Teamsters Local Union No. 515

National Labor Relations Board - Board Decisions

Dec 11, 1981

259 N.L.R.B. 678 (N.L.R.B. 1981)

678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Local Union No. 515 (Cavalier Corpora- APPENDIX
tion) and David E. Barber. Case 10-CB-3391
NOTICE To EMPLOYEES AND MEMBERS
December 11, 1981 POSTED BY ORDER OF THE
DECISION AND ORDER ,NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
On September 1, 1981, Administrative Law the National Labor Relations Board found that we
Judge Hutton S. Brandon issued the attached Deci- have violated the National Labor Relations Act, as
sion in this proceeding. Thereafter, Respondent amended, and has ordered us to post this notice.
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the The Act gives employees the following rights:
National Labor Relations Act, as amended, the Na- To engage in self-organization
tional Labor Relations Board has delegated its au- To form, join, or assist any union
thority in this proceeding to a three-member panel. To bargain collectively through repre-
The Board has considered the record and the at- sentatives of their own choice
tached Decision in light of the exceptions and brief To engage in activities together for the
and has decided to affirm the rulings, findings,' and purpose of collective bargaining or other
conclusions of the Administrative Law Judge and mutual aid or protection
to adopt his recommended Order, as modified To refrain from the exercise of any or all
herein. 2 such activities.
ORDER WE WILL NOT cause or attempt to cause
Cavalier Corporation to unlawfully discrimi-
Pursuant to Section 10(c) of the National Labor nate against David E. Barber by filing griev-
Relations Act, as amended, the National Labor Re- ances to change his job assignments or duties
lations Board adopts as its Order the recommended because of his lack of membership in Team-
Order of the Administrative Law Judge, as modi- sters Local Union No. 515.
fled below, and hereby orders that the Respondent, WE WILL NOT maintain or process any
Teamsters Local Union No. 515, Chattanooga, grievance with regard to the job assignments
Tennessee, its officers, agents, and representatives, and duties of David E. Barber which was filed
shall take the action set forth in the said recom- because he resigned his membership in the
mended Order, as so modified: Union.
1. Substitute the following for paragraph l(a): WE WILL NOT in any like or related manner
"(a) Causing or attempting to cause the Cavalier restrain or coerce employees of Cavalier Cor-
Corporation to unlawfully discriminate against poration in the exercise of the rights guaran-
David E. Barber by filing grievances to change his teed them in Section 7 of the Act.
job assignments or duties because of his lack of WE WILL notify Cavalier Corporation that
membership in the Union." we have no objection to its employment of
2. Substitute the attached notice for that of the David E. Barber in the same classification
Administrative Law Judge. with the same job duties he held prior to July
16, 1980.
'Respondent has excepted to certain credibility findings made by the WE WILL withdraw our grievance and proc-
Administrative Law Judge. It is the Board's established policy not to further rievances with reard to the
overrule an administrative law judge's resolutions with respect to credi-urer grievances regard
bility unless the clear Respondent has excepted to certain credibility find- job duties and assignments of David E. Barber
ings made by the Administrative Law Judge. It is the Board's established which were filed and maintained because he
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear prepondernace of all of the relevant resigned his membership in the Union.
evidence convinces us that the resolutions are incorrect. Standard Dry WE WILL make David E. Barber whole for
Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re- any loss of earnings he may have suffered as a
versing his findings. result of the unlawful discrimination against
' We shall modify par. I (a) of the Administrative Law Judge's recom- intrt
mended Order to conform more closely to the violation found. We shall h, ps it t
also substitute a new notice for that of the Administrative Law Judge,
containing language which conforms to par. 2(b) of the Administrative TEAMSTERS LOCAL UNION No. 515
Law Judge's recommended Order.
259 NLRB No. 94

I I NATIONAL
On September 1, 1981, Administrative Law ity t o rese t i a state t ir iti ,

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TEAMSTERS LOCAL UNION NO. 515 679
DECISION and the preceding initial I-year agreement executed in
January 1979, but effective from August 1978.
STATEMENT OF THE CASE For several years Barber, in addition to his regular in-
HUTTON S. BRANDON, Administrative Law Judge: spection duties, was called upon by the Company to per-
This case was heard at Chattanooga, Tennessee, on June form additional inspection and repair duties at its ware-
23, 1981. The charge was filed on August 25, 1980,1 by house. While the frequency of his assignment to the
David E. Barber, an individual, hereinafter called warehouse duties was not clearly established in the
Barber, and the complaint based on the charge was record, it is clear from Barber's testimony that as a result
issued on October 6, alleging that Teamsters Local of his assignment to warehouse duties he received an
Union No. 515, hereinafter called the Union or Respond- average of 6 to 10 additional hours of overtime pay per
ent, violated Section 8(bXIXA) and (2) of the National month. Time records compiled by the Company, subpen-
Labor Relations Act, as amended, hereinafter called the aed by Respondent, and received in evidence, covering
Act, by causing or attempting to cause Cavalier Corpo- an 18-month period beginning January , establish that
ration, Barber's employer, to change the job duties of Barber did receive more hours of work, including over-
Barber because he had resigned his membership in the time work, than some more senior fellow inspectors but
Union. The issue presented is whether the Union's action less than some others.
in the filing of a grievance involving Barber's job duties Barber did not initially join the Union when it became
and resolving that grievance to Barber's detriment was the collective-bargaining agent in 1978. He testified that
motivated by Barber's lack of membership in the Union in view of his reluctance to join the Union, he received
and in order to encourage membership in the Union. pressure from a number of people, including union stew-
Upon the entire record, including my observation of ards- In this regard, he testified that union stewards
the demeanor of the witnesses, and after due considera- Terry Powell and Terry Cole in September 1978 called
tion of the briefs filed by the General Counsel and Re- him a "freeloader" and a "scab" and related that if a
spondent, I make the following: picket line was set up in front of the plant and if he tried
to come across, he would be shot or his house would be
FINDINGS OF FACT burned.
In August 1979, according to Barber, Ed Guffey, the
I. JURISDICTION union representative responsible for servicing the collec-
tive-bargaining agreement with the Company, attempted
The Cavalier Corporation, herein called the Company, to persuade Barber to join the Union and in so doing
is a Tennessee corporation with an office and place of to p Barber th join the Union , he would
business in Chattanooga, Tennessee, where it is engaged not remain at work at the ompany. In the same conver-
in the manufacture of bottle and can vending coolers. ation, arer tetiie, aggressively inquired of
During the calendar year preceding issuance of the com- Barber testified, G statement Barber had made to em-
plaint herein, the Company sold and shipped from its ployee Douglas McRoy to the effect that if Guffey ever
Chattanooga plant goods valued in excess of $50,000 di- tried to stop Barber from crossing a picket line Guffey
rectly to customers located outside the State of Tennes- would look "funny" with a Chevrolet bumper stuck in
see. The complaint alleges, the Union by its answer h posterior. While Barber did not deny having made
thereto admits, and I find and conclude that the Compa- the comment he explained to Guffey that he had just
ny is an employer engaged in commerce within the been shooting a "bunch of bull."
meaning of Section 2(6) and (7) of the Act. been shooting a "bunch of bull."Barber testified that he and his wife, who was also an
II. THE LABOR ORGANIZATION INVOLVED employee of the Company, joined the Union in Septem-
ber 1979. Thereafter, Barber had his union dues checked
The complaint alleges, the Union admits, and I find off by the Company.3 Barber subsequently decided that
that the Union is a labor organization within the meaning he did not want to remain a union member and called
of Section 2(5) of the Act. The complaint further alleges Guffey in May to ascertain how he could go about get-
and the Union admits that the Union and the Company ting out. Barber testified he was unable to get any infor-
have been at the times material parties to a collective- mation from Guffey so he contacted an attorney. On
bargaining agreement which was effective from Septem- May 14 he went to the union hall and filed a withdrawal.
ber 1, 1979, to August 31, 1980. He was later told by employee Doug McRoy, who at
this time was an alternate union steward, that the with-
II11 THE ALLEGED UNFAIR LABOR PRACTICE drawal was a waste of time and that Barber was still in
Barber, the General Counsel's only witness, was em- the Union. On June 24 and July 2 Barber sent the Union
ployed by the Company more than 11 years prior to the
hearing herein. He worked as an inspector in a depart- 'Resp. Exh. 3.hearing herein. He worked as an inspector in a depart- The Union's records reflect thai the first dues deduction for Barber
ment usually containing in excess of 30 other inspectors, was on October 12, 1979. Resp. Exh. 3.
all of whom were included in the appropriate collective- 'The validity of the withdrawal is not clear from the record for while
bargaining unit represented by the Union and covered by Guffey testified that Barber's withdrawal was effective from May 14 and
the collective-ba g ae referred to ave no further dues were deducted. Guffey also testified that withdrawals
the collective-bargaining ag eement referred to above were only applicable to situations where employees were on leaves of ab-
sence from employment or were terminated. Barber did not fit in either
'All dates are in 1980 unless otherwise stated. Continued
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The avalier Corporation, herein office and place of to persuade Barber to join the Union and in so doing
is a ennessee corporation ith an office and place of told Barber that if he did not join the Union, he would
business in Chattanoogaf Tennessee, where it is engaged not remain at work at the Company. In the same conver-
in the anufacture of bottle and can vending coolers. sation, Barber testified, Guffey aggressively inquired of
ri the calendar year preceding issuance of the cor - Barber about a prior statement Barber had made to em-
plamt herein, the Co pany sold and shipped from its ployee Douglas McRoy to the effect that if Guffey ever
hattanooga custmerslocaed otsid theStat of Tennes- tried to stop Barber from crossing a picket line, Guffey
r ctlyt custo ers located outside the StateUno b t ase would look "funny" with a Chevrolet bumper stuck in
see. The co plaint alleges, the Union by its answer his posterior. While Barber did not deny having made
t r t d n employerengand conclude that the Compa- the comment, he explained to Guffey that he had just
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680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letters resigning from the Union and revoking his dues- Doug McRoy told him that if he would be interested in
checkoff authorization. 5 getting back in the Union they would see what they
Barber went on vacation in late June and returned to could do about getting his job back at the warehouse for
work on July 15.6 On that day Georgeanne Finch, the him. Still later, toward the end of August, according to
union steward for Barber's department, asked him who Barber, union steward J. D. Newsome told Barber that
he was going to "roll" and added that he was not going Barber might not be paying union dues of $14 or $15
to do warehouse work anymore. Later that same week, dollars, but "we're getting the amount anyway by knock-
Barber testified, he was told by the warehouse union ste- ing you out of going to the warehouse."
ward, Dorothy Harris, that she had heard that someone The Union's position is that the grievance filed which
else was coming to the warehouse in his place. Still later resulted in Barber's removal from warehouse work had
in the week, according to Barber, Barber asked his fore- nothing to do with his resignation from the Union, and,
man, Chuck Lindsey, about the matter and Lindsey told instead, was based upon a meritorious claim by various
him that a grievance had been filed regarding Barber's employees that the warehouse work should be awarded
warehouse work. in accordance with the contract. More specifically, the
It is undisputed that on July 16 Finch filed a griev- Union argued that the warehouse job should have been
ance 7 contending that the transfer of Barber on that date made a full-time position and, absent making it a full-time
to work in the warehouse necessitating the reassignment position, the Company was violating the temporary
of someone else to Barber's regular work was a violation transfer provision' of the collective-bargaining contract
of the temporary transfer provision of article 16 of the by transferring an inspector into the position sporadically
collective-bargaining contract. As a remedy, the Union while replacing that inspector on his regular job with an-
sought to have the senior inspector paid for the time that other inspector
Barber worked at the warehouse. The grievance was re-
solved on August 5 with the Company agreeing to offer To disprove the General Counsel's contentions regard-
the warehouse work on a regular basis to the senior in- ing animus towards Barber because of his lack of union
spector who wanted it. Phyllis Jones, an inspector senior membership, the Union presented a number of witnesses.
to Barber, thereafter was given the warehouse work until Terry Cole and Terry Powell both denied making any
October when the Company, in a settlement of charges threats to Barber to cause him to join the Union. More-
filed against it by Barber with the Board in Case 10-CA- over, according to the testimony of Guffey, neither Cole
16184, returned the warehouse work to Barber. Barber nor Powell was a union steward at the time in 1978
was still performing the warehouse work at the time of when Barber's testimony has it that they threatened him.
the hearing. Although Guffey admitted that he had talked to Barber
The General Counsel contends that the Union filed the in 1979 about joining the Union and had also discussed
grievance which adversely affected Barber's conditions with Barber the threat concerning the Chevrolet bumper,
of employment simply because Barber had resigned from he denied that he had ever told Barber that he would
the Union, and in so doing had violated Section have to join the Union to work at the Company.
8(b)(IXA) and (2) of the Act. In support of this conten- With respect to the filing of the grievance, McRoy tes-
tion the General Counsel relies upon the evidence of tified for the Union that on a Friday while he was acting
pressure put upon Barber to join the Union as outlined as steward in place of Georgeanne Finch who was on
above, the timing of the filing of the grievance shortly vacation in early July that a number of employees in-
after Barber had resigned from the Union and the fact cluding inspectors Phyllis Jones, Calvin Dallas, and Gay
that after his resignation from the General Counsel also Kegan complained to him about Barber's work at the
relies on other testimony of Barber regarding comments warehouse and expressed concern why they could not
made to him by union stewards following the filing of go over and do the job too.' McRoy testified he related
the grievance. Thus, Barber testified that after he had the complaint to Finch when she returned to work on
been removed from warehouse work alternate steward the following Monday, July 14, and suggested she file a
grievance on it. McRoy admitted that he was aware at
category. Persons who had submitted withdrawal cards remained mem- the time the complaints were made to him about the
bers of the Union but were relieved from any dues obligations. The fact warehouse job that Barber had said that he was going to
that the Union honored the "withdrawal" may well have been a result of get out of the Union, but denied that Barber's getting out
an administrative snafu in view of the terms of Barber's checkoff authori-
zation. I therefore do not view Barber's early release from his checkoff
obligation as evidence of either the Union's generosity or good will 'The provision referred to G.C. Exh. 2, art. 16, in pertinent part, as
toward Barber. This view is further substantiated by Barber's uncontra- follows:
dieted testimony that McRoy told him the withdrawal was a waste of 1. In the event it is necessary to temporarily transfer an employee
time and he was still in the Union. within a department due to vacancies resulting from absenteeism, tar-
' The applicable contractual provision on checkoff made checkoff au- diness, leave of absence, etc., the department supervisor will deter-
thorizations irrevocable for I year or until the contract expired, which- mine which job or jobs can be discontinued or reduced in order to
ever occurred sooner. G.C. Exh. 2. Barber explained that he sent two transfer the employees to fill the vacancies. Such employees will be
resignation and checkoff revocation letters to the Union because of some removed in the reverse order of seniority and returned in the order
question of timeliness of the first letter. Apparently, the Union never of seniority. If more than one employee is to be transferred such em-
made any contention that Barber's resignation and revocation was in any ployees will be given the opportunity to fill the available vacancies
way untimely. by seniority provided they can perform the job.
I While Barber testified he returned to work from vacation on ' The Company's time records listing the inspectors in the order of
Monday, July 21, the company time records reflect, and I find, he re- their employee or clock numbers, and thus in seniority order, reveal
turned on Tuesday, July 15. Resp. Exh. 3. Jones and Kegan were above Barber in seniority while Dallas was below
O.C. Exh. 3; Resp. Exh. 6. him.

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TEAMSTERS LOCAL UNION NO. 515 681
of the Union had anything to do with his suggestion to A determination of the Union's motivation in the in-
Finch that a grievance be filed. Further, McRoy denied stant case must be based on facts established by the
making the statement attributed to him by Barber to the record, and such facts turn on which witnesses are to be
effect that if Barber got back in the Union, they would believed. I found Barber to be a generally straightfor-
see about getting his warehouse job back. ward, candid, and generally accurate witness. However,
Finch testified that 2 months prior to the time the his identification of Cole and Powell as being among
grievance was filed regarding warehouse work she had those who tormented him in early 1979 regarding his
met with Bob Niswonger, the Company's vice president lack of union membership is suspect because, contrary to
on a number of matters and the subject of the warehouse his specific recollection at the hearing, his prehearing
work came up. At that time, according to Finch, she statement to the Board expresses some doubt as to the
argued that the warehouse job should be a permanent identity of those "union officials" who were harassing
job and that it was violating the temporary transfer him. Nevertheless, he had named, with some uncertainty,
clause of the contract. Discussion on the subject was i- Cole and Powell in his prehearing statement, and I am
conclusive and the matter was passed with Finch re- persuaded that his testimony, which was much more
marking that they would leave the situation like it was positive was the product of genuine recollection rather
unless somebody complained. Finch testified that after th prevarication or contrived reconstruction. More-
she returned from vacation she got complaints from a reva unpersuaded b the denias of both Cole and
McRoy Phyllis Jones, and Clara Moran, who was not over, I was unpersuaded by the denials of both Cole andMcRoy, Phyllis Jones, and Clara oran, who was not Powell that they uttered the threats attributed to them
an inspector, regarding the unfairness of Barber's ware- o w e ha t t te e r t t h e
house work, and after unsuccessfully attempting to re- by Barber. It is not at all unreasonable that they would
solve the matter with Personnel Manager Brad Hillman urge Barber into union membership, nor is it unlikely
and Foreman Lindsay went ahead with the written that they might have referred to hm as a "scab" or a
grievance. Finch conceded that she knew that Barber "freeloader." Powell's denials that he ever had discus-
had gotten out of the Union but testified she pursued the sions with Barber about joining the Union were particu-
grievance because "the people was on my back." larly hollow and unconvincing. And Cole's concession
Finally, J. D. Newsome testified for the Union and ad- that he did talk to Barber about union membership lends
mitted that he was a job steward for the Union during no credence to his denial of any threats to Barber in
the period from July 1980 to March 15, 1981, but serv- view of his equivocal "not to my knowledge" response
iced a department other than Barber's. He denied that he to the question of whether he had referred to Barber as a
had ever discussed with Barber his removal from the "scab."
warehouse work. In addition, he denied that he had ever Considering the foregoing and crediting Barber's testi-
told Barber that while the Union was not getting union mony, I conclude that threats were made to Barber by
dues from Barber they were getting more than that by Powell and Cole. The threats and comments of Powell
keeping him out of the warehouse job. and Cole clearly reveal that animosity towards Barber
among the employee union members existed because of
Discussion and Conclusions his lack of union membership. '
A conclusion as to the Union's motivation in filing the It is not disputed that Guffey attempted to persuade
grievance which adversely affected Barber is necessary Barber to join the Union in 1979. It is also not disputed
to a determination of the existence of the violation of the that Guffey confronted Barber about Barber's threat re-
Act alleged by the General Counsel. If the Union's mo- garding the automobile bumper. It is clear that there was
tives were pure in the sense that the filing of the griev- no love lost between the two men. However, I am
ance was solely to enforce applicable provisions of the unable to credit Barber's claim over Guffey's clear and
collective-bargaining agreement, then no violation has specific denial that Guffey told Barber if he did not join
been established. It is well settled that the Board accom- the Union, he would not be working for the Company.
modates its enforcement of the Act to the right of per- Barber failed to include in his prehearing statement to
sons to litigate their disputed claims in court rather than the Board any reference to the alleged threat by Guffey,
to condemn such action as an unfair labor practice. See although he did refer to the confrontation with Guffey.
Clyde Taylor, d/b/a Clyde Taylor Company, 127 NLRB There was no indication that Guffey's alleged threat was
103 (1960). It goes without saying that a similar accom- revealed by Barber to the Board prior to the hearing.
modation extends to the no lesser right of a union to en- Under these circumstances, and because Guffey's denial
force collective-bargaining agreements even though cer- that he made such a remark was emphatic and convinc-
tain employees may be adversely affected by such action. ing, and although Guffey may well have used persuasive
However, the Board has held that where a union's proc- arguments to insure Barber's joining the Union, I am not
essing of a grievance adversely affecting an employee or convinced that Barber's recollection of the alleged
employees is prompted by an unlawful and discriminato- remark was reliable, and I credit Guffey over Barber in
ry objective rather than by a genuine concern over the this instance.
merit of the grievance or the integrity of the collective-
bargaining agreement, its conduct falls within the pro- "I find it unnecessary to decide whether Cole and Powell were union
scriptions of Section 8(bX)XA) and (2) of the Act. stewards and agents of Respondent at the time of the threats made to
United Food and Commercial Workers International Barber. It is sufficient that I conclude that animosity between them and
Barber existed as a result of his lack of union membership, and such ani-
Union, District 227, AFL-CIO (The Kroger Co.), 247 mosity would not likely be diminished at any subsequent time when they
NLRB 195 (1980). became stewards while Barber was not a union member.
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682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barber also failed to include in his prehearing state- and processing of the grievance affecting Barber. On the
ment to the Board the remark he attributed to Newsome testimony of McRoy and Finch, Respondent would have
to the effect that while Barber was not paying dues, the me believe that the grievance on Barber's warehouse
Union was getting even by knocking him out of going to work was employee initiated and not instigated by the
the warehouse work. Nevertheless, Barber did subse- Union. Although Finch and McRoy support each other
quently prior to the hearing relate the matter to the in certain respects, there was no employee corroboration
Board attorney. Newsome, whose stewardship did not on the point of the initiation of the grievance. Such em-
extend to Barber's work area, denied in his brief testimo- ployee corroboration would appear to be an important
ny that he had even talked to Barber about Barber's re- part of the Union's defense, and the failure to produce
moval from the warehouse work. I am not convinced the named employee complainants suggests the absence
that Newsome's remark was the figment of Barber's of any such complainants. See Local 138, International
imagination. Accordingly, and because on balance I Union of Operating Engineers, AFL-CIO (Building Con-
found Barber a more believable witness than Newsome, I tractors' Association, Inc.), 233 NLRB 267 (1977). Such
credit Barber on the matter. employee complainants would apparently be available to
I likewise credit Barber's testimony that alternate the Union since they were, according to McRoy, union
union steward McRoy told him that if Barber was inter- members and supportive of the Union's position with re-
ested in getting back in the Union, the Union would see spect to Barber. Moreover, it is undisputed that the
what it could do to get his warehouse assignment back grievance was not filed by an employee, but by Finch,
for him. McRoy generally was not impressive as a wit- the steward acting within the scope of her authority and,
ness. Moreover, contrary to previous assertions made to I find, like Newsome and McRoy, an agent of the Union.
Board investigators, McRoy conceded in his testimony I have already indicated my disbelief of McRoy. His
he had at least once solicited Barber to join the Union. testimony is rendered further incredible by records re-
His testimony with respect to prior complaints by other ceived in evidence as accurate company records of hours
employees about Barber's warehouse work and resolu- worked by the inspectors during the relevant period. 12
tion of such complaints was confusing, contradictory, McRoy testified that inspectors Calvin Dallas, Gaye
and unsubstantiated. Accordingly, and for other reasons Kegan, and Phyllis Jones complained to him on Friday
cited below for not believing McRoy, I find that McRoy (July 11) about Barber's warehouse work while Finch
did make the statement attributed to him by Barber. was still on vacation, and he did not report the matter to
It is clear that Newsome was a steward and McRoy Finch until her return on July 15. The company time re-
was an alternate steward during that period of time im- cords show, however, that the inspectors were all on va-
mediately surrounding the events on which the charge cation through July 14. It is thus incredible that Dallas,
herein is based. Indeed, McRoy was the acting steward Kegan, and Jones came to McRoy during their vacation
during the absence of Finch when the employee com- time to complain about Barber who was also on vacation
plaints regarding Barber's warehouse work were alleged- at the time
ly made. And, while Newsome was not the steward in h e e e th ee
Barber's area, he was acting within the scope of his stew- nch w as t e c onten o er t estimony perssive an
ardship authority in commenting upon the basis for the d not im s m cot en etelimony persuasive. Finc
filing of a grievance, and any listening employee could t o t m as co etel fnk Moro ,
reasonably believe that he was an authoritative source of t e s imony was not consistent with McRoys. Thus, in
information relative to grievance initiation and process- ntradiction of McRoy's contention that the inspectors
ing. The comments of Newsome and McRoy were di- had always complained about Barber's overtime at the
rectly related to the processing of the grievance which warehouse, Finch's testimony was that she had not heard
had been filed and which adversely affected Barber. of any complaints until July 14 even though she had
Under the applicable collective-bargaining agreement, been the steward m Barber's department for 2 years.
stewards had the authority to investigate and present Moreover, Fincs testimony was contradicted by other
grievances to management. They further were authorized asets of McRo's testimony. McRoy contended that
conduits of union messages." Thus, I conclude that in the issue of Barbers warehouse assignment had been in
making the statements to Barber, Newsome and McRoy issue much earlier, but was resolved by then steward
were acting within the scope of their authority and I Powell working out an agreement that the job would be
conclude that their comments are imputable to Respond assigned on a rotating or seniority basis. Finch testified,
conclude thatthe. c s however, that without any prior complaints sheent, and Respondent is responsible therefor. See Interna- hoee that wthout a ror c s
tional Brotherhood of Teamsters, Dallas General Drivers, broached the subject of Barbers warehouse work to Bob
Warehousemen and Helpers Local 745 (Transcon Lines) Niswonger, the vice president of manufacturing, during a
240 NLRB 537 (1979); International Brotherhood of discussion with Niswonger on other problems about 2
Teamsters, General Drivers, Chauffeurs and Helpers Local months prior to filing the grievance regarding Barber.
Union No. 886 (Lee way Motor Freight, Inc), 229 NLRB However, in that discussion Finch said she was merely
832 (1977), enfd. without opinion, Docket No. 77-1629 complaining that the warehouse job should be made a
(D.C. Cir. 1978). permanent position and that Barber's use violated the
The statements of Newsome and McRoy to Barber
clearly revealed an ulterior motivation in the initiation 1 iResp. Exh. 3.
clearly revealed an ulterior motivation in the initiation 3 Finch's tendency to exaggerate is shown by her testimony, clearly
rebutted by the company time records, that Barber's warehouse work
" See G.C. Exh. 2, art. 5. gave him overtime every day.
.
c
.
).
, t i .

t ti
'
ti l i t ,
.
it l t li i , l I
t i ti l
lt r t t r i t t i ti i ll
i t l i l t i
r i i . I , t ti t r , t i i ti
ri t f i t l ti e l i t l ti
r i r r' r s ork were alleged- at the time.
l . , il t t t i F w no mr c i M i
arber's area, he as cti it i t sc f is t - nor asth e cto l tei n er suasiv . Fi ch
r i t rit i ti t sis f r t no o w a s t h e c o n t en t o f h r teslimon rs sive. i h
fili f a grievance, and any list i e ployee l d d n o tttimo p e as c mpl t ly frank.wt ore ver, her
r bl li t t t rit ti f corsii ow a s t i t t i . . i
infor ation relative t grievance i iti ti and process- hcontradiction f cRoyp s contention t t the inspectors
ing. The comments of Newsome and McRoy were di- always complained about Barber's overtime at the
rectly related to the processing of the grievance which ofrehouse, Finchts testimony was that she had not heard
fil i r l ff t r r. bo f l i t til l t
nder the applicable collective-bargaining agree ent, be en t h e st e w ar dFc B ar be r s depart ent f r 2 years.
t r t t rit t i ti t r t aMoreover inchos t ti tr i t y t r
ri t nt. f rt r r t ri thpe su o f M c R ber s t ti . t t t
it f i ." , I l t t i th ei ss u e o f B a r be r sburehou i t i
i l ss u e rli l
ti f t ir t rit and I
o w ell orking out an agreement that the job would be
l i - i i r ni rit i . i t stifi ,
conlud tat hei cmmets reimptabe o Rspod- , i l i t
ent, and espondent is responsible t r f r. ee I t rna- weaer, the subject any preor worknto Bob
i l rotherho d llas l ivers, Nsoached j t
arehouse en and Helpers Local 745 (Transcon Lines), dNiswonger, the vice president of manufacturing, during a
( ); I t r ational r therhood f d ns c u s s prn wo t h i t l t
ea sters r l rivers, ffe rs l ers l m o n t h s H e oe thatdicuoh e ri r r i r r.
i . ( ay t r reight, Inc.), 229 L co ever, in that discussion Finch said she was merely
( ), f . it t i i , t . - l i i t t t r j l
. )permanent i i t t '
t t t t -R---- 3
clearly revealed an ulterior motivation in the initiation 13c~ cfxi. 3. ' , .* 11 . ,clearly i initiati '" i 's tendency to exaggerate is sho n by her testi ony, clearly
i
mo
tp a
i i it
TEAMSTERS LOCAL UNION NO. 515 683
temporary transfer clause. Since the discussion was in- was not employee initiated and, on the contrary, was ini-
conclusive, Finch testified she was content to leave the tiated by McRoy and Finch as union representatives."
matter as it was if there were no complaints, with the in- Finally, contrary to the Union's contention, the merit
tention of subsequently negotiating the warehouse posi- of the grievance on Barber's job is not so clearly merito-
tion into the next contract. rious insofar as it relates to the temporary transfer clause
I find Finch's unsupported testimony regarding the as to preclude the existence of discriminatory motivation
discussions with Niswonger incredible and improbable." on the Union's part in the filing and processing of the
First, in the absence of a complaint, it is unlikely the sub- grievance. Of course, it is not necessary for the Union's
ject would have been broached with Niswonger. Sec- defense that its interpretation of the temporary transfer
ondly, if Finch had considered Barber's warehouse work clause be correct. It is only necessary that the Union not
to constitute a clear and serious breach of the temporary act unreasonably, arbitrarily, unfairly, or without legiti-
transfer clause as the Union now claims, it is much more mate purpose in taking its position on the contractual
likely that she would have insisted on a remedy at that clause. Wanzer Dairy Co, 154 NLRB 782, 793 (1965).
point and, in the absence of immediate remedial action, The unreasonableness of the Union's interpretation of the
would have filed a grievance. provision would, however, tend to reflect ulterior and
The timing of the filing of the grievance regarding discriminatory motivation. Here, Barber had been doing
Barber's job also strongly indicates, as urged by the Gen- the warehouse work for several years prior to the advent
eral Counsel, that such action was discriminatorily moti- of the Union and the Union contract. He had continued
vated. Barber had been doing the work for a number of to do it for three years following the advent of the
years without prior complaint from fellow inspectors. Union and under the Union contracts. In view of this
Indeed, it appears that the other inspectors were not history, his customary and frequent assignment to the
qualified for the work since Jones, who replaced Barber warehouse is more consistent with the existence of a per-
in the warehouse work as a result of the Union's griev- manent job category rather than a series of temporary
ance, had to receive special training. Furthermore, the transfers. Moreover, putting the job up for bid did not,
filing of the grievance followed within 1 week after the insofar as this record shows, resolve the temporary trans-
Union admittedly received Barber's letter revoking his fer contention of the Union. Thus, Finch had argued that
membership and checkoff authorization on July 715 when Barber's warehouse work had violated the temporary
complaints allegedly began to be made about Barber's transfer clause since the Company did not leave Barber's
warehouse assignment. And, although the complaints regular position vacant at the times when he went to the
were claimed to be predicated on Barber's opportunity warehouse and instead filled that position with another
to make substantial overtime through his warehouse inspector. Yet, the record does not show any change in
work, the company time records reflect that Barber had this procedure simply because someone more senior than
worked only 6-1/2 hours of overtime between May I Barber, in this case union member Jones, bid on and was
and the date the grievance was filed. 6 This compares subsequently assigned Barber's work. Presumably, some-
with 11-1/2 hours in April, 14 in March, none in Febru- one else would have had to take Jones' regular work
ary, and 2 in January. Thus, and assuming that all of when she performed warehouse work. The record, there-
Barber's overtime could be attributable to his warehouse fore, shows no change which would appear to resolve
assignment, it is clear there was no significant increase in the Union's complaint under the temporary transfer
his overtime work around the time of the filing of the clause. Accordingly, I conclude the Union's reliance on
grievance which would serve to attract attention and the temporary transfer clause is not so reasonable as to
provoke discontent among his fellow inspectors who had escape the conclusion of the Union's unlawful motivation
tolerated Barber's assignment for so long before. In in processing the grievance that the record otherwise
short, aside from Barber's withdrawal from the Union, dictates. On the contrary, the failure to resolve the un-
which was admittedly known to Finch when the griev- derlying concern relative to the temporary transfer
ance was filed because "he told everybody," nothing had clause while at the same time removing Barber indicates
happened to trigger the employee complaints on which the Union's unlawful motivation.
the grievance was based. Under these circumstances and Considering all the foregoing, and having credited the
considering the statements of McRoy and Newsome to testimony of Barber over that of McRoy and Newsome
Barber, and discrediting Finch's and McRoy's testimony I conclude that the General Counsel has established a
to the contrary, I conclude that the grievance on Barber prima facie case of a violation of Section 8(bXXA) and
(2) of the Act by the Union in its filing of the grievance" Finch's testimony regarding the conversations with Niswonger was adversely affecting Barber. See Wright Line, a Division of
not contradicted. However, a trier of fact is not required to accept un-
contradicted testimony as true if it contains improbabilities or there are Wright Line, Inc., 251 NLRB 1083 (1980). The General
reasonable grounds for otherwise concluding that it is false. Operative Counsel contends that the Union's action herein with re-
Plasterers' Cement Masons' International Association Local 394 (Burnham spect to Barber was not predicated on mixed motives in
Brothers Inc.), 207 NLRB 147 (1973). Moreover, as I have already relal-
ed, on demeanor I did not find her altogether credible.
"' The Union did not acknowledge receipt of Barber's first letter dated " I am cognizant of the fact that subsequent to having been awarded
June 24. Barber's warehouse work and then removed from it as a result of a
" The records do not show whether Barber's overtime actually result- Board settlement with the Company, Jones filed a grievance and a charge
ed from his warehouse assignments, but it is reasonable to infer from Bar- with the Board against the Company. However, Jones' interest in the job
ber's own admissions that he averaged 6 to 10 hours a month overtime at shown after training for the position and occupying it does not establish
the warehouse and that such overtime was attributable to his warehouse the initial interest in it sufficient to initiate a grievance particularly where
work. no previous interest was shown by Jones in the position for several years.
,
l ."

, ).
i r i i t r
l , r l
l l ti ri i t ril t

l i t .
t r i t
li i t
l r
i ci l i
i l l
i l i ' ti
i ckoff t ri ti l '
i l l ' f
i l i
rt it ll i
t nti l t r.
i l i
l 1
a nd t h e t h e l 1 quentl i bl
i '
r i ll
l l o i l r t l
i t i i l i
i i i l i l , l i ' li
ri r ti f l
t t l i l f l
' i i r
i ' t l tate r , f il l
i l i t f
l r y,"
i t l l i t on hich the nion's unlawful motivation.
ll i i
i ri ,
, i iti i ' ti r l l t l
t t I l t t t i i f i l i ti )l
------c's testmony rgardingthe coversatins wit Niswoner was (2) of the ct by the nion in its fili f t ri
Fno;'s etioy cudn t:covrst.n it isoge w r s e1/ t m ^g Barber. See Wnsght Line. a Diviion of avreyafcigBre.SeWih ie iiino
).

l t '& m O
thers

I

'

'

t
d at e
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any respect so that Wright Line, supra, is inapplicable. 1980. 1 Furthermore, it shall be recommended that the
The Union, on the other hand, argued that even if the Union be ordered to withdraw its grievance regarding
General Counsel established a prima facie case of a viola- Barber's job assignment and duties as they existed prior
tion and that there was some unlawful motivation in its to the filing of the grievance. It shall also be ordered
actions, the case is one of dual motivation and Wright that the Union notify Cavalier Corporation that it has no
Line, supra, requires further inquiry into whether the objection to the employment of Barber in the same posi-
Union would have taken the same action against Barber tion with the same assignments that he occupied prior to
notwithstanding the existence of discriminatory concerns. the filing of the July 16, 1980, grievance. Finally, I shall
I have found the Union's actions here were pretextual, recommend that Respondent make Barber whole for any
but, assuming that a dual motivation situation existed, loss of earnings suffered by him by reason of the discrim-
i.e., discrimination and a legitimate concern over enforc- ination against him. The backpay obligation shall be
ing a contract clause, I am persuaded that the Union computed in the manner set forth in F. W Woolworth
failed to demonstrate that it would have taken the same Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
action against Barber even in the absence of Barber's res- ration, 231 NLRB 651 (1977)."1
ignation from the Union. Since I discredit that testimony Upon the foregoing findings of fact, conclusions of
of McRoy and Finch that the grievance was employee- law, and upon the entire record, and pursuant to Section
instigated, and because the Union knew of the alleged 10(c) of the Act, I hereby issue the following recom-
contract violation for years but failed to grieve the mended:
matter until immediately after Barber, to the admitted2
knowledge of Finch and McRoy, had resigned from theORDER
Union, I conclude that the grievance would not have The Respondent, Teamsters Local Union No. 515,
been filed had Barber not resigned. Accordingly, I con- Chattanooga, Tennessee, its officers, agents, and repre-
clude that the Union failed to rebut the General Coun- sentatives, shall:
sel's prima facie case of a violation of Section 8(bX1)(A) 1. Cease and desist from:
and (2). (a) Causing or attempting to cause the Cavalier Corpo-
ration to change the job duties or assignments of employ-
CONCLUSIONS OF LAW ee David E. Barber because of his lack of membership in
1. Cavalier Corporation is an employer engaged in the Union.
commerce within the meaning of Section 2(6) and (7) of (b) Maintaining or processing grievanances with
the Act. regard to the job duties or assignments of employee
2. The Union, Teamsters Local Union No. 515, is a David E. Barber which were filed and maintained be-
labor organization within the meaning of Section 2(5) of cause he resigned from membership in the Union.
the Act. (c) In any like or related manner restraining or coerc-
3. By attempting to cause, and causing, Cavalier Cor- ing employees of Cavalier Corporation in the exercise of
poration to change the job duties of its employee David their Section 7 rights.
E. Barber because of Barber's lack of membership in the 2. Take the following affirmative action necessary to
Union, the Union has engaged in, and is engaging in, effectuate the purposes of the Act:
unfair labor practices within the meaning of Section (a) Notify Cavalier Corporation, in writing, that it has
8(bX2) and 8(bXl)(A) of the Act. no objection to the utilization of David E. Barber in the
4. The aforesaid unfair labor practices affect commerce same position with the same job duties that he possessed
within the meaning of Section 2(6) and (7) of the Act. prior to July 16 1980-
(b) Withdraw its grievance and process no further
THE REMEDY grievances with regard to the job assignment and duties
of David E. Barber which were filed and maintained be-
Having found that the Union has engaged in certain cause he resigned his membership in Respondent.
unfair labor practices, I shall recommend that the Union (c) Make whole David E. Barber for any loss of earn-
be ordered to cease and desist therefrom and take affirm- ings he may have suffered as a result of the unlawful dis-
ative action designed to effectuate the purposes of the
Act. " This order shall be construed as being applicable to the processing of
Since I have found that the Union attempted to cause, any presently existing grievance relative to Barber's job assignments and
and caused, Cavalier Corporation to change the job duties as they existed prior to July 16, 1980, including the grievance filed
by Jones on October 20, 1980. (Raesp. Exh. 8.) Jones' grievance resulted
duties of David Barber because of Barber's lack of mem- from the Union's initial grievance on Barber's job assignments and was
bership in the Union and to this end filed a grievance clearly tainted by it. This order shall not be construed, however, as pro-
discriminatorily seeking to adversely affect the job as- hibiting the filing of any subsequent grievances on Barber's job assign-
signment ~~~~~ of Barerbeaue o hs ment which are not discriminatorily initiated or instigated by the Union.signment of Barber because of his lack of membership in d' See, generally, Isis Plumbing Heating Co.a, 138 NLRB 716 (1962).
the Union, I find that in order to dissipate the effects of o in the event no exceptions are filed as provided by Sec. 102.46 of
the Union's unfair labor practices, it will be necessary to the Rules and Regulations of the National Labor Relations Board, the
order the Union to cease and desist from processing any findings, conclusions, and recommended Order herein shall, as provided
re he Uin to es by Sec. 102.48 of the Rules and Regulations, be adopted by the Board
grievance initiated or instigated by it seeking Barber's and become its findings, conclusions, and Order, and all objections there-
reassignment from the position he held prior to July 16, to shall be deemed waived for all purposes.
1

ra t io n, 1"
an d
i t ll i r -
tt fORER2
. ,
l
an d li
. i l i i
b
ca u se h e i t i .
c n
th e r i t .
T ake
a
( ) (b" l)( ) t t.
sam e P iti it t s j ti s t t e possessed
to l 16, 19 80 .
i t t t i i t i i i i i t.
f ir l ti , I ll t t t i l i
t l l i
t r f t
is r r s ll str s ei a lica le t t r cessi of
, li as e ste to 16 , 1980, n lu i fil
dutiesof Daid Baber bcause f Barer's ack o mem- by Jones on October 20, 1990. (Resp. Exh. 8.) Jones' grievance resultedti i ' l - fr t i 's i iti l rie a ce ar er's j ssi ts as
. t t , ,
S
sign ent f arber because f i l f r i i ^ K ^m which are not di criminatorily initiated or instigated by the Union.signmet of arberbecaue of s lac of ersi in " See, generally, Isis Plumbing & eating Co., 138 NLRB 716 (1962).
i t t f W i the event no exceptions are filed as provided by Sec. 102.46 of
Or
grieanceiniiate or nstgate by t sekin Barer' by Sec. 102.48 of the Rules and Regulations, be adopted by the Board i 's it fi i , l i , rder, ll j ti s t r -
ll .
r's by Sec. 102.48 of the Rules and Regulations, be adopted by the Boardgrievassignceintfrom thepitiated heheldpor instioated J y 1 o s iand become its findings, conclusions, and Order, and all objections there-
i t t iti , t ll i
' f - -from '
TEAMSTERS LOCAL UNION NO. 515 685
crimination against him in the manner set forth in the conspicuous places, including all places where notices to
section above entitled "The Remedy." members are customarily posted. Reasonable steps shall
(d) Post at its business office, meeting halls, or other be taken by Respondent to insure that said notices are
places where it customarily posts notices copies of the not altered, defaced, or covered by any other material.
attached notice marked "Appendix." 2 ' Copies of said (e) Furnish the Regional Director for Region 10
notice, on forms provided by the Regional Director for signed copies of said notice for posting by Cavalier Cor-
Region 10, after being duly signed by Respondent's au- poration, if willing, in places where notices to its em-
thorized representative of Respondent, shall, be posted ployees are customarily posted. Copies of said notice, to
by Respondent immediately upon receipt thereof and be be furnished by the Regional Director, shall, after being
maintained by it for 60 consecutive days thereafter, in signed by an official representative of Respondent, be
forthwith returned to the Regional Director for disposi-
" In the event that this Order is enforced by a Judgment of a United tion by him.
States Court of Appeals, the words in the notice reading "Posted by (f) Notify the Regional Director for Region 10, in
Order of the National Labor Relations Board" shall read "Posted Pursu- writing, within 20 days from the date of this Order, what
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board." steps Respondent has taken to comply herewith.
"

t it

r r f t e ati al a r elations oard" shall read "Posted Pursu- riting, ithin 20 days fro the date of this rder, what
l i
l l t l r it .