Stibbs Transportation Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1952

98 N.L.R.B. 422 (N.L.R.B. 1952)

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laborers employed by the Supply Company have been retained, and its
operations are now located in the same building housing the operations
of the Employers herein. . Whereas the Employers would include all
the afore-mentioned employee classifications in the unit, the Petitioner
would include only roofers and common laborers, leaving representa-
tion of the sheet metal mechanics and apprentices to the Sheet Metal
Workers, AFL, which has represented them for more than 10 years
on a craft basis. The Sheet Metal Workers' current contract, which
was executed with Contractors Supply Company, but was assumed by
Krueger Metal Products upon its acquisition of the former, expires
April 31, 1952. Sheet Metal Workers appeared at the hearing and
expressed its desire to continue as bargaining representative of the
sheet metal mechanics. No one requests a separate election among the
sheet metal mechanics. Accordingly, as the Petitioner does not desire
to represent these employees, as it appears that they constitute a craft
group which has been accorded separate representation in the past,
and as their present bargaining representative desires to continue their
representation on a craft basis, we shall exclude the sheet metal
mechanics and their apprentices from the production and maintenance
unit.
We find that all production and maintenance employees of Krueger
Sentry Gauge Co. and of Krueger Metal Products, Inc., Green Bay,
Wisconsin, including roofers and common laborers, but excluding
sheet metal mechanics and their apprentices, guards, professional
employees, and supervisors as defined in the Act, constitute, a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
-volume.]
STIRBS TRANSPORTATION LINES , INC. and THOMAS CROGAN AND
JOHN H. LENNON , JR. Case No. 1-CA-829. March 4, 1952
Decision and Order
On August 15, 1951, Trial Examiner Bertram G. Eadie, issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and
the General Counsel filed exceptions to parts of the Intermediate
Report and supporting briefs.
98 NLRB No. 74.
STIBBS TRANSPORTATION LINES, INC. 423
The Board 1 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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case ,2 and hereby rejects the findings, conclusions, and recommenda-
tions of the Trial Examiner except to the extent that they are con-
sistent with our Decision and Order herein.
The Trial Examiner has found that the Respondent discrimina-
torily discharged and thereafter refused to reemploy Thomas Crogan,
John H. Lennon, Jr., and Robert McDonough in violation of Section
8 (a) (1) and (3) of the Act. We cannot agree. Without disturbing
the Trial Examiner's credibility finding, we are not persuaded upon
the entire record that the discharge and subsequent refusal to reinstate
these men was discriminatory.
The record establishes that the 'normal workday at the Respondent's
Medford terminal begins at 8 in the morning and ends when the out-
going freight is loaded at night. During the morning hours the city
drivers working out of the terminal normally load their trucks with
freight which has arrived the preceding night from the Respondent's
terminal at Springfield, Massachusetts, and deliver it to consignees
in Boston and vicinity. During the afternoon, these drivers pick up
freight consigned to Springfield and points west, and then return to
the Medford terminal. Upon their return, the city drivers are nor-
mally required to help unload their trucks at the loading docks and
assist the few full-time dock workers and the freight checker in re-
loading the freight on large semitrailer trucks for shipment during
the night to Springfield.
The number of city drivers required for dock work on any partic-
ular evening varies according to the amount of freight that has to
be handled. However, it is clear from the record that the city drivers
and terminal workers are customarily required to work more than 8
hours a day and that they do not check out and leave the terminal
until the Respondent has enough men available to handle the night
loading.3 The Respondent's dispatcher, Conrad, whose testimony
at least in this respect was credited by the Trial Examiner, testified
at the hearing that the men with the most seniority got the first chance
'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 Herzog and
Members Houston and Murdock].
2 As the record , exceptions, and briefs adequately present the issues and positions of
the parties , the Respondent 's request for oral argument is hereby denied.
80n 46 days preceding his discharge (excluding Saturdays when there was no general
overtime ), complainant Crogan worked overtime 39 days, averaging approximately 22
hours per day In the preceding 48 days ( also excluding Saturdays ) complainant Lennon
worked overtime on 43 days , also averaging about 21/2 hours per day No overtime showing
was made as to complainant McDonough.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to do night loading. If any of them did not want to work on a partic-
ular evening, and if men with less seniority were available, the senior
men were allowed to clock out and leave.
At about 4: 30 on the afternoon of October 17, 1950, the Respondent
posted-on its bulletin board a notice changing the reporting hours for
6 of its employees and laying off 10 with the least seniority. Com-
plainant McDonough, then a city driver, was among the 10 men who.
were laid off. Complainant Lennon, another city driver, and com-
plainant Crogan, a freight checker at the Medford terminal and the
Union's steward there, were not covered by the layoff notice. Begin-
ning at 5: 17 p. in., most of the Respondent's employees, as they re-
turned to the terminal with their trucks or otherwise completed 8
working hours, punched out at the time clock and left the terminal
without securing permission to leave and without having loaded the
outgoing freight then on the loading docks. So far as the record
shows, no complaint about the layoff notice was ever lodged with the
Respondent by the Union or any of the complainants.
At about 7: 30 p. in. Coe, the terminal manager, having been away
since early that afternoon, returned from dinner, saw that.the loading
docks were piled high with freight consigned to Springfield and.
points west, and was advised by Conrad that "the boys just walked
off the job." According to Coe's uncontradicted testimony, Conrad
told him that he did not know the reason for the work stoppage.
Coe immediately phoned Sullivan and Harrington, business agents
for the Union, Chandler, the Respondent's attorney, and Thompson,
the attorney for the Employers' Motor Freight Carrier Group of
which the Respondent was a member. According to Coe, Sullivan
and Harrington professed no knowledge of any work stoppage, but
offered to come out to the terminal which they did, as did Chandler
and Thompson 4 Coe testified that he also phoned twice during the
evening to Stibbs, the Respondent's president and owner, who was in
Buffalo where the Respondent's main office is located.
Thompson testified without contradiction that when the situation
on the docks was brought to the attention of the business agents, they
said there was no work stoppage and that the night men would come
on in their regular order and go to work. The business agents said
that they would find some men to complete the loading of the trucks
and get the freight out to Springfield, even if they had to do it them-
selves. Coe testified, also without contradiction, that the business
agents said that they did not condone what had happened and that
they wanted to find out who was responsible.
4 Harrington and Sullivan , although subpenaed by the General Counsel , refused to testify
at the hearing except with regard to questions concerning the Union 's contract with the
Respondent.
ST.ZBBS TRANSPORTATION LINES,, INC. 425
During the evening, three semitrailer trucks which had been loaded
earlier in the day left on time at 8: 30 p. m. with their regular union
drivers: However, three other trucks were delayed several hours
until enough workers were located to complete the loading. In addi-
tion, that night Coe had to hire a policeman to guard the freight
which was so stacked up and disarranged on the dock-that the terminal
doors could not be closed.
A conference between Coe, Thompson, Chandler, Sullivan, and
Harrington was held throughout the evening. Before they left that
night, the business agents, in accordance with instructions from
'Stibbs, were notified that the men who had walked off the job were
-considered as having quit, and that Coe would rehire the next morning
those men whom he considered capable of carrying out their jobs.
Before the business agents left the terminal that night they requested
that Cope give them an opportunity to speak to the men the following
morning before they were allowed to check in. During the night Coe
prepared a list of men whom the Respondent would rehire.
The next morning the city drivers and terminal workers arrived for
work as usual shortly before 8 a. m. and were advised by Coe that
the business agents wanted to talk with them. Harrington and Sulli-
van arrived soon thereafter, conferred with the men outside the ter-
mninal, and then went to Coe's office. There, they were given the list
prepared by Coe the preceding night. Coe said that the men on the
list would be rehired as new employees without seniority,' and that
the Respondent would-not take back 12, including the 3 complainants,
who it considered had quit. After this conference the men on Coe's
list went to work and normal operations were resumed.
Two days later representatives of the Union, including Harrington,
;Sullivan, and Crogan, met with the Respondent's representatives,
Chandler and Thompson, at the office of Mark Sauter, industrial rela-
tions adjuster for the Massachusetts State Board of Arbitration and
Conciliation. Santer testified without contradiction that both the
Union and the Respondent took the position that there was no strike
or other concerted activity on the night of October 17. The parties
disagreed as to whether or not the men who had not been reemployed
had quit their jobs that night. At the conclusion of the meeting the
Respondent consented to take up with the Union at a conference on
Monday, October 23, the cases of any of the 12 men who claimed they
did not quit and yet were not reemployed.
Such a conference was held on the night of October 23 at the Hotel
Manger, and the 12 men who had been denied reemployment were
given an opportunity to explain their reasons for leaving work. At
S Several days later all the employees who were taken back had their previous seniority
rights restored.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the conclusion of the meeting it was announced that the Respondent
would review the statements made by the men and would reemploy
those that it believed had been properly excused on the night of
October 17. The next day the Respondent notified the Union that
it would take back 7 of the 12 men who had previously been denied
reemployment. It did not offer to reemploy the 3 complainants
herein, or former employees D'Ambrosia and Haskins.
Thereafter, charges were filed by the Union in behalf of these five
men with the joint arbitration committee provided for in article VIII
of the Union's contract with the Respondent.e The committee, con-
sisting of three employer representatives and three union representa-
tives, met on November 3 and afforded the complainants a hearing.'
The six-man committee could reach no agreement. Thereafter, in ac-
cordance with the contract, the six-man committee met again on
November 9 with a seventh member. The new committee decided, in
substance, as the Trial Examiner has found, that the Respondent was
justified in terminating the services,of the complainants and refusing
to rehire them. After the committee's decision was announced, Gro-
gan initiated the instant proceeding by filing the original charge with
the Board.
At the hearing herein Crogan and Lennon steadfastly maintained'
that they had not quit on the night of October 17 and had done nothing
out of the ordinary in leaving the terminal that night .8 Both main-
tained that there was no strike. They further adhered to the po-
sition which they had repeatedly expressed at the hearing in the.
office of the State Board of Arbitration, the Manger Hotel meeting,,
and the joint committee meetings, that they had not left that night
pursuant to any concerted plan. In addition, Lennon testified that,
lie had left to buy a horse blanket with the permission of Assistant
Dispatcher McMahon, whom he telephoned during the afternoon of
October 17. Crogan variously testified at the hearing that he left
on the night of October 17 without requesting permission because
there was no work to be done, there were no men left on the dock for
him to work with, and in any event he did not have to secure permis-
sion to leave when he did.
The Respondent contends that the Board cannot, or should not as.
a matter of policy, assume jurisdiction in this matter because the,
6 The Trial Examiner apparently overlooked Crogan ' s testimony in stating'in.the Inter-
mediate Report that the record appeared to be baYren of evidence concerning the identity
of the party initiating these charges . Crogan testified that he and complainant Mc-
Donough filed their complaints with the Union at the same time, and that complainant,
Lennon filed his sometime later.
7 D'Ambrosia , one of the five men involved, withdrew his complaint before the committee.
hearing. He was subsequently reinstated by the Respondent when his name was reached4
on the seniority list.
e Complainant, McDonough did not testify in- this proceeding
STIBBS TRANSPORTATION LINES, INC. 427
findings of the joint arbitration committee are binding upon the par-
ties under Massachusetts law. We cannot agree. The Board's author-
ity to proceed in cases such as this is contained in Section 10 (a) of the
Act, which provides that the Board's power to prevent unfair labor
practices affecting commerce "shall not be affected by any other means
of adjustment or prevention that has been or may be established by
agreement, law, or otherwise. . . ." With respect to the exercise of
the Board's discretion, we can find no justification for deeming our-
selves bound, without any inquiry on our part, by an arbitration
award which may be at odds with the statute.'
We turn then to the merits of the case. The Trial Examiner ap-
parently has rejected the General Counsel's contention that any of
the employees were engaging in concerted activity when they left the
terminal on the night of October 17. We can perceive no reason in
the record for finding otherwise. It follows, therefore, that the Re-
spondent did not violate the Act by the discharge and subsequent re-
fusal to reinstate the complainants unless its action interfered with
other employee rights guaranteed by the Act, or was calculated to
have that effect. Contrary to the Trial -Examiner, we cannot find
this to be the case.
The record establishes that the Respondent has enjoyed amicable
contractual relations with the Union for many years, and there is no
persuasive evidence of any antiunion motive on the Respondent's part
at any time. Indeed, Coe's action in immediately calling the union
business agents on the night of October 17 before he took any steps
against the employees who left, and his subsequent cooperation with
the business agents at the several hearings afforded the complainants,
evince a desire on the Respondent's part to settle any differences with
the Union on a friendly basis. In view of the uncontradicted testi-
mony that the business agent said that night that the Union did not
condone what happened and wanted to find out who was responsible,
we do not believe that Coe acted unreasonably in assuming,that the
men had quit for reasons of their own. The correctness of his position
on the matter, at least so far as the Union's contract was concerned,
was subsequently upheld by the joint arbitration committee.
Unlike the Trial Examiner, we are not impressed by the fact that
the Respondent, sometime after the issuance of the decision of the
seven-man committee, reemployed three former employees with less
seniority than the complainants. Nor are we impressed, as. was the
Trial Examiner, by Coe's admission that if D'Ambrosia, Haskins, and
McDonough had not filed a complaint with the joint committee, they
would have been reemployed when their names were reached on the
seniority list. Coe's uncontradicted testimony reveals that sometime
9 See hfon8anto Chemical Company, 97 NLRB 517.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shortly after the meeting at the Hotel Manger, the Respondent, at the
Union's request, reestablished the old seniority list as to all employees
who were not testing their seniority rights under the arbitration pro-
vision of the contract. Consistent with this action, D'Ambrosia, who
withdrew his charge before the committee, was reinstated when he
was reached on the seniority list. The three complainants _ and
Haskins pressed their cases before the committee, which, as noted
above, concluded that the Respondent was justified in terminating
their employment and refusing to rehire them. In these circumstances,
we can find nothing improper in Coe's statement that McDonough,
Haskins, and D'Ambrosia would have been reemployed if they had
not pressed their cases before the committee. Indeed, it appears
that had the Respondent ignored the decision of the committee and
reemployed any of the complainants ahead of the remaining men on
the seniority list, the latter's seniority rights might have been violated.
In the absence of any testimony of antiunion conduct on the Re-
spondent's part, we do not believe that a violation of Section 8 (a) (1)
and (3) of the Act with respect to the three complainants can be sup-
ported simply by the fact that Crogan was a zealous union steward,
and that Lennon, a friend of his, brought certain alleged contract
violations to the attention of the Respondent. Even if Crogan, as the
Trial Examiner has found, "crystallized in person the rights of em-
ployees set forth in Section 7 of the Act," the Board has consistently
held that neither union membership nor active participation in union
affairs is a guarantee against discharge.1° The Act is violated where
a discharge is motivated by such union membership or activity, but on
the record before us we cannot find such motivation. Accordingly, we
shall dismiss the complaint.'1
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint herein be, and it hereby is
dismissed.
Intermediate Report
STATEMENT OF THE CASE
Upon charges made by Thomas Crogan and John H. Lennon, -Jr., filed respec-
tively on December 5 and 22, 1950, the General Counsel of the National Labor
10 See Arkansas Fuel Oil Company, 95 NLRB 571.
11 The General Counsel has taken exception to the Trial Examiner's failure to find that
the Respondent violated Section 8 (a) (1) of the Act when it announced on the morning
of October 18 that it would rehire its former employees as new men without seniority. We
find no merit in this exception . As we have found that the discharges were not unlawful,
we find nothing improper in the Respondent 's decision to apply a lesser punishment to the
employees whom it decided to reinstate.'
STIBBS TRANSPORTATION LINES, INC. 429
Relations Board , herein referred to as the Board , by the Regional Director for,
the First Region ( Boston, Massachusetts ), issued a complaint dated May 2,
1951 , against Stibbs Transportation Lines , Inc., herein referred to as the
Respondent. Copies of the charges and the complaint were duly served on the
Respondent . The complaint alleged that the Respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, referred to hereinafter as the Act.
With respect to the unfair labor practices, the complaint alleges that the
Respondent (a) discharged Thomas Crogan, John H. Lennon, Jr., and Robert
McDonough, employed at its, Medford terminal, on or about October 17, 1950,
and since then has failed and refused and continues to refuse to reinstate them
to their former or substantially equivalent positions ; (b) discharged and
refused or failed to reinstate said employees for the reason they joined or
assisted the Union or engaged in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection; (c) on or about October
18, 1950, notified its employees that they were rehired as new employees and that
they were deprived of the benefits due them because of their seniority standing;
(d) discriminated and is discriminating in regard to the hire or tenure or terms
or conditions of employment of the above-named employees thereby discouraging
membership in the Union; and (e) interfered with, restrained, and coerced
and is interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
The Respondent filed an answer in which it admitted the jurisdictional
allegations in the complaint, and the employment of Thomas Crogan, John H_
Lennon, Jr., and Robert McDonough. The answer, however, denied the dis-
charge of Crogan, Lennon, and McDonough, and denied the commission of any
unfair labor practices The answer affirmatively sets forth that the activities
of the individual complainants did not constitute protected concerted activity
within the meaning of Section 7 of the Act.
Pursuant to notice, a hearing was scheduled and held from May 21 to 29, 1951,
inclusive, at Boston, Massachusetts, before the undersigned Bertram G. Eadie,
the Trial Examiner duly designated by the Chief Trial Examiner. The General
Counsel and the Respondent were represented by counsel. The charging parties
with the exception of McDonough were present and testified. All parties
participated in the hearing, excepting McDonough, and were afforded full oppor-
tunity to be heard , to examine and cross-examine witnesses , and to introduce
evidence bearing on the issues.
The General Counsel moved to conform the complaint to the proof as to names,
dates, and other minor variances . The motion was granted.
Counsel for Respondent moved to dismiss the complaint on several grounds
at the close of General Counsel's case and again at the close of the whole case.
Rulings thereon were reserved , and the motions to dismiss are now denied.
Upon the entire record in the case and from his observations of the witnesses,
the Trial Examiner makes the following : -
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent at all material times mentioned herein is and has been a
New York corporation, engaged in the operation of a fleet of trucks in transport-
ding niiisc'ellaneous freig̀)It;pfor .hire,-from and to its terminals , ' located at--bed
between Medford, Massachusetts, and Buffalo, New York. It operates terminals
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,at Medford ( Boston ) and Springfield in Massachusetts , and Buffalo ,- Rochester,
Utica, , Syracuse , and Albany in New York. It receives , holds, delivers,, and
forwards freight at its terminals to and : from individuals , corporations,, and
,,ether carriers of freight to and from various other , States of the United States.
Respondent 's operations are under the jurisdiction of the Interstate Commerce
'Commission . It admits in its answer that it is engaged in interstate commerce.
• The Trial Examiner finds that Respondent at all material times mentioned
(herein was and is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 25, International Brotherhood of Teamsters , Cbauffers , Warehousemen
and Helpers of America , AFL, herein referred to as - the Union , is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background : sequence of events
The Respondent was founded in 1933, by its sole owner and president,
Claude F. Stibbs . The Company started its operations with one truck , personally
operated by Stibbs , until today it operates fleets of trucks in transporting
miscellaneous freight for hire from and to shippers and consignees on its several
lines in New York and Massachusetts . At its Medford terminal, local freight
-for and from the city of Boston and vicinity is received and dispatched . Freight
is also received from and delivered to other carriers operating in territories
beyond the lines of Respondent . From Medford, semitrailers are dispatched and
received daily from Springfield , a distance approximating 97 miles.
Semitrailers are made up of a tractor and trailer , also known as a box. The
front end of the box is carried and pivoted on the tractor , which is readily
,detached . The semitrailer is supported by 14 wheels, 8 on the box and 6 on
the tractor . When loaded with freight the weight averages about 25 tons.
The average speed on the highways is between 40 and 50 miles per hour.
Between its Medford and Springfield terminals , Respondent operated a fleet
.of 6 semitrailers . They were dispatched daily from the Medford terminal
between 8 and 12 p. in. The boxes were exchanged at Springfield for boxes
consigned to Medford from Syracuse or beyond ; and the operators from Syracuse
or Medford returning with their tractors and consigned boxes to their respective
terminals . ' The average time consumed by the operators , from Medford, for
the round trip , to Springfield was 10 hours. The operators were allowed and
paid for at least 10 hours and received overtime if the trip went over the allowed
time. On the return of, the tractors and boxes they were used during the day by
other employees in the delivery and pickup of local Boston freight from and
to the Medford terminal . The local operation was supplemented by a fleet of
smaller trucks also operated by Respondent . In its operations the Respondent
operated 9 tractors , 15 boxes, and 11 smaller trucks out of its Medford terminal.
The operators of the tractors between Medford and Springfield were knowd
or classified as "over-the-road drivers" while those operating within the Boston
area were known as "city drivers."
All employees of Respondent at the Medford terminal with the exception of
the office , garage, and supervisory employees , were members of the Union.
The Respondent had operated the Medford terminal for about 8 years;, and at
all material times mentioned herein had in its employ about 50 operators.
Respondent had entered into an agreement with the Union on April 12,
1949, which was in effect at all material times mentioned herein . It was also
during said times a member of the Employers Group of Freight Carriers, Inc.
STIBBS , TRANSPORTATION LINES„ INC. - 431.
The portion of the Medford terminal occupied by Respondent consisted of
:a triangular, fenced plot, with a roadway leading from the street entrance
to a loading platform, or dock, which ran along the side of a building used
-for a garage and warehouse . Doorways opened from the dock to the building.
The transfer of freight was made directly from truck to truck or from truck
to dock and then reloaded on trucks at the dock . Trucks used the street in front
of the terminal for parking purposes at times when Respondent 's area became
-overcrowded.
The Medford terminal was operated by Respondent for upwards of 5 years
under Edgrin as manager . His business connections with Respondent were
severed in April 1950, at which time Kempskie was appointed to succeed him.
-Kempskie held the position as manager until September 1950, when he was
succeeded by Coe, a vice president and general manager of the Respondent's
eastern division . During the tenure of office of Edgrin, as manager, he entered
into certain verbal working agreements with the employees and the Union
-through the shop steward. These agreements covered the working conditions at
the terminal , the pay and time of operators on the round trips to Springfield,
and also a plan whereby the employees were afforded an opportunity to bid
for any particular job where a vacancy existed according to their credited
seniority.
The manual labor in and about the terminal was done by the employees who
had no particular truck assignments and those drivers who reported back after
finishing their driving assignments with the exception of the over-the-road
-operators whose trips to Springfield constituted a full day's work . Under such
.arrangements the employees were permitted to complete a full 8-hour day work-
ing part time as truck operators and part time as laborers at the terminal.
When there was work to be done at the terminal they were encouraged to con-
-tinue beyond their 8 hours at the overtime wage.
Late in the month of September 1950, the condition at the terminal had be-
come so congested that Respondent hired an additional terminal in South Boston
-for the purpose of unloading the incoming freight from Springfield ; and using
the Medford terminal for the outgoing long-distance loading. At about the
same time Respondent rehired six employees , whom it had previously laid off
with nine others, shortly after Coe had assumed the management of the terminal.
The congested condition at the Medford terminal bettered considerably during
the operation of the South Boston terminal. The additional terminal was closed
by Respondent after several weeks of operation . The freight again began to
-pile up at the Medford terminal and that condition existed on the afternoon
.and early evening of October 17, 1950. On that date at about 4:30 p. m., the
;following notice was placed on the bulletin board by the Respondent :
Notice
The following men are to report at 11: 00 a. m. effective October 18, 1950.
Mario Valdario Joseph Rego Lawrence Costello
Joseph Burns Francis D'Ambrosio Danny Kerr
This notice also constitutes a lay-off to those men lower on the seniority list
than the last named above.
Howard M. Coe,
Per R. M.
Daniel ( Danny) Kerr was number 40 on the seniority list. There were 10
employees below his name on the list including Robert-McDonough ], acomplainant
Herein. Crogan and Lennon were higher on the seniority list than Kerr.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees other than the over-the-road drivers clocked out on the night of
October 17, between 5: 12 and 7: 35 p. m., and of those, 3 between 5 and 5: 30
p. m.; 11 between 5: 30 and 6 p. m.; 3 between 6 and 6 : 30 p. m .; 7 between 6: 30
and 7 p . m. ; 10 between 7 and 7: 30 p. m'
B. The discharges of Thomas Crogan, James H. Lennon, Jr., and
Robert McDonough
Thomas Crogan had been employed by the Respondent for approximately 41
years. Shortly after he entered Respondent's employ he became shop steward
for the Union. During the past 2 years he had been employed by Respondent as
a checker at the :Medford terminal. He occupied these two posts up until the
severance of his employment with the Respondent. On the morning of October
18, 1950, Respondent refused to continue him in its employ, in conformity with
a notice it posted on its bulletin bgard. The notice read as follows :
NOTICE
Every man who walked off the job last night "QUIT" and the Company
recognizes that action
* *
As of this morning,
will interview men for
menta
* *
as an effective resignation.
* * * * *
October 18 at,9 a. m., the Company's representative
the purpose of covering necessary, manpower require-
*
' Respondent's time records of its employees for October 17 are as follows :
Hours
worked
Calvin --------------------------------------------------------------------
La Vigue---------------------------------------------------- ---------- ---
Lydon ---------------------------------------------------------------------
Allen---------------------------------------------------------------------
Cody----------------------------------------------------------------------
Valdano------------------------------------------------------------------
Kerr------------------------- ---------------------------------------------
Honlon--------------------------------------------------------------------
Costello------------------------------------------------------------------
McLeod----------- ------------------------------------------ - -----------
Shea-----------------------------------------------------------------------
Canmzarro----------------------------------------------------------------
McMahon-----------------------------------------------------------------
Allen------ -------------------------------------------------------------
Burns---------------------------------------------------------------------
Daley---------------------------------------------------------------------
Dern----------------------------------------------------------------------
Desmond-------------------------------------'----------------------------
Elhs-----------------------------------------------------------------------
Kellv------------------------------------- -------------------------------
Linblod----------------------------------------------------- -----------
McOonagle ----------------------------------------------------------
Mulligan ------------------- ---------------------------------------------
O'Connor-------------------------------------------------------------
O'Donnell-----------------------------------------------------------------
O'Donnell, L-----------------------------------------------------------
O'Keefe------------------------------------------ --------------------•---
Rego ----------------------------------------------------------------------
Whonskey------------------ -------------------------------- ---------------
Wilson--------------------------------------------------------------------
Lennon---------------------------------------------------------------
Haskins---------- --------------------------------------------------------
Crogan------------------------------------------------------------------
McDonough--------------------------------------------------------------
Checked
out
P m
83,/2 5 34
83j 5:17
8'4 5.34
8f 5.35
8 5 15
8 5.37
8% 5 38
8% 5:39
9132 543
9 5:51
8 600
8 6.01
9 6:02
9% 6:42
1014 7:16
1014 728
9334 6.46
1014 7.12
101 7:35
10 700
1014 7.12
10 6 52
9r 6:57
10% 7.10
954 6 32
10 6:53
1034 7-.20
1034 7:19
9% 6:43
1034 7 15
8% 5:12
8A 5.37
8% 5:39
834 5 .35,
STIBBS TRANSPORTATION LINES, INC.
This case is in the hands of the Company's lawyers.
s s s s * s
Consult your business agents.
433
The office of shop steward held by Grogan was provided for in a collective
bargaining agreement between the Union and the Respondent. He was appointed
by the Union and during his term of office constantly discussed with manage-
ment, and his superiors in the Union, complaints processed through him, as shop
steward, concerning conditions and problems between management and em-
ployees. With respect to the shop steward, the contract provided "... he shall
be the last man to be laid off in slack periods."
The job of checker held by Crogan was one established by the Respondent and
solely under the jurisdiction of management and its supervisory employees. Its
creation or the abolition of it, so far as the employees were concerned, was
governed by the identical law, rules, and procedures governing employment of
personnel at the place of business of Respondent. A vacancy had existed for
the job; and by reason of Crogan's fitness; seniority, and his bid or application
for the job under the verbal agreement, which had been entered into previously
between the Respondent and the Union, he was appointed to it, and had con-
tinuously carried on as checker until the advent of Coe, succeeding Edgrin and
Kempskie in the position of manager.
On assuming the duties as manager, Coe, in concert with Conrad, the dis-
patcher, ordered Grogan to operate a truck out of the terminal. Crogan refused
to obey the order, claiming that it was against the terms of the verbal agreement
between the Respondent and the Union. Acting through the Union, Coe then
discharged Crogan for refusal to carry out the order. Grogan thereafter resorted
to the grievance provisions in the contract. A joint committee, consisting of
three business agents of the Union and three representatives designated by the
Employers Group of Motor Freight Carriers, Inc., considered and acted on
Crogan's complaint against the Respondent in accordance with the terms of the
agreement. Four of the conferees sustained the complaint against Respondent
and Crogan was thereupon reinstated and received from Respondent full pay
from the date of his discharge. The time elapsed from his discharge to his
return to work was a matter of a few days.
Several days after Crogan returned to work Coe discontinued the job of
checker and he was assigned to manual labor pushing a two-wheel truck on the
dock, or platform, in loading and unloading freight to and from the platform and
trucks. After several days of operation without a checker, Conrad, the dis-
patcher, instructed Grogan to again act as checker, in which capacity he was
engaged until his employment was terminated on October 18.,
Concerning the checker's duties, Coe testified credibly as follows :
A. Mr. Crogan was to see that the freight we received from other carriers
was correct as to the number of pieces specified on their bill and that it was
in good order and sign their slip after we had accepted delivery of it. In
delivering freight to other carriers it was his responsibility to see that we
gave freight in accordance with our bill and get their signature in receipt
thereof. There was other work involved to load trailers, to be sure that the
freight was on the trailers, to be sure that the freight was on the right
trailer. We ship to three different locations. And another case, if a trailer
is from the west, to check the freight off of the trailer in accordance with the
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truckman. He is to see we got the freight that was supposed to be on that,
trailer. It was quite a large job , a very important job.
With respect to Crogan's work, employee Joseph Burns was questioned and
testified credibly as follows :
. . And when he come on the job, he chose the functions as a checker.
Up until the time he left he still was. However, I do that job now with the-
help of William McLeod.
Q. Well, did he do the job efficiently while he was there?
A. Yes, for the job he did. He was a checker, and that's all. He did that
very well.
Q. Now, for some time-
Trial Examiner EADIE. Well, is the checker there a full time job?
The WITNESS. Yes. Mr. Crogan was there from eight o'clock in the morn-
ing until whatever time he'd go home at night-six o'clock or 6: 30. He stayed
on the dock all the time excepting his lunch hour. He never went out at all.
Trial Examiner EADIE. And that, in your opinion, was a full-time job?
The WITNESS. It certainly was a full time job. That's all he did.
After Edgrin's management had been terminated and Kempskie had succeeded
him in April 1950, Coe visited the terminal on several occasions remaining there
several days at a time. ' He became a resident of Boston or vicinity in the early
part of September 1950 and assumed full management of the terminal on
September 9, 1950.
The work of loading and unloading freight at the terminal was under the direct
personal supervision and control of the dispatcher or his assistant. Crogan had
no supervisory powers except to direct the employees in placing the freight in the
proper trucks or at convenient places for handling on the dock or platform.
After Coe had taken over the management in September 1950, Crogan, as shop
steward, made numerous complaints to him concerning matters which he believed
to be violations on-the Respondent's part of the terms of the agreements entered
into between it and the Union. In this connection he had a number of confer-
ences with Coe. In substance the complaints were as follows :
a. Respondent was violating the terms of the verbal operating agreement with
the Union by ordering him to forego his job as checker and operate one of the
Respondent's trucks from the terminal.
b. Respondent in discharging him for the reason given was violating the terms
of the written agreement with the Union.
c. Respondent operated its trucks dangerously on the highways, in using
retreaded tires on the front wheels of some of its tractors. The use of such
tires by Respondent was thereafter discontinued.
d. Respondent's manager checked freight contrary to the terms of the agree-
ment with the Union. The practice was thereafter discontinued.
e. Respondent's manager handled freight on the platform contrary to the terms
of the agreement with the Union. The practice was thereafter discontinued.
f. Respondent used "Gypsy" trucks, those individually owned by the operators,
and contracted for by Respondent, to make particular trips, in violation of the
terms of the agreement with the Union. Such practice was thereafter dis-
continued.
g Respondent operated its semitrailers direct from, Syracuse, bypassing
Springfield, to its Medford terminal, violating the terms of the agreements. The
practice was thereafter discontinued.
After the discharge of Crogan and his reinstatement by Respondent in con-
formity with the action taken by the six-man joint committee, the Respondent
posted on its bulletin board under date of September 13, 1950, the following:
STIBBS TRANSPORTATION LINES, INC. 435,
NOTICE
In accordance with Management' s agreement with representatives of Local
#25 on 9/11/50, all prior verbal agreements are hereby cancelled and
declared null and void.
The management shall continue to pay the same hourly rates as formerly.
- HOWARD M. COE.
Upon posting of the above notice, the job of checker was discontinued for a,
short period of time but, as related above, was thereafter reestablished by
Respondent and Crogan was reappointed to it.
The Trial Examiner credits the testimony of Crogan to the effect that his-
actions on the afternoon or evening of October 17 were in nowise different from
his procedure on any other day. Respondent's time records show that Crogan.
was 1 of 11 employees checking out between 5: 30 and 6 p. in. There were 29-
employees who checked out after him of which 20 checked out after.6 o'clock.
On the day previous, he, checked in at 8: 33 a. m. and out at 5:.37 p. m., after
working 8 hours. The record shows that on October 17, when Respondent,
claims he "walked off the job" and "quit," Crogan worked 81,4 hours, having
clock in at 8: 33a.m and out at 5:39p.m.
John H. Lennon, Jr., had been employed by Respondent since January 1949.
He had worked as an over-the-road driver, city driver, and dock worker during
the period of his employment. On October 17, 1950, he was employed as a city
driver.
The Trial Examiner credits his testimony concerning the events on October
17. In substance, he testified that while out operating one of Respondent's
city trucks, he called the assistant dispatcher in the afternoon and advised him
that he would like to leave early that day as he had a personal matter to which,
he wanted to give his attention ; that upon arriving at the terminal with his
truck in the early evening he turned in his funds and papers at the office ; that
he was instructed to park the truck in the lot and take his tractor to the garage,
for attention ; that he attended to such matters ; and that he then clocked out
,at 5: 12 p m. and left the terminal. His time for that day was 81/4 hours.
As in the case of Crogan, the Respondent claims that Lennon "quit" his job on
October 17.
During the time that Lennon was employed by the Respondent, he remained
a friend of Grogan and on numerous occasions had talked over union matters
with him. He relayed to Crogan, as shop steward, certain information which-
he considered to be acts on the part of Respondent's officials to be in violation-
of the agreement between the Respondent and the Union. He on at least one
occasion called Coe's attention to acts in violation of the agreement on the-
part of Respondent. He many times assisted Crogan in checking as an assistant,
and he also appeared as a witness for Crogan before the six-man board at which,
hearing Coe appeared as a witness for the Respondent.
Lennon testified credibly as as follows :
Q. (by Mr. Coven) Incidently, when you helped out Mr. Lydon, was that
at the Medford Terminal or South Boston Terminal?
A. I worked between both. One day I would lie helping Mike-Mike had
charge of South Boston Terminal, and Tom had charge of the Medford.
Terminal, pushing the trailers going west, and Mike was unloading them ;
the freight had come in from the west to South Boston. So I was between
both of them. As a matter of fact, in between that time when things were-
cleaned up, Mr. Coe came back and patted us on the back for the great job.
Q. Whom did he pat on the back?
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Mike, Crogan, and everyone. As a matter of fact, he gave an extra
hour overtime to the whole crew that had worked.
Q. When you say an extra hour overtime, you mean he permitted you to
work or he paid an hour overtime?
A. What I mean, we worked until 6: 00, and he put in overtime. Instead
of punching our card, he said, "Don't punch in the time. I'll write on that
7: 00 o'clock for the excellent job you're turning in, pulling me out of this
hole."
* * * * * * *
Q. What do you mean by "running gypsies?"
A. Gypsies, Sir, I'll explain it to you so that you'll have a clear observation
of it.
Trial Examiner EADIE. All right.
The WITNESS. A gypsy is a man who owns his own rig. Like I say, I
own the tractor and the trailer myself, and I come to Stibbs Transportation
looking for a load to take to Buffalo. If they have a load.
Trial Examiner EADIE. Sort of a tramp steamer, if it was in maritime?
The WITNESS. That's right, sir. So, by our contract, Stibbs has to use
all his own available equipment on the road before he can hire any gypsies.
So my conversation with Mr. Coe regarding the gypsies was that I was
home, and I wasn't called to go out, and my tractor was available to go out ;
but, instead, he sent the gypsy out; so, according to the contract, he has
to pay me a trip's pay because he violated the article by sending the gypsy
out and keeping my tractor in. Well, I've had that complaint with the
man on various-you can truthfully say two or three times.
Trial Examiner EADIE. Did- you refer those complaints through Crogan
to Coe?
The WITNESS. Well, that's what I'll explain to you, sir. At first, the way
you're supposed to do as a union employee, you walk up and tell your com-
plaint to the manager. If you% don't get no response or no satisfaction,
then you refer your complaint to the steward, and the steward goes to the
manager with you.
The WITNESS. And refers your complaint that you made to him, to Mr.
Coe, the manager ; and then they usually come to some mutual agreement
after a little pro and con over it; and, if they don't, then they have to go
to the business agents. I mean, that's the procedure.
Trial Examiner EADIE. And is that the procedure you followed in these
complaints where you took Crogan to Coe?
The WITNESS. That's right, sir.
Q. (By Mr. Coven) And did you have any other conversations with Coe
or with Crogan and in Coe's presence with respect to other claims that the
Company was violating its contract?
A. I have. %
Q. And will you tell. us some of those?
A. This one night in particular, it was just before Mr. Crogan was fired,
as I remember correctly.
Q. You mean, the first firing?
A. That's right. I would say about a week before that. Mr. Coe was
manager of the terminal at that time and I was a road driver, so when my
house was called at night and my wife received a phone call and told me I
was to go out at two o'clock in the morning, 'Mr. Coe says to me-he had
y
STIBBS TRANSPORTATION LINES, INC. 437
a bunch of papers in his hand, and he said, "Well, you might as well go
home " He says, "Fin all confused here. I can't seem to get your trailer
loaded. I don't think I'll have it loaded before morning." I said, "Well
sir, I hope we don't have to come to this again. I hope you realize and you're
familiar enough with our contract that once you call me in, that you have
to pay me for the trip." He says, "Well, grab a gig and work on the plat-
form." I said, "I'm not refusing work, but my assignment, according to our
strict seniority the way we have it, is a road driver, sir. I can't just come
in and grab a gig and knock off one of the (lock workers." I said, "This
isn't right"
Q. You mean by "knock off" it would cause one of the dock workers to be
laid off for the night?
A. So he laid off for the night. So then he starts reading something.
I said, "What are you doing? Checking the freight?" I said, "You're not
supposed to check that freight." I said, "Its right in our contract. Any-
body who's checking the freight has got to be signatore to Local 25's contract
and a brother member." "Well," he says, "I'm doing it." I says, "I don't
see why you're always asking for trouble. I dont see why things can't
go along here smoothly." He says, "Why don't you go out in your car
and sleep for a couple of hours until I get your truck loaded?" I says,
"That's all right," I went out and I went to the driver. . . .
* * * * * *
Q. (By Mr. Coven) And, incidentally, did you make any report to anyone
about seeing Mr. Coe checking freight?
A. I made a report to Tommy when I came in in the morning.
Q. Tommy Crogan?
A. That's right.
Q. Do you know of your personal knowledge whether Tommy Crogan
took that up with Mr. Coe?
A. That's right. I went right up in the office with him.
Q. And you were present while Crogan talked with Coe about it?
A. That's right.
Q. And what happened during that conversation?
A. Well, to the best of my recollection, Mr. Coe says to Tommy that he was
going to run this terminal the way they run the terminal in Buffalo, and
Tommy said, "What do you mean by that?" He says, "Well, I'm allowed
to check freight. I'm allowed to push a gig or anything I want in Buffalo."
Tommy says, "Well, you ain't allowed here to push the gig, and you ain't
allowed to check freight here, because it's violating the contract." He
said, "Union contracts may be altogether different in Buffalo. I'm not
familiar with Buffalo, so I couldn't tell you
Q. Now, without going into the details of other conversations, did
you have other conversations, did you have other occasions to go talk to
Coe or go with Crogan while he talked to Coe, while he talked of complaints
about the ment
A. I've been with Tommy on complaints about myself about overloads,
as far as that goes.
Q. And has it always been your practices to try to see that the contract
with the Company was enforced strictly?
A. That's right sir.
Robert McDonough. This employee did not appear at the hearing and no
evidence was offered as to the severance of his employment by the Respondent,
,198666-vol 98-53--29
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the exception that on October 17 he was employed by the Respondent
and clocked out at 5: 35 p. in., after completing 81/2 hours' work.
The Respondent claims that McDonough was laid off in accordance with its
notice of October 17, since he was lower on the seniority list than Kerr. As in
the cases of Crogan and Lennon, the Respondent also claims that McDonough
`.quit" his job on October 17. His name appearing on the seniority list,
dated September 12, 1050, was number 42, while that of Kerr was number 40.
A new seniority list under date of November 15, 1950, was promulgated on which
McDonough's name was not listed. That list also omitted the names of Crogan
and Lennon, whose names appeared on the September 12 list as numbers 4 and 28,
respectively.
Employees Romono, Brennan, and Bickford were recalled to work after
October 18 although their names appeared lower down on the list than that of
McDonough. Further, new employees were hired by the Respondent after
October 18.
Respondent urged in defense and justification of its position :
(a) That it had entered into an agreement with the Union which provided
for the arbitration of questions arising between it and its employees ; that
the ruling or decision of the arbitrators was determinative of the rights between
it and its employees ; and that the Board has no jurisdiction of the subject
matter.
(b) That Crogan, Lennon, and McDonough quit their jobs with Respondent
on October 17, 1950, prior to the finish of their work for the day.
(c) That Respondent was justified in not rehiring or allowing them to continue
in its employ on October 18 for the reason that their services had not been
satisfactory as employees.
(d) That there had not been any concerted union activity on the part of
any of said employees which was protected by the Act.
The record appears to be barren of the fact as to who was the complainant
in the proceeding instituted after October 17, 1950, before the joint committee
as provided for in article VIII of the contract between Respondent and the
Union. Crogan, Lennon, and McDonough had not made a complaint, except
verbally to the union representatives. At the request or invitation of the Union,
they appeared before a joint committee of six, at which the Respondent was
represented by its officials. Testimony was given 'by the employees and by the
Respondent. The committee was deadlocked and a seventh member was appointed
thereto, an attorney, who had .acted previously as the seventh member under
similar circumstances. The procedure then taken before the committee was
that as set forth in article VIII of the contract. In substance the report of the
committee justified the acts of the Respondent in severing the services of the
employees and in refusing to rehire them or continue them in its employ.
The Respondent failed to gffer substantial proof that Grogan, Lennon, and
McDonough quit their jobs on October 17, 1950. As related above, on the night
in question Crogan clocked out at 5: 39, the night previous at 5: 37 p. m.
Joseph Conrad, dispatcher, a witness for Respondent, testified credibly, as
follows :
i
A. No, that is not the way they worked. The practice there was, when the
men would come in like that, and after I'd have five or six men that has been
on the dock all day, plus the men that came in, four or five or ten men out in
the street-they don't all come in at one time-they would come in stag-
gering-that's what I mean, staggering in, at different hours on different
minutes. And when I got enough men on the dock, I would ask the senior
men if they wanted to work, and if they did, I'd pick out a number of mein
t- STIBBS TRANSPORTATION LINES, INC. 439
I wanted and let the junior men go ; or vice versa, if they wanted to go, I'd
keep the junior men.
The charges leveled against Crogan that he bad not performed his duties in a
reasonably proper manner were not supported by substantial evidence. The
occurrences were not pin-pointed to reasonably specific dates. No notes or
memoranda were kept of the incidents by the witness testifying. No action
was taken by the Respondent or its officials, looking to the correction of the
particular incidents either by discharge, dismissal from the position as checker,
or the relief to be had in following the processes set forth in the contract between
the Union and the Respondent.
The Trial Examiner accepts and credits the testimony of Crogan and Lennon
in refutation of the reasons propounded by Respondent, in discharging and failing
to reemploy these employees. The Trial Examiner also credits the testimony
of the General Counsel's witnesses, Marquedant and Burns, in support of the
General Counsel's theory of the case that Grogan, Lennon, and McDonough were
discharged and unreasonably refused reemployment by the Respondent for
other reasons than that they were not fit and capable.
Respondent urges that there was 'no concerted action or union activity on the
part of Crogan, Lennon, and McDonough, which fell within the protection of
Section 7 of the Act. The Trial Examiner refused to accept such contention
as it is contrary to the weight of the substantial evidence.
There is substantial uncontradicted evidence in the record, that after Coe
had assumed management of the terminal, that Lennon and McDonough had com-
plained to Crogan, as shop steward, of real or imagined grievances, that Respond-
ent had violated the terms of the contract between the Union and the
Respondent Most, if not all, of the complaints were relayed to Coe by Crogan.
Lennon and McDonough appeared as witnesses before a joint committee sitting
in hearing of a complaint wherein Crogan contended that he had beea unjusti-
fiably discharged by Respondent. Crogan, as shop steward, in the judgment
of the Trial Examiner, crystallized in person the rights of employees set forth
in Section 7 of the Act and his acts and those of Lennon and McDonough were
within the protection of the Act.
Conclusions
The Respondent in or about April 1950, appointed Coe, a vice president and
manager of its Syracuse terminal, general manager of its eastern division,' which
included the Medford or Boston terminal. Edgrin, the manager of the Medford
terminal, had been succeeded, as of that time, by Kempskie. After several months
under Kempskie's operation and in early September 1950, he was succeeded as
manager by Coe, who then personally assumed the full duties of manager. While
Kempskie was in charge, Coe visited the terminal on a number of occasions. Coe
had not at that time located his residence in Boston, and did not do so until he
assumed full management of it in September. Prior to his becoming manager
of the terminal, he had instructed Kempskie to discharge Crogan. However,
Kempskie had not carried out that order. Upon his first appearance at the
plant, as he assumed the duties of manager, or shortly thereafter, he informed
Crogan that he had instructed Kempskie to discharge him. Crogan told Coe that
be would have to have a reason for taking such action and that none existed.
Kempskie then, in the presence of Coe, ordered Crogan to take out one of Re-
spondent's trucks, which he refused to do, telling them that the order was in viola-
tion of Respondent's agreement with the Union. Crogan was then discharged.
He was sustained in the position he had taken by the six-man committee provided
for in article VIII of the contract and he was allowed back pay for his loss of
wages by such committee.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coe evidently was not aware of the existence of any such agreement between
the Respondent and the Union. The verbal agreement had been in existence
for several years. It provided for the filling of all job vacancies by Respondent
appointing employees who bid for them and who had rights of seniority. Such
a working arrangement was not localized to Respondent's company but was in
operation in some of the other companies comprising the employers' group
of which Respondent was a member. When Coe ascertained the fact that
such a verbal agreement was in effect between Respondent and its employees,
and after an agreement with the union representatives was entered into, he
posted a notice that all prior verbal agreements [between Respondent and its
employees] were canceled and declared null and void.
Upon posting of that notice Coe abolished the position as checker and assigned
Grogan to pushing a hand truck. Shortly thereafter the Respondent recreated
the job of checker and Crogan was reappointed to it by Respondent. Such a
-chapter of facts and circumstances in the opinion of the Trial Examiner refutes
the testimony produced by Respondent to the effect that Crogan was an ineffi-
'cient employee and that his mode of performing his work was justification for
his discharge.
Insofar as the overcrowded condition of the terminal was concerned, in the
opinion of the Trial Examiner, it was brought about and occasioned through no
fault of Crogan's but was entirely the responsibility of management, in not
supplying the proper facilities for the handling of the large volume of freight.
That was evidenced by the fact that after the opening of the second terminal in
South Boston, the condition of overcrowding subsided, and was not again a
bothersome condition or problem until that terminal was closed down. From
the time that it was closed until October 17 the condition of overcrowding
worsened.
It is quite apparent and the Trial Examiner reaches the conclusion and finds
that Crogan and his two fellow workers were considered unsatisfactory em-
ployees by the management, not because of unsatisfactory work in the course of
their employment, but by reason of the fact that Crogan, as shop steward , insisted
on Respondent living up to the terms of the agreements between Respondent and
the Union, especially was this so because of the seeming lack of knowledge of
the provisions of the agreements exhibited by Coe after he assumed management
of the terminal.
The Trial Examiner credits the testimony of Burns in support of the General
Counsel's version of the facts that Crogan, Lennon, and McDonough were dis-
charged for their union activities, and not for their unsatisfactory work, al-
though he as a witness was bitterly flayed for his personal past life. His testi-
mony that an appeal was made to him by the president of the Respondent 2
nights before the hearing was scheduled to be heard by the seven-man committee,
to appear thereat as a witness against Crogan, Lennon, and McDonough is
credited. While Burns' testimony to the effect that he had offered or exhibited
to him a large amount of cash, or had offered to bet $100 on the outcome of the
hearing, was denied by Stibbs, nevertheless it is credited by the Trial Examiner
for the reason that he believes it to have been substantially corroborated by the
testimony of Stibbs and Coe, in which each admitted : (a) That Burns was called
into Stibbs' office when Coe was present in the night 2 days before the hearing
was scheduled to be held ; (b) that Stibbs requested Coe to leave the office as he
wanted to talk to Burns in private, and Coe left the room, (c) that the scheduled
hearing was the subject of the conversation between the two; and (d) that Burns
was thereafter made foreman of the night shift, although on October 17 there was
no such job.
STIBBS TRANSPORTATION LINES, INC. 441
The inference drawn by the Trial Examiner is that Respondent would go a long
way in order to rid itself of Crogan as shop steward and deal directly with the
Union through the attorney for the employers' group. This inference is sup-
ported by Coe's actions and also those of Thompson, attorney for the employers'
group, who discussed complaints which had been taken up by Grogan with Coe,
directly with the union representatives and not in the presence of Crogan and
without taking advantage of article VIII of the agreement between the Respond-
ent and the Union.
In confirmation of General Counsel's theory of the case, the testimony of Coe
and Stibbs is enlightening as to the reasons for the discharge of these men. Coe
testified as follows :
A. Well, yes. I believe there was some discussion as to that, I don't recall
precisely what it was except that the Company took a very definite and firm
stand in regards to Crogan and Lennon that they were not to go back to work,
and I believe that the Counsel asked me the position on D'Ambrosia, Hoskins
and McDonough and to the best of my recollection I responded to counsel
that they were not concerned in there because I wasn't down on the seniority
to that point, and we would so tell any future that would be our future posi-
tion. Had they not entered a complaint against the joint committee I would
have had no recourse but to have taken them back
Q. In other words, you considered if they hadn't gone to the joint com-
mittee, they were entitled to the same seniority status that they had as of
October 17th, is that correct?
A. That's correct.
Stibbs testified as follows :
A . . and I wanted to know what he [Burns] thought of it and what he
thought about Mr. Crogan, if he had known the manner in which this man
had been operating, did he know the seriousness of it, that if we couldn't
straighten this thing out, we'd have to close this terminal, because it was
breaking the Company. And I also made the statement that Mr. Crogan
could not come back to work in this terminal, because we'd have to close it
under the way Mr. Crogan operated.
The Trial Examiner has reached the conclusion that the arbitration provisions
of the contract, article VIII, between the Union and the Respondent are effective
and binding between the Respondent, the Union, and its employees, insofar as
grievances are to be determined between them, arising from and based upon
economic sources ; but all questions arising from unfair labor practices com-
mitted or alleged to have been committed either by Respondent, Union, or em-
ployee are beyond the jurisdiction of the parties to such an agreement, and any
agreed upon arbitration, between such parties, would have no binding or legal
effect if based on charges of unfair labor practices. The determination of any
such questions falls exclusively within the powers and jurisdiction of the Board a
The Trial Examiner finds and concludes that Respondent violated Section 8
(a) (1) and (3) of the Act in that it discriminatorily discharged and refused to
2 Harrington and Sullivan , representatives of the Union , while under subpena by the
General Counsel, refused to testify at the hearing although directed to do so by the Trial
Examiner
a "PREVENTION OF UNFAIR LABOR PRACrICES" "See 10 ( a) The Board is empowered, as
hereinafter provided. to prevent any person from engaging in any unfair labor practice
(listed in section 8) affecting commerce This power shall not be affected by any other
means of adjustment or prevention that has been or may he established by agreement,
law, or otherwise • .. .
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reemploy, Or reinstate , Thomas Crogan , John H. Lennon, Jr., and Robert
McDonough, contrary to the provisions of Section 8 (a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
The Trial Examiner has found that the Respondent violated the Act by dis-
criminatorily discharging its employees Thomas Crogan, John H. Lennon, Jr,
and Robert McDonough, on or about October 17, 1951, and in failing to reemploy
or reinstate them in its employ, the Trial Examiner will therefore recommend
that Respondent take certain affirmative action designed to effectuate the policies
of the Act.
Having found that the Respondent discriminated with respect to the hire
and tenure of employment of Thomas Crogan, John H. Lennon, Jr., and Robert
McDonough, by discharging them because of their union membership and
activities, it will therefore be recommended that the Respondent offer them
immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights and privileges,
and make them whole for any loss of pay they may have suffered by reason of
the Respondent's discrimination against them .4
In view of the Respondent's discriminatory discharge of Crogan, Lennon,
and McDonough and its other acts of interference, restraint, and coercion,
there is danger that the commission of unfair labor practices generally is to
be anticipated from the Respondent's unlawful conduct in the past. The under-
signed will therefore recommend that the Respondent not only cease and desist
from the unfair labor practices found, but also cease and desist from in any
manner interfering with, restraining, or coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The operations of Stibbs Transportation Lines, Inc., constitute trade,
traffic, and commerce among the several States within the meaning of Section
2 (6) and (7) of the Act.
4 In accordance with the Board ' s consistent interpretation of the term , the expression
"former or substantially equivalent position" Is intended to mean "former position
wherever possible, but if such position is no longer in existence , then to a substantially
equivalent position." (See The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827 ) Consistent with the Board ' s policy in the method
of computing back pay, it will be recommended that the loss of pay be computed on the
basis of each separate calendar quarter, or portion thereof, during the period from the
discriminatory action to the date of a proper offer of reinstatement The quarterly periods,
hereinafter called quarters , shall begin with the first day of January , April, July, and
October. Loss of pay shall be determined by deducting from a sum equal to that which
he would normally have earned for each quarter , or portion thereof, his net earnings
( Crossett Lumber Company , 8 NLRB 440 ), if any, in other employment during that period.
Earnings in one particular quarter shall have no effect upon the back -pay liability for any
other quarter . It will also be recommended that the Respondent make available to the
Board , upon request , payroll and other records to facilitate the checking of the hack
pay due. F W. Woolworth Company, 90 NLRB 289.
STIBBS TRANSPORTATION LINES, INC. 443
2. Local 25, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 17 of the At, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Thomas
Crogan, John H. Lennon, Jr., and Robert McDonough , thereby discouraging
membership in a labor organization , the Respondent has engaged in and is
engaging in unfair labor'iractices within the meaning of Section 8 (a) (3) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in LOCAL 25, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL, or in any other labor organization of our employees by discriminating
in regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL. NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form, join, or
assist LOCAL 25, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activ-
ities, except to the extent that such 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 National Labor Relations Act.
WE WILL offer to Thomas Crogan, John H. Lennon, Jr., and Robert
McDonough immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to any seniority or other rights
and privileges previously enjoyed ; and we will make them whole for any
'loss of pay suffered as a result of the discrimination against them.
All our employees are free to become or remain members of the above-named
union or any other labor organization.
STIBBS TRANSPORTATION LINES, INC.
Employer.
By------------------------------------
(Representative) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and' must
not be altered, defaced, or covered by any other material.