Teamsters Local 439 (University of the Pacific)Download PDFNational Labor Relations Board - Board DecisionsNov 7, 1997324 N.L.R.B. 1096 (N.L.R.B. 1997) Copy Citation 1096 324 NLRB No. 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 In agreeing with the judge that the Respondent Union violated Sec. 8(b)(1)(A) by disciplining employee-member Rojas, we rely on the fact that Rojas’ duties as a leadperson required him, inter alia, to report any work rule infractions to the Employer and the Re- spondent Union’s trying and fining him for this affected his employ- ment status. Carpenters District Council of San Diego (Hopeman Bros.), 272 NLRB 584 (1984); and Chemical Workers Local 604 (Essex International), 233 NLRB 1239 (1977). 2 We have modified the judge’s Order to make clear that the make-whole remedy includes any lost wages that Rojas may have in- curred in defending himself before the Union’s executive board and Joint Council of Teamsters Local 38. Sheet Metal Workers Local 530 (Dynamics Corp.), 312 NLRB 229, 234 (1993). General Teamsters Local No. 439, International Brotherhood of Teamsters, AFL–CIO and Luis Rojas and University of the Pacific. Case 32– CB–4602 and 32–CB–4604 November 7, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS On April 28, 1997, Administrative Law Judge Wil- liam L. Schmidt issued the attached decision. The Re- spondent Union filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rul- ings, findings, and conclusions,1 and to adopt the rec- ommended Order as modified.2 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Gen- eral Teamsters Local No. 439, International Brother- hood of Teamsters, AFL–CIO, Stockton, California, its officers, agents, and representatives, shall take the ac- tion set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). ‘‘(a) Rescind in full the fine assessed against Luis Rojas on or about December 4, 1995, refund to Rojas any amounts he has paid in satisfaction of that fine, and make Rojas whole for all travel or other expenses including any lost wages he may have incurred to at- tend and defend himself at the proceedings before the executive board and before the Joint Council of Team- sters Local 38 on November 8, 1995, and January 30, 1996, respectively, together with interest as provided in the remedy section of the judge’s decision in this case.’’ 2. Substitute the attached notice for that of the ad- ministrative law judge. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT impose a fine against an employee- member because he or she reports another employee- member to his or her employer for work rule infrac- tions, at a time when the employee-member’s work du- ties require such reports. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL fully rescind the fine assessed against Luis Rojas on or about December 4, 1995, and WE WILL re- fund to Rojas any amounts he paid in satisfaction of that fine and make him whole for all travel or other expenses including lost wages he may have incurred to attend and defend himself at the proceedings before our executive board and before the Joint Council of Teamsters Local 38 on November 8, 1995, and January 30, 1996, respectively, together with interest as re- quired by law. Within 14 days from the date of this Order, remove from its files, and ask the Employer to remove from the Employer’s files, any reference to the unlawful dis- charge, and within 3 days thereafter notify the em- ployee in writing that it has done so and that it will not use the discharge against him in any way. WE WILL, within 14 days from the date of this order, request that the Joint Council of Teamsters Local 38 purge its records of the proceeding brought against Luis Rojas in connection with the citation dated August 15, 1995, and WE WILL furnish Rojas with a copy of this request. GENERAL TEAMSTERS LOCAL NO. 439, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL–CIO VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 01096 Fmt 0610 Sfmt 0610 D:\NLRB\324.129 APPS10 PsN: APPS10 1097TEAMSTERS LOCAL 439 (UNIVERSITY OF THE PACIFIC) 1 The pertinent events here occurred between July 1995 and the fil- ing of the UOP charge. Unless noted otherwise, all further dates refer to the calendar years in that period. 2 The relevant portion of Sec. 8(b)(1)(A) provides that it is an un- fair labor practice for a labor organization ‘‘to restrain or coerce . . . employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; . . . .’’ Section 7 gives employ- ees the right to engage in union or concerted activities or to refrain from engaging in those activities. 3 The exact nature of Lynch’s discipline at this time is unknown. However, documents from the internal union proceeding indicate that at some point, UOP terminated Meneses and suspended Silva but they do not reflect that these severe disciplinary measures resulted solely from Rojas’ report to Lynch involved here. Daniel Altemus, Esq., for the General Counsel. David Rosenfeld, Esq. (Van Bourg, Weinberg, Roger & Rosenfeld), of Oakland, California, for the Respondent. James E. Mesnier, Esq. (Cook, Brown, Rediger & Prager), of Sacramento, California, for Charging Party University of the Pacific. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. Luis Rojas (Rojas) filed the charge in Case 32–CB–4602 on April 26, 1996; University of the Pacific (UOP) filed the charge in Case 32–CB–4604 on May 3.1 Based on those charges, the General Counsel’s complaint, as amended, alleges that General Teamsters Local No. 439, International Brotherhood of Teamsters, AFL–CIO (the Respondent or Local 439), en- gaged in an unfair labor practice within the meaning of Sec- tion 8(b)(1)(A) by citing, trying, and fining Rojas on an in- ternal union charge for bringing ‘‘harm to fellow union members.’’ The General Counsel contends that Local 439’s internal action against Rojas was premised on his perform- ance of ‘‘a routine and required function’’ of his leadperson position at UOP. Although Local 439 admits that it proc- essed internal union charges against Rojas, it contends that it was legally privileged to do so based on the 8(b)(1)(A) proviso and, hence, it denies the unfair labor practice al- leged.2 I heard this case at Oakland, California, on January 28, 1997. Having carefully considered the record, the demeanor of the witnesses while testifying, and the posthearing briefs of the General Counsel and Local 439, I have concluded that Local 439 violated Section 8(b)(1)(A), as alleged, based on the following FINDINGS OF FACT I. JURISDICTION AND ORGANIZATIONAL STATUS Respondent admits that it is a labor organization within the meaning of Section 2(5) of the Act and that it is an asso- ciation with a place of business in Stockton, California, where it represents employees in bargaining with employers. At material times, Respondent has been affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, whose headquarters are located in Washington, D.C. In the course of its business op- erations in the 12 months prior to the issuance of the com- plaint, Respondent purchased and received goods or services valued in excess of $5000 which originated outside the State of California. At material times, UOP, a California corporation, has been engaged in the operation of a private university on a 175- acre campus in Stockton. During the past 12 months, UOP derived gross revenues in excess of $1 million from the con- duct of its business operations. Respondent admits that UOP is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. As described in more detail below, Local 439 represents certain UOP employees and has maintained a series of col- lective-bargaining agreements with that educational institu- tion. Accordingly, I find that the National Labor Relations Board (the Board) has jurisdiction to resolve this labor dis- pute and that it would effectuate the purposes of the Act for it to do so. II. THE ALLEGED UNFAIR LABOR PRACTICE For some time Local 439 has represented UOP’s custodial employees and has entered into a series of collective-bargain- ing agreements with UOP applicable to that unit. The custo- dial leadpersons are included in the unit represented by Local 439. The custodial collective-bargaining agreement in effect from September 1993 through August 1996 provides that leadpersons may perform unit work and also vests leadpersons with ‘‘authority to direct and recommend dis- cipline’’ of unit employees. UOP’s physical plant department includes a staff of 40 to 45 employees who perform custodial services at the univer- sity facilities. At relevant times, Gary Lynch managed the custodial personnel who are organized into five crews. Each crew has a leadperson who, in addition to performing regular unit work, oversees the crew’s work and reports to Lynch about the crew’s performance. For the past few years, Luis Rojas has been employed by UOP on its custodial staff. In or about May 1995, Lynch promoted Rojas to a leadperson position. At that time Lynch told Rojas that his leadperson responsibilities included ‘‘monitoring [unit] work and employees in his group’’ and about his expectation that Rojas would report ‘‘any problems he may have with personnel, such as unsafe work practices or taking a long break or non-performance of their job.’’ In- deed, Lynch testified that he has demoted a leadperson who failed to provide him with such reports. In mid-July 1995, Rojas reported to Lynch that he came upon four custodians, Jesse Silva, Andrea Meneses, Lupe Torres, and Lolita Sailot, in a custodial closet, a room dedi- cated for the storage of custodial supplies, during their regu- lar worktime. According to Lynch, Meneses and Silva had been assigned to clean in another building and, consequently, had no apparent reason for being away from their worksite. By Lynch’s account, Rojas reported that he found Meneses and Silva simply sitting in the closet when he entered to search for or deliver some supplies. Although Rojas made no recommendation of any sort about discipline, Lynch subse- quently took disciplinary action against Meneses and Silva based on Rojas’ report.3 VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 01097 Fmt 0610 Sfmt 0610 D:\NLRB\324.129 APPS10 PsN: APPS10 1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 In the Local 439 proceeding, it appears that the executive board entertained a litany of complaints from unit members, including Meneses and Silva, about Rojas’ actions as a leadperson. However, the proceedings before Joint Council 38’s trial board narrowly fo- cused on Rojas’ report to Lynch about Meneses and Silva apparently because UOP refused to release anyone other than Hisel and Rojas from work to attend the trial board’s hearing. Thereafter, Union Steward Brian Hisel filed an internal union ‘‘citation’’ dated August 15 which claimed that Rojas had violated the collective-bargaining agreement, the local union bylaws, and the International union constitution by ‘‘[t]urning in union members to management for disciplinary action against union members for personal gain.’’ Following notices about the charges Local 439’s executive board con- ducted a hearing on Hisel’s citation on November 8. Subsequently, Local 439’s secretary-treasurer, Pat Miraglio, issued the executive board’s decision dated Decem- ber 4. In its decision the executive board found that Rojas ‘‘caused harm to harm to his fellow members by bringing details to the attention of management.’’ It assessed a $500 fine against Rojas but held $400 in ‘‘abeyance’’ for 1 year on the condition that Rojas ‘‘must not engage in any such behavior or the entire amount of the fine [would] become due and payable in addition to any fines that may be the sub- ject of additional charges.’’ In accord with his right as a member, Rojas appealed the executive board’s decision to Joint Council of Teamsters Local 38 in Modesto, California. A trial board for Joint Council 38, in effect, conducted a de novo hearing on the matter. That trial board subsequently found Rojas ‘‘guilty be- cause he admitted that he turned people in [to manage- ment].’’4 In a ruling dated April 15, it upheld the charges against Rojas, dismissed his appeal, and ordered him to pay the fine levied by Local 439. Rojas and UOP filed the charges in this case shortly thereafter. The fallout from the closet incident continued to the next negotiations when Local 439 sought some assurance that the leadpersons would first make an inquiry of the employees concerning apparent work rule violations before reporting the matter to the custodial supervisor. Consequently, the parties negotiated a memorandum of understanding with the 1996– 1999 agreement which provided, in essence, that the leadperson would report a ‘‘violation’’ only if the employee response was ‘‘not acceptable or requires follow-up, com- plete investigation.’’ According to Joe Kirim, the director of UOP’s physical plant, Local 439 complained at negotiations because Rojas was ‘‘turning in other members’’ without in- vestigating to find out what was going on. Kirim agreed to the memorandum of understanding even though he believed that Rojas acted properly in the incident involving Meneses and Silva. III. ARGUMENT AND CONCLUSIONS The General Counsel argues that Rojas’ duties as a leadperson included ‘‘making sure that the employees in his group were working when they were supposed to be’’ and that it was his ‘‘responsibility to report any incidents [to management] where employees were not working as sched- uled.’’ The General Counsel further asserts, in effect, that Rojas acted within the scope of his job responsibilities by in- forming Lynch that he had come upon Meneses and Silva outside their work area during their worktime. Citing Car- penters District Council of San Diego (Hopeman Bros.), 272 NLRB 584 (1984), and Chemical Workers Local 604 (Essex International), 233 NLRB 1239 (1977), the General Counsel contends that Local 439’s fine levied against Rojas for per- forming his employer-assigned tasks violated Section 8(b)(1)(A). Local 439 argues that the collective-bargaining agreement defines the leadperson’s responsibilities and that Rojas acted outside the scope of those contract-defined responsibilities. Thus, Local 439 asserts that Rojas had a contractual duty to inquire into the reasons for the employees’ absence from their assigned work area and to direct them to return to their regular area absent some good reason for them to be where they were found. In effect, Local 439 believes that Rojas would have been justified in reporting the incident to Lynch only if the two employees ignored his direction to return to work or if he repeatedly found the employees outside their assigned area. As Rojas failed to speak to the employees at all, Local 439 contends that its internal discipline was legally justified to compel Rojas’ compliance with the collective- bargaining agreement. In support Local 439 cites Sterling Boiler & Mechanical, Inc., 319 NLRB 434 (1995); Letter Carriers, Branch 9, 316 NLRB 1294 (1995); and Auto Work- ers Local 933 (Allison Gas), 307 NLRB 1065 (1992). These findings control the outcome of this case: (1) Rojas was a nonsupervisory UOP leadperson and a member of Local 439 at relevant times; (2) Lynch expected and in- structed Rojas to report infractions of UOP’s work rules; (3) Rojas risked demotion from his leadperson position by fail- ing to report work rule infractions; (4) Rojas reported an in- fraction of UOP’s rules by Meneses and Silva to Supervisor Lynch who, in turn, disciplined those two employees; and (5) Local 439 imposed a fine against Rojas for reporting the rule infraction by Meneses and Silva. The Carpenters and the Chemical Workers cases cited by the General Counsel, are indistinguishable from this case. In those cases the Board, virtually without comment, adopted the conclusion reached by the respective administrative law judges that a union violates Section 8(b)(1)(A) by disciplin- ing a leadperson-member for reporting work rule infractions to supervision as required. Without belaboring the point, I find that those cases (especially the Carpenters case) control the outcome here. Suffice it to say, however, that I do not share the concern expressed by some of my former col- leagues in their decisions concerning the absence of ‘‘con- certed activity’’ on the part of the leadpersons in cases of this nature. The short answer to their concern is that the leadperson-member in these cases, in effect, refrains from acting in concert with other employee-members who seek to cover up work rule infractions and thereby avoid discipline. As Section 7 protects both those employees who engage in concerted activity as well as those who refrain from engaging in concerted activity, a leadperson’s refusal to participate in this type of concerted activity because of a legitimate affirm- ative duty imposed by the employer is protected by law. Local 439’s argument that its internal union discipline against Rojas was designed to enforce the collective-bargain- ing agreement lacks factual support. Obviously, the provision in the 1993–1996 collective-bargaining agreement related to the leadpersons is not the sum and substance of their job de- scription. Hence, I cannot conclude as Local 439 ar- VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 01098 Fmt 0610 Sfmt 0610 D:\NLRB\324.129 APPS10 PsN: APPS10 1099TEAMSTERS LOCAL 439 (UNIVERSITY OF THE PACIFIC) 5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ gues that Rojas was duty bound by the bargaining agreement to speak to the errant employees first and ignore his super- visor’s directive about reporting such matters unless the em- ployees exhibited immediate insubordination or a proclivity to leave their work area. Clearly the 1993–1996 agreement (in effect when these events occurred) imposes no limitation at odds with UOP’s requirement that leadpersons report all infractions to their supervisors. And at least until the 1996– 1999 agreement, Rojas’ employer expected him to do just that. Hence, Local 439’s agreement-based argument is far too tenuous for me to conclude that Local 439 had an overriding legitimate interest to protect by means of its internal discipli- nary procedure. Accordingly, on the basis of the General Counsel’s prece- dent, I find that the fine which Local 439 levied against Rojas directly affected his employment status and thereby violated Section 8(b)(1)(A) as alleged. CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. UOP is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. At all material times, Respondent was the exclusive bar- gaining representative within the meaning of Section 9(a) of the Act of UOP’s custodial employees, including the custo- dial leadpersons. 4. By the fine levied against him on or about December 4, 1995, Respondent restrained and coerced Luis Rojas and other similarly situated employees within the meaning of Section 8(b)(1)(A) of the Act. THE REMEDY Having found Respondent engaged in certain unfair labor practices, I recommend that it be ordered to cease and desist therefrom and take the following affirmative action designed to effectuate the purposes of the Act. Thus, my recommended Order requires that Local 439 re- scind the fine it levied against Luis Rojas on December 4, 1995, and refund any moneys Rojas may have paid in satis- faction of that fine. In addition, as the record reflects that Rojas appeared before Local 439’s executive board on No- vember 8 as well as the Joint Council trial board on January 30 in an effort to defend against the charges brought against him, Local 439 is required to reimburse Rojas for any travel and other expenses as determined in the compliance stage of this proceeding he may have incurred in this effort. Laborers Northern California Council (Baker Co.), 275 NLRB 278 (1985). Interest computed as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987), shall be added to these amounts. Moreover, Local 439 is required to remove from its records any reference to the internal proceedings against Rojas which are the subject of this case and notify Rojas in writing that this action has been taken and that this matter will not be considered in any future proceedings. Local 439 is also required to request that the Joint Council of Teamsters Local 38 purge its records of this matter and furnish Rojas with a copy of that request. Finally, Local 439 is required to post official notices to members concerning this matter and to provide signed copies of that notice to UOP for posting if it so desires. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended5 ORDER The Respondent, General Teamsters Local No. 439, Inter- national Brotherhood of Teamsters, AFL–CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Imposing a fine on any employee because he or she reports another employee-member to his or her employer for work rule infractions, at a time when it is part of the work duties of the employee who makes the report to do so. (b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by Sec- tion 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Rescind in full the fine assessed against Luis Rojas on or about December 4, 1995, refund to Rojas any amounts he has paid in satisfaction of that fine, and make Rojas whole for all travel or other expenses he may have incurred to at- tend and defend himself at the proceedings before its execu- tive board and before the Joint Council of Teamsters Local 38 on November 8, 1995, and January 30, 1996, respectively, together with interest as provided in the remedy section of the judge’s decision in this case. (b) Within 14 days from the date of this Order, remove from its files any and all references to the internal union pro- ceedings against Luis Rojas in connection with the citation dated August 15, 1995, and within 3 days thereafter notify Rojas in writing that it has done so and that it will not use this matter against him in any way. (c) Within 14 days from the date of this Order, request that Joint Council of Teamsters Local 38 purge its records of the proceedings brought against Luis Rojas in connection with the citation dated August 15, 1995, and concurrently furnish Rojas with a copy of this request. (d) Within 14 days after service by the Region, post at its office in Stockton, California, and other places where notices to its members are customarily posted copies of the attached notice marked ‘‘Appendix.’’6 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent Local 439’s authorized representa- tive, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 01099 Fmt 0610 Sfmt 0610 D:\NLRB\324.129 APPS10 PsN: APPS10 1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (e) Sign and return to the Regional Director sufficient cop- ies of the notice for posting by University of the Pacific, if willing, at all places where its notices to employees are cus- tomarily posted. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 01100 Fmt 0610 Sfmt 0610 D:\NLRB\324.129 APPS10 PsN: APPS10 Copy with citationCopy as parenthetical citation