Denver-Chicago Trucking Co., Inc., 1416 (1961)

DECISION AND ORDER

On January 5, 1961, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceedings, 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practicess and recommended that the complaint be dismissed with respect to.

such allegations. Thereafter, the General Counsel and the Respondent each filed exceptions to the Intermediate Report and submitted supporting briefs.

Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Leedom, Fanning, and Brown].' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and finds merit in the Respondent's exceptions. Accordingly, the Board adopts the findings of the Trial Examiner only insofar as they are consistent with the following :

The Trial Examiner found that Respondent discharged Emmet Kirk and David Timmerman in violation of Section 8(a) (3) and (1) of the Act. We disagree. At the time these drivers were discharged Local Union No. 710, International Brotherhood of Teamsters, represented Respondent's employees under a collective-bargaining contract running from February 1, 1958, to January 31, 1961. Kirk was shop, steward for Local 710 and Timmerman was a driver for Respondent and a member of 710. The testimony relating to the cause for discharge is sharply disputed by the parties and the issue of credibility was resolved by the Trial Examiner in favor of the dischargees.

However, we do not consider it necessary to reach that issue.

The aforementioned collective-bargaining contract contained, in articles VII and VIII, lengthy grievance provisions which need not be set forth in full. That part of article VII, which is pertinent herein, reads:

'The Respondent's request for oral argument ' is' denied inasmuch as the positions of the parties are adequately set forth in the record and the briefs.

132 NLRB No. 123.

DENVER-CHICAGO TRUCKING COMPANY, INC. 1417

SECTION 1. The operators and the Union in each of the following states shall together create a permanent Joint State Committee for such state: [the States are then named, Illinois being among them]. The joint State Committee shall consist of an equal number appointed by Employers and Unions but no less than three from each group. Each member may appoint an alternate in his place. The Joint State Committee shall at its first meeting formulate rules of procedure to govern the conduct of its proceedings.

Each Joint State Committee shall have jurisdiction over disputes and grievances involving Local Unions or complaints by Local Unions located in its state.

* * * * * SEc. 4. It shall be the function of the various committees abovereferred-to to settle disputes which cannot be settled between the Employers and the Local Unions in accordance with the procedure established in Section 1 of Article VIII. [Emphasis supplied.] That part of article VIII, which is pertinent herein, reads :

SECTION 1. The Employer and the Union agree that there shall be no strike, lockout, tie-up, or legal proceedings without first using all possible means of a settlement, as provided for in this Agreement, of any controversy which might arise. Disputes shall first be taken up between Employer and the Local Union involved.

Failing adjustment by these parties, the following procedure shall then apply:

(a) Where a Joint State Committee, by a majority vote, settles a dispute, no appeal may be taken to the Joint Area Committee.

Such a decision shall be final and binding on both parties. [Emphasis supplied.] Kirk and Timmerman were both discharged from Respondent's employ as a result of telephone calls made by them from Angola,

Indiana., on May 23, 1959. Kirk was there because his truck had broken down and he was waiting relief and Timmerman was en route to Buffalo on a 'single' run.' They met at the Round-Up Cafe.

According to Timmerman, he had stopped at his home in Gary after leaving Chicago and found his wife unconscious on the floor. He telephoned his dispatcher asking to be relieved of his run, a request which was refused. After calling a doctor and a neighbor he continued until he met Kirk at Angola. Kirk telephoned Operations Manager Nolte at Chicago and, according to Kirk, explained Timmerman's situation to Nolte and suggested sending relief for Tim2 Timmerman was sent out on this run without a helper, according to the dispatcher, because none was available The dispatcher testified that the run required a helper and that lie sent him out with some hesitation.

merman. Nolte's version is that Kirk called and protested letting Timmerman make the single run to Buffalo and, as shop steward, refused to let Timmerman proceed. Nolte then discharged Kirk under article III of the contract and, when Timmerman refused to continue, told him he had quit. Article III of the contract provides, in part, as follows :

Job stewards and alternates have no authority to take strike action or any other action interrupting the Employer's business in violation of this agreement, except as authorized by official action of the Union. The Employer recognizes this limitation upon the authority of job stewards and their alternates. The Employer, in so recognizing such limitation, shall have the authority to render proper discipline, including discharge without recourse, to such job steward or his alternate, if he be an employee, in the event the job steward or his alternate has taken unauthorized strike action, slow down or work stoppage in violation of this agreement.

Following their discharges the Union took their grievance to the Joint State Committee, which heard the cases at a hearing on June 30 to July 1, 1959. The cases were presented by Mike Healy, the Union's business representative, who customarily presented Local 710 cases.

Subsequently, the Joint State Board issued decisions in some 30 grievances heard on those days. In Case No. 23-G its decision read as follows : ' The company is upheld in its discharge of Emmet Kirk for violation of Article III in that he took action beyond the authority and duties permitted in such Article which action resulted in a work stoppage and interruption of the company's business and operation.

In Case No. 23-H its decision read :

The company is upheld in its termination of D. Timmerman for willful and deliberate refusal to carry out a normal work assignment to the point of rejecting his employment with the company.

Thus, we are confronted squarely with the question whether the Board will honor the findings of the Joint Committee in accordance with the principles of the Spielberg case.3 It is clear, however, that the Board's jurisdiction over unfair labor practices is exclusive under the Act and that the Board is not, therefore, bound by an arbitration decision or by grievance procedures established by a collectivebargaining contract between the parties. In the Spielberg case the issue of the reinstatement of four strikers was submitted to arbitration by agreement between the Union and Respondent. A hearing 8 Spielberg Manufacturing Company, 112 NLRB 1080.

DENVER-CHICAGO TRUCKING COMPANY, INC. 1419 was thereafter. held at which three of the strikers appeared and testified and were represented by an attorney who submitted a brief on their behalf. The Board held that it was clear that the strikers, as well as-the Union, actively participated and acquiesced in the arbitration.

Distinguishing the facts in Spielberg from those in Monsanto Chemical Company, 97 NLRB 517, in which the decision of the arbitrators was contrary to the statute, and from those in Wertheimer Stores Corp., 107 NLRB 1434, where the arbitration proceedings were carried out over the opposition of the individual involved, the Board concluded in Spielberg :

In summary, the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act. In these circumstances we believe the desirable objective of encouraging the voluntary settlement of labor disputes will best be served by our recognition of the arbitrator's award.

The question presented here is whether the proceedings before the Joint, Committee meet the Spielberg standards of fairness and regularity. We note that both Kirk and Timmerman testified, at the Board hearing, that they had not been given a fair hearing before the Joint Committee. Kirk testified that he had.not been given an opportunity to state his case in full but had been interrupted while the Joint Committee interrogated one of his witnesses. He also testified that the Joint Committee gave him and his witness a 'tongue lashing.' (No reason nor explanation was given for this by Kirk.) He also stated that he tried to present a doctor's certificate certifying Timmerman's wife was sick on the date Timmerman was fired but that the Joint Committee refused to accept it on the ground they accepted the fact that his wife was sick. Kirk was asked to leave the room while his case was being decided and recalled when the Joint Committee announced its decisions in all the Denver-Chicago cases.

When his decision was announced, Kirk inquired as to the reasons and was told, 'That's none of your business,' after which he was led from the room.4

Timmerman's testimony was that he attended the hearing and that Union Representative Healy and Kirk were present, that he was...