Brotherhood of Railway Airline & Steamship Clerks, 126 (1969)

Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO; and Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, Local 1902, AFL-CIO (Safety Cabs, Inc., and New Deal Cab Company, Inc.) and Albert D. Edwards. Case 12-CB-1029

December 15, 1969 DECISION AND ORDER

BY MEMBERS FANNING, BROWN, AND ZAGORIA On June 30, 1969, Trial Examiner Marion C.

Ladwig issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting memorandum.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel.

The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed ; except as noted below the rulings are hereby affirmed.' The Board has considered the Trial Examiner's Decision, the exceptions, the memorandum, and the entire record in this case and finds merit in the Respondents' exceptions.

Accordingly, the Board adopts the Trial Examiner's findings, conclusions , and recommendations only to the extent that they are consistent with the following.

  1. In agreeing with the Trial Examiner 's finding that the Board has statutory jurisdiction herein, we rely in the circumstances of this case only on the recent commerce data stipulated in the 1968 representation case involving the Respondents and the Employer.' 2. The Trial Examiner found that the Respondents caused the Company (Safety Cabs,

    Inc.) to refuse employment to Edwards because of 'At the hearing, Edwards, the Charging Party, began to testify as to what he was told by Marvin Marion , the vice president of Safety Cabs,

    Inc The Respondents' counsel made timely objection on the grounds that the testimony was hearsay. The Trial Examiner ruled that the testimony would be received but not as to the truth or falsity thereof. On the following day after Edwards had finished testifying the Trial Examiner's reversed his ruling and stated that he was receiving the testimony not only for the fact that it was made by the Employer, but also for the truth or falsity of the matter contained therein. The Respondents contend the Trial Examiner's ruling resulted in gross prejudice to them In view of our findings herein , we find it unnecessary to pass on or comment on the Trial Examiner's ruling in this regard.

    'Safety Cabs, Inc, 173 NLRB No 4.

    his activities on behalf of a rival union in violation of Section 8(b)(2) and (1)(A) of the Act. We do not agree.

    The occurrences with which we are concerned herein followed a hard-fought election campaign in which Local 1902's predecessor replaced Local 512,

    International Brotherhood of Teamsters as bargaining representative of the taxi drivers employed by the Employer (Safety and New Deal Cab companies).' On August 14, 1968, Edwards, the Charging Party, resigned from the Taxi Drivers Union organizing committee; in September he quit his job with Safety as a taxi driver to become a Teamsters business agent and campaign against the Taxi Drivers Union. The Taxi Drivers Union won the election held on October 25, 1968. On January 3, 1969, Edwards lost his job as Teamsters business agent, and thereafter allegedly sought employment with the Employer.

    Initially, we note that the only evidence adduced with regard to the Company's position on employing Edwards came from his testimony of conversations he had with the Company officials, in which, the Trial Examiner found, it was intimated that the Union was keeping Edwards from working. Not only does this fail to assert a positive statement to this effect, but no company official testified at the hearing to substantiate Edwards' claim. The Respondents contend that such testimony is hearsay as regards the Respondents and cannot be used as evidence of the Respondents' alleged attempt to cause the Company to refuse to employ Edwards.

    We agree.' The Trial Examiner found that there is nonhearsay evidence which shows that the Respondents caused the Company to refuse employment to Edwards. In our opinion, the only evidence that would tend to to support the allegation is Edwards' testimony that on January 24 or 31

    Fitzgibbons, the Railway Clerks director of organization, told Edwards:

    He [Company Vice-President Marvin] talked to me. He told me about givin' you a week's work at the airport, which he broke his promise to me. I want you to understand that the [Railway Clerk's] don't owe you anything .... I told the men about it, and they voted unanimously no -speakin' about my [Edwards'] job.

    But, there is one thing, if you will raid the Teamsters or raid the companies that are under contract with the Teamsters, and get 'em on [Railway Clerks] pledge cards, I'll see what I can do about gettin' your job back.

    'Taxi Drivers' Union, Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express & Station Employees, AFL-CIO (herein Taxi Drivers Union) was certified by the Board on November 5, 1968 On January 1, 1969, Taxi Drivers Union was chartered by Brotherhood of Railway, Airline and Steamship, Freight Handlers, Express and Station Employees, AFL-CIO as Local 1902

    See, Carpet Man, Inc, 170 NLRB No 45, Gouverneur Iron Works, 149 NLRB 316; N L .R B. v. Local 776 IATSE (Film Editors ), 303 F.2d 513, (C A. 9).

    180 NLRB No. 21

    BROTHERHOOD OF RAILWAY AIRLINE &,STEAMSHIP CLERKS 127

    Fitzgibbons denied Edwards' version of the conversation; the Trial Examiner credited Edwards.

    The remainder of the evidence set forth by the Trial Examiner to support his 8(b)(2) and (l)(A) finding establishes only that there was considerable ill-will toward Edwards because of his activities during the election campaign, and that the union membership and officers may have been reluctant to receive him back into the Union.' But in this case where the collective- bargaining agreement between the Respondents and the Employer neither includes an exclusive referral procedure nor requires union membership at any time, that reluctance was no ,impediment to hiring Edwards. Viewed in this light the other evidence upon which the Trial Examiner relied does not support his finding that the Respondents attempted to cause the Employer to refuse employment to Edwards. Thus, Fitzgibbons' statement to taxidriver O'Quinn that, 'if [the union membership] wanted [Edwards] back, they'd put him back,' indicates only that the membership would have to decide whether they wanted Edwards in the Union.6 Likewise union president Lytwinick's comment to O'Quinn that Edwards was a turncoat and 'that we don't need him back in our Union' indicates only that Lytwinick was not overly fond of Edwards. Neither of these incidents establishes an 8(b)(2) or (1)(A) violation.

    In this regard we note that the Trial Examiner has not referred to unrefuted testimony which would indicate that the Respondents were not concerned whether Edwards returned to work for the Employer. Thus, he failed to mention that according to O'Quinn's undenied testimony Union secretary-treasurer Daley, in response to an inquiry about Edwards, told him that it did not matter to him (Daley) and 'he didn't have no objection about [Edwards] gettin' his job back.' The Trial Examiner indicates that taxi driver Evors credibly testified that Lytwinick told him, 'that it wasn't anything personal, it was just the fact that part of the membership disagreed on his actions he took when we were organizin' ',but does not mention Evors' further undenied testimony that, 'Mr. Fitzgibbons at no time made any remark about the employment of Mr. Edwards to me.' 17

    And, finally, the Trial Examiner failed to mention Lytwinick's uncontradicted testimony that he had talked to Marvin (vice president of Safety Cabs) in January or February upon...

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