National Labor Rel. Bd. v. DALLAS GENERAL DRIVERS, ETC.

• Decision Date: 17 January 1956
• Docket Number: No. 15589.,15589.
• Citation: 228 F.2d 702
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DALLAS GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

228 F.2d 702 (1956)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DALLAS GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, Respondent.

No. 15589.

United States Court of Appeals Fifth Circuit.

January 17, 1956.

Norton J. Come, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Theophil C. Kammholz, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Robert G. Johnson, Atty., N. L. R. B., Washington, D. C., for petitioner.

L. N. D. Wells, Jr., Houston Clinton, Jr., Mullinax & Wells, of Dallas, Tex., for respondent.

Before BORAH and JONES, Circuit Judges, and DAWKINS, District Judge.

DAWKINS, District Judge.

The Board petitions for enforcement of its order against the respondent union, growing out of unfair labor charges filed by four employees of North East Texas Motor Lines, Inc., an interstate trucking concern, herein called the Company. The charges were made against both the Company and the Union, and the Board's order was directed to both. However, since the Company has undertaken to comply, the Board petitions for enforcement only as against the Union. The order is based upon the Board's finding that the Union violated Sections 8 (b) (2) and 8(b) (1) (A) of the National Labor Relations Act, 29 U.S.C.A. § 158(b) (2), (1) (A), by causing the company to discriminate against the four employees and by maintaining and enforcing a provision of its collective bargaining contract.

The contract was known as "Southwestern Area Over-The Road Motor Freight Agreement," effective February 1, 1952, through January 31, 1955; and it contained seniority provisions quoted in the margin.¹ Contracting parties were several local unions of the International Brotherhood of Teamsters, etc., and a group of interstate trucking firms. One of the employer firms was the Company's predecessor which operated its Texas business out of terminals located at Dallas, Greenville, Sherman and Paris. The drivers operating out of Dallas, Greenville and Sherman were members of and represented by the respondent Union, while Paris drivers belonged to and were represented by Local No. 848 of Little Rock, Arkansas.

In May, 1953, when the Company acquired the business of its predecessor, it decided to expand the Dallas terminal and close the terminals at Greenville, Sherman and Paris; and drivers operating from these latter points were given an opportunity to move to Dallas not later than June 22nd. By agreement of the two local unions, in which the Company assented, it was determined that transfer would be made on the basis of terminal seniority,² but apparently no formal decision was made as to the arrangement of seniority upon arrival in Dallas.

On June 22nd, under the direction of representatives of the respondent Union, the Company's supervisor prepared a seniority list for all drivers then operating out of the Dallas terminal. The five drivers who had been at Dallas when the transfers were begun were placed at the head of the list; they were followed by drivers from Sherman and Greenville in the order of company seniority; and the Paris drivers as a group were placed last on the list. Two additional or supplementary seniority lists were prepared on July 24th and September 2nd, and the Paris drivers as a group remained at the bottom of both. Subsequent to their arrivals in Dallas and the posting of seniority lists, all of the Paris drivers became members of respondent local.

The Trial Examiner found that the italicized portions of Section 2 of the contract, quoted in footnote 1, was violative of the Act as held in Pacific Intermountain Express Co., 107 N.L.R.B. 837 and that the acts of the Union in forcing the Company to place Paris drivers at the bottom of the list irrespective of the dates of their arrivals in Dallas constituted discrimination against the Paris drivers and in favor of those from Greenville and Sherman. With modifications not relevant here, the Board upheld his findings. The issues presented may be summarized: (1) Does the six-month limitation of Section 10(b) of the Act, 29 U.S.C.A. § 160(b) apply; (2) Does the record as a whole support the finding of discrimination against the Paris drivers; and (3) Are the contract provisions violative of the Act?

I.

The charges were served upon respondent on December 23, 1953, and it vigorously urges that any discrimination proved occurred not later than June 22nd of that year, thus bringing into effect the six-month bar or limitation period prescribed in Section 10(b) of the Act. The argument is that by June 22nd all drivers had been transferred to Dallas and all decisions with respect to seniority had been made; that the seniority list prepared and posted on June 22nd is therefore the only basis for a charge of discrimination, since the only changes made on the supplementary lists were within the Paris group, citing primarily the decisions of this Court in American Federation of Grain Millers, A. F. of L. v. N. L. R. B., 5 Cir., 197 F.2d 451, and N. L. R. B. v. Newton, 5 Cir., 214 F.2d 472, and the Board's own decision in Bowen Products, 113 N.L.R.B. 63.

The Board made no specific holding on this point, but affirmed the rulings of the Trial Examiner. The latter considered that the contract provisions were discriminatory and violative of the Act and that maintenance and enforcement of those provisions constituted a continuing violation of the Act.

We agree with the Trial Examiner that the cases relied upon by respondent are not apposite here. The unfair practice upon which the charge was based in the Grain Millers case was the refusal of the employer to bargain; and this Court merely held that the original refusal, occurring outside the six-month period, did not create a continuing violation where no further request to bargain was made by the employees or their Union. In the Newton case, this Court simply held that the Board could not include in its complaint an allegedly discriminatory discharge of an employee which occurred more than six months prior to the service of the charge. In the Bowen Products case, the Board itself distinguished the type of situation presented here.

There arose a controversy about the placement of the Paris drivers on the seniority list of June 22nd, and it continued for some time. The Union made or caused to be made new seniority lists in July and September, well within the six-month period, and on each of these lists the Paris drivers were again placed in a group at the bottom, following all Greenville and Sherman drivers. While the Union urges that changes were made only within the Paris group and that the placement of the group was pursuant to the course of action decided upon on or before June 22nd, we think that the preparation and posting of new and revised lists were entirely separate and distinct acts from those of June 22nd, and if discriminatory or otherwise violative of the Act, could be prosecuted in this proceeding.

Moreover, if the contract provision giving the Union sole power to settle seniority disputes violated the Act, or if the Union exercised that power discriminatorily, each time it did so constituted a separate and distinct act, whether or not the decision so to act was made outside the six-month period. See N. L. R. B. v. George D. Auchter Co., 5 Cir., 209 F.2d 273. The Eighth Circuit so held in an almost identical case, N. L. R. B. v. International Brotherhood of Teamsters, etc., 225 F.2d 343.

II.

Dunn, a stockholder and the line driver supervisor of the Company, testified that he made up the June 22nd and July 24th seniority lists at the express direction of Stanford, business agent for the respondent local, and that Stanford himself prepared the list of September 2. Further, Dunn stated that in so far as he was concerned there was no over-all pattern for determining relative seniority between Paris drivers and those from Greenville and Sherman, and that the Paris drivers were placed at the end of all lists only because Stanford so directed.

Stanford did not deny that he directed Dunn in the making of the first two lists,...