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Flack v. National Labor Relations Board

November 7, 1963


Author: Duffy

Before DUFFY and CASTLE, Circuit Judges, and MAJOR, Senior Circuit Judge.

DUFFY, C. J.: Petitioner, Walter E. Flack, who appeared before us pro se, asks this Court to review and set aside an order of the National Labor Relations Board issued on March 6, 1963,*fn1 dismissing his unfair labor practice complaint against Cushman Motor Delivery Company (Company) and Local 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 710). The Intermediate Report of the Trial Examiner was favorable to the claims of the petitioner Flack.

The Regional office of the Board issued a complaint alleging that Local 710 caused the Company to discharge Flack because of his activities on behalf of Rebel Teamsters Union, an organization composed of dissident members of Local 710 and other labor organizations.

The Company employs both City Drivers and Over-the-road Drivers. City drivers are represented by Truck Drivers Independent Union (Independent). The dock hands are represented by Local 710.

Petitioner was employed by the Company as a City Driver and is a member of Independent. He had worked for the Company since 1953, and had been discharged in December 1960 for alleged refusal to make out daily reports.*fn2 He was reinstated in June 1961 with the assistance of Independent.

In July 1961, Flack became active on behalf of Rebel Teamsters Union in Chicago. Flack distributed Rebel Union literature among both members of the Teamsters and Independent Locals. The purpose of the Rebel movement, according to Flack, was to secure honest administration of existing Teamsters and Independent Unions and to impove grievance procedures.

On September 11, 1961, shortly after Flack had reported for work, Peter Janopoulos, business representative for Local 710, approached him in front of about thirty other company drivers. He swore at Flack, used obscene language, and threatened to break Flack in half. He told Flack that the latter could not pass out literature or talk against Local 710, and threatened him with great personal violence and stated he would run Flack off of any 710 dock that Flack was on.

After the incident, Flack received his load and attempted to deliver it. Because the day was a high Jewish Holy Day, the employee who would normally receive the load, was absent from work so Flack had to return the load to the Company. Upon his return, about 10 a. m., Flack asked to be relieved because he was ill. His dispatcher permitted him to take off the balance of the day. Flack testified he was upset by the threats of Janopoulos.

Flack drove his auto to a police station and filed a complaint against Janopoulos. He then visited Burns, President of the Rebel Teamsters Union, and informed him of the events hereinbefore described. Burns contacted several TV stations, and newsreel cameramen were sent to Burns' office where Flack gave a statement before the cameras describing how Janopoulos had threatened him because of his Rebel Teamsters Union activities. Further newsreel shots were taken later in the afternoon. The Company was aware that the newsreels were telecast on Chicago stations that evening.

Clairmont Work Stoppage

On October 11, 1961, about 1 p. m., Flack arrived at the Clairmont Transfer Company's dock. He proceeded to that part of Clairmont premises where bills of lading are posted. He did so in order to deliver the bill for the consignment he carried and thereby to have his truck unloaded in turn. While going to and from the bill rack, Flack distributed literature of the Rebel Teamsters Union to various employees of Clairmont. He also distributed such literature to various truck drivers as they arrived at the Clairmont dock. Some of the literature referred to James Hoffa as "Little Caesar" and that on an occasion mentioned, Hoffa had told the free press to "Get the Hell out of Here."

The Trial Examiner pointed out that under his Union contract, Flack was entitled to take one hour for lunch at any time between 11 a. m. and 2 p. m., and that Flack arrived at the Clairmont dock at 1 p. m. It does not appear whether Flack actually ate his lunch there, but while he was sitting in his trailer and shortly after 2 p. m., he was summoned to answer a telephone call from Barney Cushman, President of the Company. Cushman told Flack of complaints he had received, that Flack was interfering with the drivers' work at the dock. Cushman said to Flack that he didn't care about his (Flack's) Union activity, but he was not to distribute literature on company time. Flack retorted that his activities were during his lunch hour and not on company time. Cushman stated he would give Flack a "warning notice."

Flack returned to his truck which had not been unloaded. A few minutes later, three Local 710 organizers arrived. One of them, Bonarigo, told Flack he could not pass out pamphlets. Then Daniel White, Clairmont's manager, told Flack he would not accept his freight. Flack was instructed by his dispatcher to take the freight to another terminal which he did. In talking to Cushman by phone, White asked why the ...

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