Gainey v. Local 71, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 240

• Decision Date: 06 April 1960
• Docket Number: No. 240,240
• Citation: 113 S.E.2d 594,252 N.C. 256
• Court: North Carolina Supreme Court
• Parties: , 46 L.R.R.M. (BNA) 2342 George W. GAINEY, Orle M. Valentine, Junious Haywood, James H. Lollis, Newland D. Lattimore, Paul L. Teem, Nathan O. Andrews, William Fred Evitt, Wayne M. Barnes, Theron A. Wofford, Harry B. Chase, O. K. Towell, Wriston L. Deese, James H. Lewis, Sr., Hershell H. Darnell, Earnest E. Clemons, Joe Schlagenhauf, James A. Limbaugh, Henry A. Reed, Harry B. Upright, and Harry K. Cress, v. LOCAL 71, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA.

Page 594

113 S.E.2d 594

252 N.C. 256, 46 L.R.R.M. (BNA) 2342

George W. GAINEY, Orle M. Valentine, Junious Haywood, James H. Lollis, Newland D. Lattimore, Paul L. Teem, Nathan O Andrews, William Fred Evitt, Wayne M. Barnes, Theron A Wofford, Harry B. Chase, O. K. Towell, Wriston L. Deese James H. Lewis, Sr., Hershell H. Darnell, Earnest E Clemons, Joe Schlagenhauf, James A. Limbaugh, Henry A. Reed, Harry B. Upright, and Harry K. Cress, v. LOCAL 71, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA.

No. 240

Supreme Court of North Carolina.

April 6, 1960

Robert S. Cahoon, Greensboro, for defendant, appellant.

Pierce, Wardlow, Knox & Caudle, Charlotte, for plaintiffs, appellees.

PARKER, Justice.

This is a summary of the parts of plaintiffs' complaint necessary for decision:

The 21 plaintiffs are now over-the-road drivers and employees of Akers Motor Lines, Inc., a common carrier by truck of commodities in interstate commerce--hereafter called Akers. Originally there were 28 plaintiffs, but Dan W. Martin and six others have removed themselves as plaintiffs, as they are no longer employees of Akers. Plaintiffs, as a group, constitute some of the oldest drivers in point of service with Akers.

The employees of Akers, including the 21 plaintiffs, have been unionized and represented for many years by the defendant, an unincorporated labor union, as their exclusive bargaining representative under the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq., but until 1955 the defendant did not bargain for the owner-operators with respect to various matters.

Through the years plaintiffs were permitted to purchase, drive and maintain their own equipment, and were called owner-operators. Akers hired them as drivers, and rented their equipment.

Defendant, in order to have greater control over Akers' employees and to force Akers, and similar common carriers, to cease using owner-operators, negotiated and imposed on Akers a collective bargaining contract beginning 1 September 1955 and ending 31 August 1961, which made it economically impossible for Akers to continue its owner-operator contracts with plaintiffs. This collective bargaining contract applicable to all employees of Akers gave to plaintiffs, owner-operators, seniority as drivers from 1 September 1955, and seniority in all other respects, e. g., vacation rights, from the date of their employment by Akers. The effect of this contract, in not giving to plaintiffs as drivers credit for all the years they had been employees of Akers, deprived them, owner-operators, of their true seniority rights as drivers, based on the dates of their employment by Akers, in respect to lay-offs and bidding on runs and new equipment. If the plaintiffs were placed on the seniority list of drivers according to the dates of their employment by Akers, they would be near the top of the list, but having seniority as drivers only from 1 September 1955 by virtue of the 1955 collective bargaining contract, they are now near the bottom of the list. On 1 June 1956 Akers had 424 over-the-road drivers; on 1 June 1957, 360. Should there be many more lay-offs by Akers, plaintiffs will be laid-off, since lay-offs are determined by seniority.

Defendant in negotiating the 1955 collective bargaining contract was required to act for all the employees of Akers, whom it represented, when in fact the interests of plaintiffs were contrary and hostile to the interests of the 322 over-the-road drivers of Akers, and defendant could not be the bargaining representative of both groups of employees. That in negotiating and consummating the 1955 collective bargaining contract with Akers, defendant arbitrarily and discriminatively and in utter disregard of the minority rights of these plaintiffs deprived them of their true seniority rights as drivers and of their constitutional rights. Akers is willing to give plaintiffs credit for their length of service with it in preparing a seniority list of drivers, but is powerless to act by virtue of the 1955 collective bargaining contract with defendant.

Plaintiffs are entitled to have the seniority list of drivers revised to give them seniority as drivers from the dates of their employment by Akers, and will be irreparably damaged if such is not done. Wherefore, plaintiffs pray for injunctive relief requiring defendant to revise its seniority list of drivers immediately, in accordance with plaintiffs' rights, and prohibiting defendant from enforcing the 1955 collective bargaining contract so long as the discrimination against plaintiffs in respect to their seniority as drivers continues.

Akers filed with the court a Bill of Intervention stating that it has no objection to the court granting to plaintiffs the relief they request, and that it stands ready and willing to carry out any order or judgment of the court in respect to the seniority rights as drivers of plaintiffs. The court entered an order allowing Akers to intervene so as to be bound by any order or judgment of the court in the case.

Plaintiffs' evidence relevant for a decision of this appeal--defendant offered none--is in substance:

Akers had owner-operators prior to its unionization by defendant about 17 years ago. Before its unionization its employees had no seniority--seniority rights came with the union. After it was unionized defendant negotiated with it as the exclusive bargaining representative of its drivers. During this period of 17 years Akers and defendant entered into various collective bargaining contracts in respect to Akers' drivers. Prior to the 1955 collective bargaining contract between Akers and defendant, the contracts between Akers and defendant had no provision in respect to the payment by Akers to the owner-operators for the lease of their equipment--the rentals of leased equipment was set forth in individual leases between Akers and the owner-operators. The owner-operators were employees of Akers, were members of the defendant union, and paid union dues. The owner-operators were paid as drivers by Akers according to the prevailing union contract for drivers.

During the negotiations between Akers, and similar carriers, and defendant leading up to the execution of the 1955 collective bargaining contract, Akers, and other similar carriers, objected to the insertion in the 1955 contract of a provision covering the rentals to be paid for leased equipment owned by the owner-operators. James R. Hoffa, a member of the negotiating committee for defendant, said such a provision was going into the 1955 contract regardless of the objections of Akers, and the other carriers, and such a provision was incorporated in the 1955 contract as Article 28. Prior to the 1955 contract the owner-operators had no seniority as drivers--when the 1955 contract became effective on 1 September 1955, the owner-operators had seniority as drivers for Akers as of 1 September 1955. The over-the-road drivers of Akers, who were not owner-operators, had seniority as drivers before the 1955 contract--the 1955 contract did not change their seniority. After the execution of the 1955 contract Akers ceased using leased equipment owned by owner-operators, because of the added expense under the 1955 contract for the use of such equipment, except in the instance of a negro owner-operator called big Major, an employee of long years.

When Akers discontinued the use of owner-operators, these men, including the plaintiffs, chose to remain with Akers as over-the-road drivers. As far as their wages as drivers are concerned, these men make as much now as they did as owner-operators.

The men at the top of the seniority list as drivers have the choice over those beneath them on the list of trucks to drive, of preferred runs, etc.

Only five plaintiffs testified in the case. One of these, O. K. Towell, testified in substance: He was first employed by Akers as an over- the-road driver in 1947, then became a member of defendant union, was given seniority as such a driver from that date, and has paid union dues since. In about six months he became an owner-operator. When he voluntarily became an owner-operator, he had a copy of the union contract that provided that under no circumstances can an owner-operator hold seniority. He did not understand when he became an owner-operator he would lose his seniority, though he knew his name was taken off the seniority list when he became an owner-operator. When he became an owner-operator, he did not vote in union meetings. 'I knew during the ten years that I did not have seniority. ' His understanding was that when he gave up his truck, he would get his seniority back, but he can't 'point out' where he got the assurance, it is not in the union contracts. Under the 1955 contract he now has seniority as an over-the-road driver from 1 September 1955.

Wayne M. Barnes, another plaintiff, testified in substance: He began work for Akers as an over-the-road driver in 1944, became a member of the union, paid dues, and was placed on the seniority list. Five years later he became an owner-operator. 'I knew owner-operators were not on the seniority roster. I did not know that a driver lost his seniority by becoming an owner-operator. ' He testified on redirect-examination: 'Plaintiffs' Exhibit No. 4, which is the 1952 contract, says that an owner or part-owner under no circumstances can hold company seniority rights. I can find nothing in the contract dealing with what are the seniority rights of an owner-operator when he ceases to be an owner-operator and drives regular company equipment.'

Theron A. Wofford, another plaintiff, testified in substance: He began work for Akers as a driver in 1937. He became an owner-operator in 1951. 'According to the way the contract was set up there, the union said we couldn't have any seniority during the time we owned our trucks. ' There were a number of union contracts. He can read, and had copies of...