation
Relying on Drivers, Chauffeurs and Helpers Local 639, Teamsters, etc. (Curtis
Brothers, Inc.), 119 NLRB 232; Alloy Manufacturing Company, 119 NLRB 307; and
Ruffalo's Trucking Service, Inc., 119 NLRB 1268, the General Counsel further claims
that the conduct in question also violates Section 8 (b) (1) (A) of the Act. The
pertinent part of Section 8 (b) (1) (A) provides that it shall be an unfair labor
,practice for a labor organization or its agents to restrain or coerce employees in the
•exercise of their right to self-organization and to bargain collectively" through repre-
sentatives of their own choosing as guaranteed in Section 7 of the Act.
In the above cases the Board held that minority picketing for exclusive representa-
tion violated Section 8 (b) (1) (A) on the grounds that when a union thus seeks
to cause economic loss to an employer, the employees "cannot escape a share of the
damage caused to the business on which their livelihood depends." In the absence
,of a finding that Respondents' purpose here was to force Clark's recognition, it is
obvious that to find a violation of Section 8 (b) (1) (A) of the-Act here would re-
quire a significant extension of the doctrine enunciated in the cited cases . This, I
feel in the circumstances here and in consideration of the Board' s statement in the
Curtis case that it was "deciding only the legality of picketing with the unlawful
purpose of foisting an unwanted union on the employees" is a matter for the Board
to determine, not I. Accordingly on the grounds that the facts here do not come
within the rule of the cases in question, I find no violation of Section 8 (b) (1) (A)
here.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Council and Local set forth in section III, above,
occurring in connection with the operations of Clark, Bos, and Burlington, 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 disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent Council and Respondent Local have engaged in
conduct violative of Section 8 (b) (4) (A) of the Act, it will be recommended that
said Respondents cease and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Because of the prior Order of the Board
against another Local of this union involving Clark Transfer and because the
Respondent Council (while not named as a party therein) was involved in the unlaw-
ful conduct there, I feel that to effectuate the policies of the Act, it is necessary to
recommend that Respondents cease and desist from their unlawful conduct as
regards Bos and Burlington and any other employer as directed to Clark or any
other common carrier by motor vehicle within their respective jurisdictions, and
further in addition to a similar requirement as to Respondent Local that the Respond-
ent Council cause appropriate notices to be posted in the offices and meeting places
of each of its constituent Locals where such notices to the Locals' members are
normally posted.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By inducing and encouraging the employees of Bos Lines , Inc., and Burlington
Truck Lines, Inc., to engage in a strike with an object of forcing or requiring said
employers to cease doing business with Clark Bros. Transfer Company, or other
common carriers by motor vehicle, Respondent Council and Respondent Local
have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A)
of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning'of Section 2 (6) and (7) of the Act.
3. None of the Respondents herein have violated Section 8 (b) (1) (A), and
(b) (4) (B) of the Act as alleged herein, nor has the International violated Section
8 (b) (4) (A) as alleged herein.
[Recommendations omitted from publication.] -