Building Material & Dump Truck Drivers, Local 420

National Labor Relations Board - Board Decisions

Sep 15, 1981

257 N.L.R.B. 1306 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Building Material & Dump Truck Drivers, Local
Union No. 420, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America and Leonard Worthington. Case
21-CA-16771
September 15, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 30, 1980, Administrative Law
Judge Maurice M. Miller issued the attached Deci-
sion in this proceeding. Thereafter, the Respondent
filed exceptions and a supporting brief, and the
General Counsel filed limited cross-exceptions to,
and a limited brief in support of, the Decision of
Administrative Law Judge Miller.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,t and conclusions2 of the Administrative Law
'The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 On August 27. 1980, the Board issued its decision in Wright Line. a
Division of Wright Line, Inc., 251 NLRB 1083 (1980), which sets forth a
two-step mode of analysis for examining causation in cases alleging dis-
criminatory discharge and violations of Sec. 8(a)(1) turning on employer
motivation. In the section of his Decision entitled "Conclusions," the Ad-
ministrative Law Judge used language which suggests that the Respond-
ent had both lawful and unlawful motivations for discharging Leonard
Worthington. Although the Administrative Law Judge in the instant case
did not apply the precise Wright Line analysis, we find that his analysis is
not rendered defective by Wright Line. The first step of the Wright Line
approach is satisfied by Administrative Law Judge Miller's consideration
of the General Counsel's presentation of a prima facie case that unlawful
motivations contributed to the discharge. In sec. ll,C,4, of his Decision.
Administrative Law Judge Miller found, consistent with the General
Counsel's contention, that the Respondent Union decided to discharge
Leonard Worthington because Worthington gave a sworn statement re-
lating to a charge against the Respondent to the Regional Office of the
National Labor Relations Board. The Administrative Law Judge found
that the Respondent's secretary-treasurer expressed the fear, before seeing
Worthington's statement, that it could damage the Union's defense, and,
after reading the statement, dismissed Worthington. The Administrative
Law Judge's findings with respect to the Respondent's defense satisfy the
second step of Wright Line. Administrative Law Judge Miller considered
and found unpersuasive the Respondent's argument and evidence present-
ed to prove that it dismissed Worthington because of his disregard for
established rules and specific instructions. The Respondent argued that it
discharged Worthington because he violated the Respondent's rules by
failing to consult counsel before giving the statement to the Board. In
support of this defense, the Respondent attempted to prove that it had
previously promulgated and publicized a rule requiring the Respondent's
business representatives to consult counsel before giving Board state-
ments in their capacity as the Respondent's representatives. In addition,
the Respondent presented evidence alleging that Worthington was spe-
257 NLRB No. 161
Judge and to adopt his recommended Order,3 as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Building Material & Dump Truck Drivers, Local
Union No. 420, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, El Monte, California, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph 2(a):
"(a) Offer Leonard Worthington immediate and
full reinstatement to this former position, or if that
position no longer exists, then to a substantially
equivalent position, without prejudice to his senior-
ity and other rights and privileges, and make him
whole, with interest, as set forth in footnote 3 of
the Board's Decision for any loss of earnings
which he may have sustained by reason of the dis-
crimination practiced against him."
2. Substitute the attached notice for that of the
Administrative Law Judge.
cifically instructed to handle through counsel the matter on which he
subsequently gave the Board statement. The Administrative Law Judge's
finding, stated in sec. ll,C,4, that the Respondent neither maintained the
rule nor gave the order as alleged, establishes that in the absence of
Worthington's protected activity the Respondent would not have dis-
missed him from employment.
We conclude therefore that although the Administrative Law Judge
failed to articulate his analysis of the Respondent's motivations in the
terms recommended in the Wright Line decision, his findings satisfy the
analytical objectives of Wright Line. Accordingly, we affirm his conclu-
sion that the Respondent's discharge of Worthington violated Sec. 8(aX4)
and (1) of the Act.
Member Jenkins does not consider Wright Line pertinent, inasmuch as
this is a pretext case. in which the Respondent had only one genuine
motive, an unlawful one, for its action.
3 The amount of backpay shall be computed in the manner set forth in
F W Woolworth Company, 90 NLRB 289 (1950), with interest thereon to
be computed in the manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962). In accordance with his dissent in Olympic Medical
Corporation, 250 NLRB 146 (1980), Member Jenkins would award inter-
est on the backpay due based on the formula set forth therein.
In sec. 111,C,3, par. 1, of his Decision, the Administrative Law Judge
cited two cases in which then Chairman Fanning dissented: Local Union
No. 204, Sheet Metal Workers' International Association. AFL-CIO (The
Majestic Company), 246 NLRB 318 (1979); Cato Show Printing Co.. Inc.,
219 NLRB 739 (1975). Member Fanning agrees with the proposition for
which the Administrative Law Judge cited those cases, and notes that his
dissents therein were based on other grounds.
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BUILDING MATERIAL & DUMP TRUCK DRIVERS, LOCAL 420
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge employees because
they have provided statements to National
Labor Relations Board representatives, or be-
cause they have given testimony in connection
with pending National Labor Relations Board
proceedings.
WE WILL NOT interfere with, restrain, or
coerce our employees, in any like or related
manner, with respect to the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Leonard Worthington imme-
diate and full reinstatement to his former posi-
tion, or, if that position no longer exists, to a
substantially equivalent position, without prej-
udice to his seniority or other rights and privi-
leges, and WE WILL make him whole, with in-
terest, for any loss of earnings which he may
have suffered by reason of our discriminatory
conduct with regard to his employment
tenure.
BUILDING MATERIAL & DUMP
TRUCK DRIVERS, LOCAL UNION No.
420, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMER-
ICA
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge:
Upon a charge filed June 12, 1978, and duly served, the
General Counsel of the National Labor Relations Board
caused a complaint and notice of hearing, dated Novem-
ber 29, 1978, to be issued and served on Building Materi-
al & Dump Truck Drivers, Local Union No. 420, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, herein called Respond-
ent Union. Therein, Respondent Union was charged with
the commission of unfair labor practices affecting com-
merce within the meaning of Section 8(a)(4) and (1) of
the National Labor Relations Act, as amended. Within
Respondent Union's answer, duly filed-which was sub-
sequently modified, in certain limited respects, when this
case was heard-various factual matters set forth within
the General Counsel's complaint have been conceded.
Respondent Union has, however, denied the commission
of unfair labor practices.
Pursuant to notice, a hearing was held in Los Angeles,
California, on September 12-14, 1979 before me. The
General Counsel and Respondent Union were represent-
ed by counsel; the Charging Party herein, Leonard
Worthington, was represented by a labor relations con-
sultant. Each party was afforded an opportunity to be
heard, to examine and cross-examine witnesses, and to in-
troduce evidence pertinent to the issues. Briefs received
from the General Counsel's representative and Respond-
ent Union's counsel have been duly considered.
Upon the entire record, evidence received, and my ob-
servation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent Union raises no question, with respect to
the General Counsel's jurisdictional claims. Upon the
complaint's relevant factual declarations, which Re-
spondent Union now concedes to be correct, and upon
which I rely, I find, for the purpose of this case, that Re-
spondent Union was, throughout the period with which
this case is concerned, and remains, an employer within
the meaning of Section 2(2) of the Act, engaged in com-
merce and business activities which affect commerce,
within the meaning of Section 2(6) and (7) of the Act.
Further, with due regard for presently applicable juris-
dictional standards, I find assertion of the Board's juris-
diction in this case warranted and necessary to effectuate
statutory objectives.
II. RESPONDENT UNION
Respondent Union functions as a labor organization; it
represents members and contractually covered workers,
specifically in matters related to collective bargaining
with various southern California employers, engaged in
the construction and building material industries, as well
as producers and distributors of rock, sand, and gravel.
In that connection, Respondent Union, through its af-
filiation with Teamsters Joint Council No. 42, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, was-throughout the
period with which this case is concerned-privy to the
Southern California Master Labor Agreement negotiated
for a 3-year term, 1977-80, between southern California
general contractors and various labor organizations sig-
natory thereto. That contract's supplementary Teamsters
craft special working rules provided, inter alia, for dis-
patch halls, established and maintained by contractually
bound local unions, from which qualified and competent
workmen desiring employment within the construction
and related industries would be referred for hire, by con-
tractors, or various employers in construction-related
businesses, who might desire their services.
Throughout the period with which this case is con-
cerned, Oliver Traweek, Respondent Union's secretary-
treasurer, functioned as such in that organization's
behalf. At all times material herein, I find that Traweek
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was, and remains, a supervisor within the meaning of
Section 2(11) of the Act, functioning as Respondent
Union's agent within the meaning of Section 2(2) and
(13) of the Act.
Ill. UNFAIR LABOR PRACTICES
A. Issues
The General Counsel's complaint, herein, presents a
single question for this Board's consideration. That ques-
tion has been thoroughly, and competently, litigated for
present purposes, it may be summarized as follows:
Did Respondent Union commit Section 8(a)(1) and
(4) unfair labor practices when its secretary-treasur-
er, Oliver Traweek, discharged Leonard Worthing-
ton, the Charging Party herein, because he had
given testimony to a National Labor Relations
Board representative?
Respondent Union contends that Worthington's termina-
tion should not be considered statutorily proscribed,
since he was dismissed for failure to follow his superior's
previously promulgated directive that union representa-
tives should consult with their organization's legal coun-
sel before giving statements or other evidence to Board
representatives. Further, Respondent Union contends
that-should it be found to have violated the statute-
this Board should, nevertheless, refrain from any discre-
tionary remedial directive, with respect to Worthington's
reinstatement, in view of the organization's subsequent
discovery that Worthington had, while employed, com-
mitted "serious and willful" violations of collective-bar-
gaining agreement provisions, and violations of law, and
had purportedly abused his position of trust.
B. Facts
1. Background
a. Worthington's employment history
Wortington was hired by Respondent Union's secre-
tary-treasurer, on August 2, 1976, for service as a busi-
ness representative; he served in that capacity until his
June 8, 1978, termination. Worthington policed Respond-
ent Union's collective-bargaining agreements with var-
ious construction industry employers, and serviced Re-
spondent Union's construction members, within a terri-
tory which compassed Los Angeles County's northwest
quadrant. As Respondent Union's business representative,
he handled grievances filed by persons who worked for
signatory contractors within his geographical area, previ-
ously designated.
b. The Redmond grievance
On May 17, 1978, Charles Redmond, an employee of
Harold E. Shugart Company, Inc., one of the construc-
tion industry firms, represented by Associated General
Contractors, with which Respondent Union then had a
collective-bargaining agreement, had filed a discharge
grievance with a union business representative.
The grievance had initially been received and handled
by Charles Tanberg, Worthington's fellow business rep-
resentative. Shortly thereafter, however, Tanberg's em-
ployment as Respondent Union's business representative
had been terminated, for nonrelated reasons, under cir-
cumstances which, certainly at this point, need not be
detailed or considered.
Redmond, who had not been a union member when
hired and had never acquired union membership, had not
been hired initially through Respondent Union's dispatch
hall. He had, however, been discharged-following more
than II months of service-purportedly because he had
determined to seek union membership and had decided
to grieve with respect to his termination.
Upon becoming cognizant of Redmond's duly filed
grievance, Respondent Union's secretary-treasurer had
concluded-so his testimony, which I credit in this con-
nection, shows-that the designated workman's dis-
charge complaint should not be pursued, since he had
presumably been hired "off the bank" without notice to
Respondent Union, in violation of contractually mandat-
ed referral procedures, and therefore had no contractual-
ly validated "right" with respect to continued tenure.
Traweek determined, however, that, because of Shu-
gart's contractual commitments, Respondent Union
should, rather, pursue a contract violation grievance
against Shugart, bottomed on that firm's prior decision to
hire Redmond, and retain his services, without a dispatch
hall referral.
During a staff meeting of business representatives,
which followed Tanberg's termination, previously
noted-which may have been held on May 22, but
which Worthington testimonially dated on May 24, with-
out contradiction-the business representative was di-
rected, in Tanberg's stead, to handle the problem gener-
ated by Redmond's grievance; he was directed to seek a
settlement with Shugart, however, pursuant to which the
latter firm would provide Respondent Union with a so-
called penalty payment equivalent to 30 days' pay, plus
fringe benefits; Redmond's reinstatement with full back-
pay computed in conformity with Respondent Union's
contract-so Worthington was told-was not to be re-
quested.
Worthington complied with Traweek's directives; fol-
lowing the May 24 discussions with an Associated Gen-
eral Contractors' representative, functioning as Shugart's
spokesman, Worthington gained a commitment that the
designated penalty sum would be paid. He communicat-
ed, then, with Respondent Union's secretary-treasurer,
seeking guidance with respect to whether arrangements
should be made whereby the penalty sum, when paid,
would be given the first registered workman on Re-
spondent Union's then current "employment" list, quali-
fied to fill the position, now presumably vacant, which
should have been filled through a dispatch hall referral.
While a witness, Worthington testified, credibly within
my view, that Respondent Union had, theretofore, fol-
lowed a double policy regarding the disposition of penal-
ty payments, received from contractually bound employ-
ers, in cases which involved contractual violations.
Under certain circumstances, Worthington declared,
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BUILDING MATERIAL & DUMP TRUCK DRIVERS, LOCAL 420
such penalty payments had previously been turned over
to qualified "top men," currently registered on Respond-
ent Union's dispatch hall out-of-work list; under other
circumstances, penalty payments received had been re-
mitted to Respondent Union's health and welfare fund.
While a witness herein, Traweek contended that Re-
spondent Union's master labor agreement provided for
penalty payment remittances to his organization's health
and welfare trust funds; he could not, however, locate or
designate the contractual provision.
According to Worthington, whose straightforward tes-
timony in this respect I credit, Secretary-Treasurer
Traweek asked who the next man was-qualified and
available for referral-on Respondent Union's current
registration list, who would receive the money. When
given the registrant's name, Traweek directed Worthing-
ton to have Shugart's penalty payment-for reasons with
respect to which Worthington could merely speculate-
remitted, not to the registrant, but to Respondent
Union's health and welfare fund. This Worthington did;
Redmond received no financial benefit, personally, from
Respondent Union's contract violation settlement.
2. Worthington's termination
a. Redmond's charge against Respondent Union
On Wednesday, May 31, presumably following his re-
ceipt of notice with regard to Respondent Union's griev-
ance settlement, Redmond filed an 8(b)(X)(A) charge,
Case 31-CB-2950, against Respondent Union, with the
Board's Regional Office in Region 31; therein, he
charged that Respondent Union had failed to press
proper "contract violation" charges against Shugart, spe-
cifically in his behalf. Worthington was, within Red-
mond's charge, designated as Respondent Union's repre-
sentative who might be contacted.
b. Respondent Union's reaction
On Friday, June 2, Respondent Union received a copy
of Redmond's charge, which the Regional Office had
sent by registered mail. The Union's office manager,
Aurora "Cookie" Samiano-who claimed that she con-
sidered Worthington's designation, as the union repre-
sentative to contact, unusual-nevertheless wrote "Len"
on the Regional Office's registered mail envelope; she
placed the envelope with enclosures directly in Worth-
ington's union office mailbox.
While a witness, Office Manager Samiano testified
that, directly upon her June 2 receipt of Respondent
Union's copy of Redmond's charge, she telephoned Sec-
retary-Treasurer Traweek, who was then out of the
office, to report the charge's receipt; that she told Re-
spondent Union's secretary-treasurer she would leave the
charge and related documents on his desk, for subsequent
consideration; that Traweek had, then and there, de-
clared his desire to communicate with Worthington re-
garding the charge; and that Respondent Union's secre-
tary-treasurer had requested her to "get in touch" with
Worthington, and communicate his request. Within my
view, Samiano's testimony, in this connection, merits no
credence. When cross-examined, she conceded that she
follows no "set" procedure with respect to handling the
Board charges when received; that she normally submits
them for Traweek's consideration, before making copies,
when she "feels" that he should see them first; that, with
respect to Redmond's charge, she wrote Worthington's
first name on the Board's envelope, nevertheless, and
"probably" put the envelope, with enclosures, directly in
his mailbox; that she does not remember whether she
may have "just handed" those documents to him; that
she did not, however, provide Worthington, concurrent-
ly or thereafter, with any written notification that
Traweek was looking for him; and that she could not re-
member whether she made copies of the Board docu-
ments-for Traweek, Worthington, or Respondent
Union's counsel-directly following their Friday morn-
ing, June 2 receipt, or subsequently on Monday, June 5,
or whether "anyone" wanted copies. Finally, Samiano
conceded that Respondent Union's secretary-treasurer,
when purportedly notified of the Redmond charge's re-
ceipt, on Friday, June 2, may have asked, merely, wheth-
er Worthington was "around" the union office, but that
her memory was "very vague" with respect to his reac-
tion. Subsequently, while a witness, Secretary-Treasurer
Traweek, who had heard Samiano's testimony, corrobo-
rated her declaration that she had reported the receipt of
Redmond's charge to him, during a June 2 conversation;
he did not, however, corroborate her testimony that he
had requested her to deliver a message to Worthington.
Considered in totality, Samiano's testimony, which, I
find, lacks consistency, will not, despite Traweek's pur-
ported corroboration, warrant a determination that she
communicated with Traweek by telephone on Friday,
June 2, regarding Redmond's charge, or that he request-
ed her, then, to pass along any message to Worthington,
whatsoever.
On Monday, June 5, Worthington found the Redmond
charge documents in his mailbox. He discussed them
with Business Representative Art Webb and Al Hernan-
dez, Respondent Union's president. The latter suggested
that Respondent Union's counsel should get copies of the
charge documents. According to Worthington, whose
testimony I credit in this connection, he thereupon re-
turned the charge documents, specifically, the originals,
to Samiano, for transmittal to Traweek, without making
copies for himself.
With respect to certain supposedly concurrent devel-
opments, the record, herein, reflects testimonial conflict.
Respondent Union's secretary-treasurer purportedly
recalled that he first saw Redmond's charge on Monday
morning, June 5, when he reached his office; that he
promptly sought a conference, later that morning, with
Respondent Union's counsel; that, before he left his
office, he tried personally to communicate with Worth-
ington, by radio, but without success; that he then direct-
ed Officer Manager Samiano to locate Worthington and
convey a message that her superior [Traweek] had to see
him; that Samiano subsequently telephoned him around
noon, at Counselor Pappy's office, with a report that she
had finally reached Worthington, who was standing at
her desk; and that he thereupon directed Samiano to
notify Worthington that he should "handle these particu-
lar charges" through Respondent Union's counsel.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Traweek's testimony with respect to these developments
substantially tracks and supplements Samiano's witness-
chair recital, which had been previously proffered and
which the secretary-treasurer had heard. However, Sa-
miano had testified further that, with Secretary-Treasur-
er Traweek listening over the telephone, she had
promptly relayed his directive; that Worthington had
protested, contending heatedly at some length that he
would "handle" the Redmond charge himself, since he
had been named therein, and that "nobody" would tell
him what to do with the charge; and that, following
some "choice" expletives, Worthington had thereupon
departed.
When cross-examined, Traweek conceded that-when
his purported June 5 telephone conversation with Sa-
miano, from Counselor Pappy's office, was in progress-
both the latter and Business Representative Horace Mir-
anda of Respondent Union had been present; neither of
them was summoned, however, to corroborate the secre-
tary-treasurer's proffered recollections with respect
thereto. Further, Traweek could not "recall" mentioning
his purported June 5 telephone directive to Worthington,
during any subsequent conversation concerned with the
latter's termination. The record, which will be reviewed
subsequently herein, warrants a determination, which I
make, that the secretary-treasurer's purported directive
was not mentioned.
Summoned in rebuttal, Worthington denied categori-
cally that any such June 5 telephone conversation, with
Samiano functioning as Traweek's intermediary, had
taken place. Worthington had previously testified that-
following his discovery of Redmond's charge and his de-
cision to return the Board's documents to Samiano for
transmittal to Respondent Union's secretary-treasurer-
he had telephoned the Regional Office representative
handling the matter; the two had then arranged for a
meeting, which would be held within the Regional
Office representative's office on the following day, June
6, at 2 p.m., when Worthington would provide a state-
ment with regard to Redmond's 8(b)(1)(A) claims.
Upon this record, Worthington's denials, with regard
to his purported June 5 receipt of some cautionary direc-
tive from Traweek, which Samiano had transmitted,
merit credence within my view. Respondent Union's sec-
retary-treasurer was not a persuasive witness; I found
him, throughout, disposed to proffer "slanted" testimony,
calculated to dictate Respondent Union's exculpation,
without regard for that testimony's possible conflict with
record evidence, clearly worthy of credit, and without
regard for that testimony's patent failure to comport
with reasonable probabilities. On several occasions, Re-
spondent Union's counsel felt constrained to admonish
him not to volunteer testimony.
I note further, that-despite the fact that he had heard
Worthington's testimonial references to their various
conversations-he could not initially recall the dates of
certain relevant contacts with his subordinate, precisely.
Samiano's testimony likewise struck me as contrived in
this connection. Within her brief, the General Counsel's
representative notes, cogently, that "gross insubordina-
tion" such as Worthington had allegedly displayed, when
notified of Traweek's purportedly cautionary directive
regarding the Redmond charge's referral to union coun-
sel, would surely have been mentioned, later-when
Worthington questioned Traweek's reasons for his termi-
nation subsequently discussed herein-had such a defiant
reaction really been previously manifested. However, the
record clearly warrants a determination that neither
Traweek's purported direction nor Worthington's pur-
portedly proclaimed defiance was subsequently men-
tioned. I find, consistently with the business representa-
tive's denial, that no such restrictive instruction was
communicated, and, consequently, that no confronta-
tional rejection of Traweek's purported Monday, June 5,
directive really took place.
On Tuesday, June 6, Worthington visited the Region
31 Office, and gave a Regional Office representative his
sworn statement, with regard to Redmond's Board
charge. Respondent Union's business representative, so
the record shows, did not request a copy of his state-
ment, directly following its completion.
c. Worthington's dismissal
On Wednesday, June 7, during a morning staff meeting
with Respondent Union's business representatives-
which Traweek had convened to discuss work assign-
ments and matters of general concern-the subject of
Redmond's previously filed grievance, Respondent
Union's position with respect to that grievance's disposi-
tion, and Redmond's consequent Board charge, was
raised.
While a witness, Worthington testified on direct exam-
ination, though somewhat summarily, with respect to
presumptively relevant and material statements made by
him, by Traweek, and by others during this June 7 dis-
cussion. Thereafter, pursuant to Respondent Union's re-
quest, through counsel, Worthington's previously sworn
statement given in connection with the present case-
wherein he had, before the hearing, provided a compara-
bly capsulized summary of the discussion conducted
during Respondent Union's June 7 staff conference, so
far as that discussion related to Redmond's prior griev-
ance and Board charge-was produced. Worthington's
sworn statement, then, revealed that he had personally
"tape recorded" the June 7 staff meeting discussion, to-
gether with his subsequent June 8 conversation with Re-
spondent Union's secretary-treasurer, which will be dis-
cussed further herein, when he was discharged. Pursuant
to counsel's promptly presented request, Worthington's
two tape recordings were thereupon produced, together
with typewritten transcriptions which purportedly repro-
duced their contents. Stipulations were then solicited and
received that the typewritten transcriptions, which had
been supplemented and slightly modified pursuant to
consensus, correctly reproduced Worthington's recorded
material; the transcriptions were then proffered for the
record. When submitted as Respondent Union's exhibits,
they were formally proffered and received for impeach-
ment purposes solely. Upon my review of the record,
however, I find that-considered in conjunction with
Worthington's witness chair recitals-they will not justi-
fy a determination that his testimony should be consid-
ered materially impeached. Rather, they provide a com-
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BUILDING MATERIAL & DUMP TRUCK DRIVERS, LOCAL 420
plete, concededly correct, record concerning various rel-
evant and material conversational exchanges, with re-
spect to which Worthington's testimony and previously
produced sworn statement had provided "highlight"
paraphrases, merely, filtered through fallible human
memory. Presumably holding similar views, Respondent
Union's counsel specifically relies on Worthington's re-
cordings, transcribed, as correctly reflective of what was
said, by him and by Traweek, during their June 7 and 8
confrontations; and I have, likewise, concluded that
those transcriptions may properly be considered substan-
tive evidence, herein. See N.L.R.B. v. Local 90, Operative
Plasterers and Cement Masons' International Association of
the United States and Canada, AFL-CIO [Southern Illi-
nois Builders Association], 606 F.2d 189, 192 (7th Cir.
1979), enfg. 236 NLRB 329 (1978), in this connection.
During a somewhat disjointed, rambling discussion-
which, inter alia, compassed various references to Red-
mond's purportedly questionable employment history, his
discharge, his subsequently filed grievance, Traweek's
declared belief that Respondent Union's disposition of
Redwood's grievance had been contractually justified
and legally privileged, and Respondent Union's purport-
edly difficult prior experience with a similar discharge
situation-Worthington reported that he had given a
Board statement with reference to Redmond's charge,
and had told the truth. In material part, his transcribed
record with respect to what happened then, which I
would rely on for present purposes, reads as follows:
Oliver: I should say he's [?] filed charges too,
against the local for the Shugart situation. No, he
didn't, he had [Redmond], I believe is his name
Leonard: . . . That was the one where you told
me to go and dump the non-Union guy . . . I gave
a statement at the Board yesterday and I had to tell
the truth about . . . why it was I went in there and
didn't represent him.
Oliver: Well . . . I don't expect you to tell any-
thing but the truth, but something like that, I think
we should touch base. I was trying to get ahold of
you yesterday [sic] because I saw your name on some-
thing and where to check with you .... I didn't
really know everything that went on. The only thing,
what else did you tell the Board then? What did you
tell the Board?
Leonard: Well, they wanted to know why I
didn't carry on with the case, why I didn't do any-
thing for him after we had said we could ....
Oliver: Maybe I'm crazy, I don't know what you
told the Board, but I'm kind of goosey now, what
maybe you did tell them, because I think you was
wrong . . . The guy lied and he's trying to bury 420
. . and it's our duty to protect 420 now.... And
now, well, your testimony may have helped him,
against 420 . . . that [charge] thing is a big long
thing that specifically says 420 didn't represent the
guy. Now you just indicated that you were down
there testifying that you didn't represent the guy.
You were told not to represent him, the way I un-
derstand it....
Oliver: Did you get a copy of your statement?. .
You probably buried me with 420 with your statement
. . Where did you sign it? . . . We should have it
.. .. By the time the day is over, I should have a
copy. You know, they ask you if you want a copy
.. .. We need to get a copy so we know what to
say. We don't want to make a liar out of somebody
else. I wish you would have touched base with
somebody before you go to these-hearings so we'll
all know where we're going. In fact that was one of
the things we wanted to talk about today.... I
think, pertaining to seriousness such as that, I want
to at least be informed, say, what shall we do....
Oliver: I think, I don't know what you said. I'd
like to see a copy of the transcript, what you gave, so
we know, cause somewhere I'll probably be involved in
some kind of statement and I know, and we don't ask
you to lie, we just say some places in this business you
just be quiet ... Lean it your way, especially, if its
trying to-the local, because we are here to help
the local ....
Oliver: . . . I did try to get ahold of Leonard yes-
terday [sic]. What time were you over there?
Leonard: About 2:00.
Oliver: I didn't see your name until after the mail
came in about 10:00. I was looking at that charge plus
another one and then that's when I saw Leonard. I
had missed who the rep was because I thought
they'd be talking to me. Cookie and I both tried to
get ahold of Leonard. I said let's get ahold of Leonard
and tell him to be sure and talk to the attorney before
we make any decision and that was some time in the
afternoon ...
Leonard: I talked to Cookie. When I was down
there at Region 31 she called me on the radio and I
was headed to the Building Trades.
Oliver: Well, you'd already been up there then,
huh?
Leonard: Yea, but she didn't say nothing about it.
Oliver: Well, I guess that's the thing. I specifically
turned around and tried to get ahold of you because I
wanted to touch base on that one phase because I
could see us being set up.
Leonard: Because the minute I got that in my
box I took it to Al [Hernandez] and we discussed it.
I guess I talked it over with Art [Webb] . . . and
you were gone and I took it to Cookie and I said
. I don't know about . . .
[Webb]: That was last Thursday wasn't it Leon-
ard? .. . You gave it to Cookie ...
Oliver: Well, I think we was correct in not trying
to get his job back, because he's out there illegally.
[Emphasis supplied.]
Pursuant to Traweek's request, Worthington obtained a
copy of his statement later the same morning; he left it
with Respondent Union's office manager, for Traweek's
consideration.
That afternoon, June 7, when Worthington returned to
Respondent Union's hall, he was summoned to the secre-
tary-treasurer's office. Respondent Union President Her-
nandez and Business Representative James Thompson
1311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were present. Traweek read portions of Worthington's
Board statement aloud. He declared that Worthington
had given "slanted" testimony which might damage him,
and Respondent Union's defense.
My findings in this connection rest on Worthington's
credible testimony. Respondent Union's secretary-trea-
surer made no reference to any June 7 afternoon conver-
sation with Worthington, when he concluded Respond-
ent Union's testimonial presentation. Previously, while a
witness, Respondent Union's office manager had, like-
wise, neither recalled nor discussed such a conversation.
Neither Hernandez nor Thompson was summoned to tes-
tify. Worthington's proffered recollection, regarding the
conversation in question, therefore, stands without con-
tradiction.
Worthington thereupon challenged Traweek to desig-
nate any portions which were not true. Respondent
Union's secretary-treasurer, however, ignored the chal-
lenge. He handed Worthington's statement to Hernandez,
who, so Worthington testified, commented that he had
described the situation correctly, and to Thompson, who
said nothing. Traweek directed Worthington, then, to
have Respondent Union's radio removed from his car;
Worthington took this to mean that he was being termi-
nated. Respondent Union's secretary-treasurer, however,
finally retracted his directive; he said he would "sleep"
on the matter.
On Thursday, June 8, shortly before 5 p.m., Worthing-
ton found a written memorandum in his mailbox at Re-
spondent Union's office. The memorandum, directed to
Local No. 420's business representatives and staff, pur-
ported to notify them "again" that: ". . . when any
charges are filed against this Local Union or any B.A.,
those charges will be handled by our Union attorney."
Shortly thereafter, however, Traweek called Worthing-
ton into his office, to confirm his discharge; he did so,
indirectly, by notifying Worthington that his "appoint-
ment" to have his car radio removed had been arranged.
Worthington tape-recorded his June 8 conversation
with Traweek, just as he had previously recorded their
June 7 staff conference discussion. A transcript, stipulat-
ed to be correct-save for one minor modification-has
been proffered and received herein for the record. It re-
flects a rather discursive discussion-which, inter alia,
compassed renewed references to Redmond's discharge,
the merits or lack of merit of his subsequently filed
grievance, the procedure which had been followed with
respect to its filing and disposition; Worthington's query
with respect to whether he was being discharged be-
cause Respondent Union's secretary-treasurer considered
him politically "allied" with discharged Business Repre-
sentative Tanberg, who had meanwhile declared his in-
traunion candidacy for Traweek's position; and Worth-
ington's proffered judgments with respect to certain per-
sonal or factional conflicts within Respondent Union's
staff. In material part, however, with particular reference
to Worthington's termination, the transcript, which I
would again rely on, reads as follows:
Oliver: We've got an appointment for you tomor-
row at 8:00 at the radio place and you can get your
radio out, somewhere around noon, I suspect. You
said you gave a deposition over there which I have a
copy of: They got in on that awful quick, because
we only got it the second, I think. Appears here the
sixth; usually it takes longer than that to even get
around to it. Usually they work through our attorneys,
but I guess chance saw differently on that one.
Leonard: So I'm fired?
Oliver: Yep.
Leonard: For that?
Oliver: Nope, for whatever. That is part of it.
Leonard: Well, you said I lied in it. Where did I
lie in it?
Oliver: Well you're working for the Union, Leon-
ard, not against it. .. That don't show it. That's one
of the points. That does not show it.
Leonard: Well, when you have to give a state-
ment to the Board, that's what they expect is the
the truth, isn't it?
Oliver: I would never tell you to say anything
other than the truth.
Leonard: Yes, but you're firing me and saying
that's part of why I'm being fired or all of it in fact.
Oliver: Why would they ask you over there to
make a statement when they know they got to go
through our attorneys . . . all the cases when
there's any charge against the local or anyone in the
local here. Our attorneys handle that.... I know
that I took stuff down there Monday to [Respondent
Union's counsel] Poppy and he was supposed to be
handling this. He said that it was a touchy situa-
tion. ....
Leonard: It's really something to get fired for
representing a guy, or trying to.
Oliver: Well . . . I wouldn't recommend that you
stress yourself too much anywhere trying to repre-
sent people out here that are taking over our mem-
bers' jobs....
Leonard: f you fire me for making a Board state-
ment, that's as cute as I can see it.
Oliver: Well that's not ... well why.... Well
anyway its done....
Oliver: . . . Now I will say this, really, was the
straw that broke the camel's back. If you haven't
learned in two years to do better than that even when
you're down giving deposition, you haven't learned too
much, because that is definitely not what you're here
for . . . I had quite a few people, I said, read this
and they thought the guy who had filed the charges
had given it . . . and I said no, he's the guy that
works for me testifying and made that statement
supporting the guy's charge against me and 420
Oliver: Then you testified and you knew that I
was down at the attorney's . . . we happened to be
down on something else and we were giving it to him
and talking to him about it and he said I'll handle it
all and that's the procedure all the time when charges
are against us . . . the attorneys handle it, not us.
. . .Let me ask you this . . . if this charge was filed
Wednesday [May 31] . . . and the following Tuesday
1312
BUILDING MATERIAL & DUMP TRUCK DRIVERS. LOCAL 420
[June 6] you're down there giving a deposition, I can't
understand that.
Leonard: Cookie put the god damn thing on my
desk or in my box there with my name on it, and I
asked Al about it, and I asked Art about it, and Al
said we better give this thing on to the attorneys,
and you weren't here, so I gave it back to Cookie,
and I said see that Oliver gets this, I'm sure he
doesn't know what it says.
Oliver: And when I got it Monday ... pretty quick
I went down to give it to Pappy and I said Pappy this
is the type that you definitely .. . got to handle . . .
and then the first thing the next day ... you 're on a
working day and you're down giving a deposition like
that.
Leonard: Well, hey, what time is my appointment
at the radio shop?
Oliver: 8:00....
Leonard: Am I getting . . . five days vacation
coming from the past year plus vacation that I have
accumulated?
Oliver: I don't know. I told her to pay you ev-
erything you have coming. [Emphasis supplied.]
Shortly after leaving Respondent Union's office, so the
record shows, Worthington called Samiano on his car
radio; he requested a written statement showing the
reason for his termination. According to Worthington,
whose testimony-rather than the divergent recollections
of Respondent Union's secretary-treasurer and office
manager-I credit in this connection, Traweek interrupt-
ed their conversation; he came on Respondent Union's
radio to ask whether Worthington wanted a termination
notice which declared that he had been dismissed for
giving a statement to the Board. When Worthington de-
clared that "if that was the fact" such a written state-
ment was what he wanted. Respondent Union's secre-
tary-treasurer responded, so I find, with a censorious
rebuke which suggested nonconcurrence. Worthington
never received a written termination notice with Re-
spondent Union's reason for his discharge shown.
3. Subsequent developments
On July 11, 1978, Redmond was notified, within a
letter signed by the Regional Director for Region 31,
that further proceedings with respect to Case 31-CB-
2950, filed against Respondent Union and others, were
not considered warranted, since there was insufficient
evidence to establish that Respondent Union, or any
other labor organization designated therein, had violated
Section 8(b)(1)(A) of the statute. In this connection, the
Regional Director noted that:
. . . you were hired in violation of the Master
Labor Agreement's provisions, to which the Em-
ployer and the Unions are parties, requiring exclu-
sive, union hiring hall referral. In these circum-
stances, the Union would have been privileged to
request your expulsion from the job at any time
during your employment. As you were employed
for nearly a year in clear violation of the agree-
ment, we conclude that you were never properly in
the unit, and that, therefore, the Union owed you
no duty of representation regarding your discharge
grievance.
When this case was heard, Respondent Union's counsel
represented, for the record, that the Regional Director's
dismissal of Redmond's charge was never appealed.
However, upon the General Counsel's protest that coun-
sel's representation should be disregarded as irrelevant,
the subject was dropped.
C. Discussion and Conclusions
1. The General Counsel's contention
Within her brief, the General Counsel's representative
cogently notes that the principal question presented
herein relates to whether Worthington was dismissed,
contrary to Section 8(a)(4) and (1) of the statute, because
of his "testimony" given in connection with a Regional
Office investigation of Redmond's 8(b)(l)(A) charge,
against Respondent Union and two other labor organiza-
tions.
In this connection the General Counsel;s representa-
tive contends first that Section 8(a)(4)'s proscriptive
reach is sufficiently broad to prohibit discrimination by
employers, not merely in cases where employees have
been terminated for giving testimony at formal hearings or
filing charges under the statute, but likewise in cases
where the sole employee conduct involved consisted of
sworn statements given to Board representatives during
their investigation of some unfair labor practice case.
This construction of the statute, which Respondent
Union herein does not challenge, has received judicial
concurrence. N.L.R.B. v. Robert Scrivener. d/b/a AA
Electric Company, 405 U.S. 117 (1972); see, likewise, King
Louie Bowling Corporation of Missouri, 196 NLRB 390,
397, fn. 2 (1972), and cases therein cited; compare Nash
v. Florida Industrial Commission et a., 389 U.S. 235, 238
(1967), wherein the Supreme Court had theretofore
noted that Section 8(a)(4) reflected a clear congressional
purpose to protect employees from discrimination in re-
taliation for giving "reports" to Board representatives,
and to prevent employers from coercively interfering
with this Board's channels of information.
Herein, the General Counsel's representative seeks de-
termination that Worthington was terminated for his
action in giving a statement to a Board representative, or,
alternatively, that he was dismissed, in part, because the
content of his statement displeased Respondent Union's
secretary-treasurer.
2. Respondent's defense
Respondent Union contends, however, that Worthing-
ton was not dismissed because he gave a Board repre-
sentative his statement relative to Redmond's charge, but
because he did so without first consulting with Respond-
ent Union's legal counsel. Within his brief, Respondent
Union's counsel, fairly, poses the question presented,
from his client's point of view, thusly:
1313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Was Leonard Worthington fired for the testimony
he gave to the Board, or for going to the Board
without first consulting with the Union's attorneys?
If the first, then his discharge would concededly
violate Section 8(a)(4) of the Act, whether or not
his testimony was true or false, and whether or not
it harmed the Union's interests. If on the other hand,
Worthington were fired for refusing to follow the
Union's instructions to consult with its attorneys before
giving evidence to the Board then that would not vio-
late the Act .. .
The evidence presented at the hearing clearly
shows that Worthington was fired for the second
reason. The Union had a clear policy requiring busi-
ness agents to consult with the Union's attorneys before
giving any evidence to the Board. Leonard Worthing-
ton knew of this policy and, if Oliver Traweek and
Aurora Samiano are credited, was reminded of it on
June 5th, before he made arrangements to give his
statement to the Board. While Worthington denied
any knowledge of this rule, this is simply incredible,
in view of the number of times the subject was
raised at Union staff meetings over the two years
Worthington worked for Local 420.
The Union's enforcement of this rule does not violate
either the spirit or the letter of Section 8(a)(4). The
purpose of Section 8(a)(4) . . . is to protect employ-
ees from discrimination in retaliation for giving tes-
timony to the Board, and to prevent employers
from coercively interfering with the Board's chan-
nels of information. A requirement that business
agent employees first "touch base" with the Union's
attorneys before giving evidence to the Board does
not frustrate either of these purposes ...
As the Board has recognized, Unions have a legiti-
mate interest in seeing that their business agents, or-
ganizers and representatives understand and follow
Union policies.... Unions are bound by the words
and acts of these representatives, and they are not
required by the Board to tolerate insubordination,
or to allow individual business agents to go their
own way, oblivious of Union interests and objec-
tions. .... Worthington's willful disobedience of a
valid Union rule, and his deliberate refusal to notify
the Union that he planned to give a statement to the
Board after being told by Traweek to go through the
attorneys, clearly justified his discharge for refusal to
follow orders. The Union's interest in the contents of
his statement does not change or excuse Worthing-
ton's flagrant insubordination. [Emphasis supplied.]
3. Discussion
Respondent Union's contention that Worthington's ter-
mination flouted no statutory proscription-should a de-
termination be found warranted that he was dismissed for
refusing to follow a previously promulgated and publicized
union policy, or some specific directive, to consult with union
counsel before giving a sworn statement to Regional Office
representatives-may well be consistent with this Board's
decision principles. Local Union No. 204, Sheet Metal
Workers' International Association, AFL-CIO (The Majes-
tic Company), 246 NLRB 318 (1979); compare Cao Show
Printing Co., Inc., 219 NLRB 739, 742, 746-747 (1975).
Upon this record, however, counsel's suggestion-that
Worthington was, really, dismissed for that presumably
privileged reason-lacks persuasive evidentiary support.
My conclusion, that Respondent Union's proffered
rationale for Worthington's discharge lacks factual justi-
fication, rests on several grounds.
First: Counsel's present claim, that Respondent Union
had some "clear policy" requiring business representa-
tives to consult with that organization's legal counsel,
before giving statements to Board representatives, rests
on record testimony which, within my view, merits no
credence.
When served with a subpoena duces tecum, which
called for the production of documents wherein such a
policy had been promulgated, publicly proclaimed or re-
iterated-prior to Worthington's termination-Respond-
ent Union conceded, for the record, that no documents
reflective of that purported policy, drafted or distributed
prior to July 8, 1978, could be produced. Respondent
Union's contention, that the organization's business rep-
resentatives had, previously, been otherwise notified,
with respect thereto, rests on testimony proffered by Sec-
retary-Treasurer Traweek, and two union business repre-
sentatives solely. My review of the record, however,
persuades me that their witness chair recitals-particular-
ly with reference to Respondent Union's purportedly de-
clared policy-cannot reasonably be considered proba-
tive.
In this connection, Respondent Union's secretary-trea-
surer claimed, while a witness, that, during two 1977
staff conferences, his organization's business representa-
tives, Worthington included, had been specifically in-
structed that any Board charges, filed against Local 420,
were to be "handled" through the Local's attorney.
More particularly, Traweek testified that, during their
first 1977 meeting, Respondent Union's business repre-
sentatives had been directed to "touch base" with the
Local's counsel, to "go through" such counsel, and to
have counsel "present" whenever they gave statements
to Board representatives. The secretary-treasurer de-
clared that, during his second 1977 staff meeting, he had
"just kept hammering" with respect to his directive, to
be sure the business representatives understood it.
Nevertheless, the record herein reveals clearly that-
when confronted, subsequently, with Worthington's June
7, 1978, declaration that he had given a Board statement
the previous day-Traweek made no references, whatso-
ever, to restrictive policy directives, purportedly delin-
eated previously. He declared his current thought,
merely, that Worthington should have "touched base"
with him, his "wish" that Worthington had done so, his
thought that he should "at least be informed" before
business representatives gave statements, and his purport-
ed June 6 determination-when he had, so he claimed,
first become cognizant with respect to Worthington's
designation, as Respondent Union's representative to
contact, on Redmond's charge-that Worthington should
promptly be "told" to "talk" with Respondent Union's
1314
BUILDING MATERIAL & DUMP TRUCK DRIVERS, LOCAL 420
counsel before any "decision" might conceivably be
reached with respect to their organization's position.
If, in fact, Traweek had really considered Worthing-
ton's personal failure to forward Redmond's charge, him-
self, to Respondent Union's counsel-coupled with his
consequent failure to seek a conference with counsel,
before communicating his readiness to provide a Board
representative with any statement relative thereto-seri-
ous derelictions, violative of previously promulgated union
directives, his July 7 failure even to mention those prior
directives, or to charge Worthington with having violat-
ed them, must be deemed inexplicable. The fact that pur-
portedly repeated 1977 directives were neither men-
tioned, nor relied on, to buttress or justify Traweek's
manifest perturbation provides persuasive support, within
my view, for a determination that no such directives had,
then, really been promulgated, renewed, or reiterated.
I note, in this connection, that Respondent Union's
office manager, so her testimony shows, routinely places
Board charges directly on Secretary-Treasurer Traweeks
desk, for his personal consideration. Further, I note
Traweek's testimony that he, himself, routinely consults
Respondent Union's counsel, promptly, with respect to
such charges. In light of Samiano's purportedly routine
practice, and Traweek's purportedly routine referral pro-
cedure-clearly calculated to forestall possible contacts,
between union spokesmen and Board representatives,
before union counsel had been consulted-Respondent
Union's defensive presentation, within my view, suggests
no persuasive reason why Respondent Union's secretary-
treasurer would have, nevertheless, considered it crucial-
ly necessary to promulgate supplementary policy direc-
tives that subordinate business representatives should
refer Board charges against Local 420 to their organiza-
tion's attorney, and "touch base" with him before giving
Board statements. Certainly, Respondent Union's presen-
tation suggests no compelling reason why Traweek
might conceivably have considered himself constrained
to keep "hammering" with respect to such a policy di-
rective, during staff meetings. The record, within my
view, will not warrant a determination that he did.
Respondent Union's secretary-treasurer, clearly, mani-
fested his concern-during the June 7 staff meeting now
under consideration-that Worthington might have dis-
served Local 420's interest by giving a Board statement
without having previously consulted the Local's attor-
ney. Traweek's declaration of concern, manifested after
the fact merely, provides no persuasive warrant, howev-
er, for a determination that he considered Worthington
guilty of flouting some previously communicated direction.
When summoned as Respondent Union's witnesses,
Business Representatives Robert Travis and Gene
McFadden proffered testimony patently calculated to
corroborate Traweek's purported recollection that they
had previously been told, as Travis recalled:
. . .that under no circumstances was I to communi-
cate with the NLRB in reference to charges either
against myself or the Local Union without going
through a counselor's office for a legal opinion.
Neither business representative, however, could recall
the several specific meetings during which that directive,
or some equivalent, had purportedly been communicated.
Travis testified merely that Respondent Union's secre-
tary-treasurer held two or three staff meetings yearly,
and that, before 1978 particularly, he had reiterated
Local 420's purported policy during "every other" meet-
ing. McFadden declared, however, that three or four or
more staff meetings were convened yearly, and that
Traweek had reiterated his policy directive during
"every" meeting, or "almost all" such gatherings.
Travis purportedly recalled a single late 1976 or early
1977 occasion when Respondent Union's secretary-trea-
surer had separately admonished him, during a personal,
one-on-one, conversation, because he had discussed a pend-
ing charge with a Board representative without "talking
to legal" first; he provided no details, however, with
regard to that charge's substance, or the nature of his
contact with a Board representative. Travis could merely
reiterate his prior testimony that Traweek's admonition
had recapitulated statements purportedly made at previ-
ous staff meetings, none specified.
I note in this connection Worthington's contrasting,
but likewise nonspecific, testimony, proffered without
challenge or contradiction, that more than 2 years previ-
ously Office Manager Samiano had personally referred
him directly to a Board representative, then visiting Re-
spondent Union's hall, who desired a statement from
him, in connection with a charge filed against Respond-
ent Union solely; Worthington had, so he testified, pro-
vided the sworn statement requested without consulting
union counsel first, and without union counsel being
present. So far as the record shows, he had neither been
admonished nor reprimanded thereafter.
McFadden likewise purportedly recalled a staff confer-
ence, held on some date which he could not remember,
during which Traweek had allegedly reiterated his re-
strictive instruction regarding contacts with Board repre-
sentatives, and Worthington had registered a protest. Re-
spondent Union's business representative, however, could
neither remember the context within which the subject
had been raised, nor could he recall whatever else might
have been said, regarding any subject whatsoever, during
the staff conference noted.
When queried with regard to Traweek's June 7, 1978,
meeting, specifically, both Travis and McFadden re-
vealed notably vague recollections. They purportedly re-
called statements which cannot be found in Worthington's
contemporaneous transcribed tape recording; they con-
ceded, however, that they could not currently recall cer-
tain other statements, which can be found, clearly set
forth therein.
The record further reveals tangentially that, subse-
quent to Worthington's discharge, both Tanberg and he
were separately "tried" before Respondent Union's ex-
ecutive board, with respect to various "internal" union
charges. McFadden, Respondent Union's vice president,
concededly sat on his organization's trial board which
heard the Worthington charges. Travis recalled his trial
board service with respect to Tanbergs purported dere-
lictions. However, he could not recall, positively, whether
1315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or not he sat with Respondent Union's executive board
when comparable charges against Worthington were
heard. The business representative's conceded failure of
memory, with respect to such a comparatively recent de-
velopment, despite his testimonially proffered verbatim
recapitulation with respect to Traweek's relevant policy
directives, purportedly communicated during "every
other" staff conference within a prior 2-year period, sug-
gests a highly convenient memory, certainly.
Within the compass of Respondent Union's parochially
circumscribed social and business world. Travis and
McFadden were, within my view, merely complaisant
timeservers, clearly beholden to their organization's sec-
retary-treasurer; with due regard for their revealed wit-
ness chair demeanor, and their testimony's multiple defi-
ciencies and divagations, I cannot consider them, for
present purposes, credible witnesses.
Second: Counsel's further alternative record claim-
that Worthington, during a June 5 conversation with Re-
spondent Union's office manager, wherein Traweek's
purported "order" had been relayed, had been specifical-
ly directed to consult with Local 420's retained attorney
before giving sworn statements to some Board repre-
sentative-has, previously herein, been rejected.
With respect thereto, I have, inter alia, noted Re-
spondent Union's failure to summon Business Representa-
tive Miranda, whose testimony might conceivably have
corroborated Traweek's proffered recollection. Consist-
ently with well-settled principles, I draw the permissible
inference that, had Miranda been summoned, his testimo-
ny would not have persuasively corroborated Traweek's
in this connection.
Respondent Union's counsel, George Pappy, had, so
Traweek testified, likewise heard his side of the June 5
telephone conversation which he purportedly had main-
tained with Office Manager Samiano, wherein she had
supposedly been directed to convey his "instruction" re-
garding the procedure which Worthington should follow
with respect to Redmond's newly filed charge. Pappy
did not present himself as Traweek's corroborative wit-
ness. Since he was Respondent Union's counsel of record
herein, however, I draw no adverse inference from his
concurrent failure to testify.
Most significantly, however, Traweek's recorded com-
ments, during his June 7 staff conference, and his final
June 8 conversation with Worthington, persuasively belie
his present contention that Worthington was given spe-
cific June 5 orders, which he subsequently flouted.
I note, in this connection, Traweek's concessions,
twice during Respondent Union's June 7 staff meeting,
that he presumably had been "trying to get ahold" of
Worthington the previous day on Tuesday, June 6; his
conjoined concession that his desire to have Respondent
Union's business representatives "touch base" with some-
one before submitting Board statements was "one of the
things" he wanted to discuss, then and there, during their
June 7 conference; his further declaration that, following
his prior review of Redmond's charge, both Samiano and
he had "tried to get ahold" of Worthington, so that the
latter could be told to discuss Respondent Union's posi-
tion with counsel; and, likewise, his subsequent comment
that he had "tried to get ahold" of Worthington because
he could see a possible "set up" prejudicial to Respond-
ent Union, all these foreshadowed in Redmond's charge.
On June 8, during their final conversation, Respondent
Union's secretary-treasurer told Worthington twice that,
on Monday, June 5, he [Traweek] had promptly taken
Redmond's charge papers down to Counselor Pappy's
office; however, he mentioned no telephone call received
there, purportedly from Samiano, which had allegedly
prompted him to give Worthington relevant "orders,"
which Samiano had been directed to convey. Rather,
during their June 8 talk, Traweek told Worthington, so
the latter's transcribed tape recording clearly shows, that
he had "happened" to be down at Pappy's office with
regard to another matter; that Redmond's charge had,
then and there, been given over to Respondent Union's
counsel; that Pappy had declared he would handle the
matter; and that such procedures were followed "all the
time" whenever Board charges were filed against Re-
spondent Union. Again, however, Respondent Union's
secretary-treasurer made no concurrent references, what-
soever, to prior June 5 directives, purportedly conveyed
to Worthington through Office Manager Samiano, which
had presumably been disobeyed.
With matters in this posture, I find, consistently with
the General Counsel's contention, that Respondent
Union has not persuasively demonstrated a purportedly
"clear" previously proclaimed policy whereby business
representatives have been required to consult with union
counsel before giving statements to Board agents, which
Worthington had presumably flouted. Further, with due
regard for the record considered in totality, I find that
Respondent Union has not persuasively demonstrated
any specific directive, timely communicated to Worthing-
ton personally, that he should "handle" the Redmond
charge himself "through" designated union counsel.
4. Conclusions
Upon this record, I conclude, consistently with the
General Counsel's contention, that Worthington's June 8
termination derived, primarily, from Traweek's resent-
ment over his presumptive decision to give a Board rep-
resentative his sworn statement, relative to Redmond's
8(b)(1)(A) charge, without "touching base" first with his
Local 420 superior. In that connection, so I have found,
Respondent Union's secretary-treasurer had concurrently
manifested his apprehension that Worthington's sworn
statement might prejudice Respondent Union's defense
with respect to Redmond's charge. Thus, consistently
with the General Counsel's further contention, some de-
termination would clearly seem warranted that
Traweek's concern, particularly with regard to the sub-
stantive content of Worthington's Board statement, sig-
nificantly contributed to his discharge decision. I so find.
My conclusions derive, particularly, from the testimo-
nial record, herein, which reveals that Respondent
Union's secretary-treasurer, when he learned about
Worthington's June 6 statement, queried him, first, with
respect to what he had then told the Board's Regional
Office representative, while declaring his concern that
Worthington's statement had probably "buried" him
[Traweek] together with Respondent Union herein. Re-
1316
BUILDING MATERIAL & DUMP TRUCK DRIVERS, LOCAL 420
spondent Union's secretary-treasurer then directed
Worthington to procure and provide a copy of his Board
statement. He did not request a copy, I find, for transmittal
to Respondent Union's counsel, but specifically because
Respondent Union's responsible leadership would not
"want to make [somebody else] a liar" should they be re-
quested to give some comparable statement.
Though Traweek's recorded and transcribed June 7 re-
marks clearly reveal his belated June 6 determination to
notify Worthington that he should "talk" with Respond-
ent Union's counsel, that determination, I find, merely
reflected his desire to forestall some possible prejudice to
Respondent Union's interest, rather than concern that
Worthington might, otherwise, disregard a previously
promulgated directive to confer with counsel before
giving a Board statement.
When provided with a copy of Worthington's state-
ment, later that day, Respondent Union's secretary-trea-
surer did not charge him with any failure to follow
orders, he charged him, merely, with having given
"slanted" testimony, potentially prejudicial to Respond-
ent Union's defense.
Then, on June 8, having "slept" on the matter,
Traweek, following a further conversational reference to
Worthington's prior "deposition" given quickly to a Re-
gional Office representative, confirmed his discharge.
When Worthington asked whether he was being termi-
nated for "that" specifically, namely, his Board state-
ment, Traweek replied, "That is part of it." Then he
commented further that Worthington's statement did not
"show" he was working for Respondent Union.
Within his brief, Respondent Union's counsel contends
that Traweek, during this June 8 conversation, twice
denied that Worthington's discharge had been motivated
by the fact that he had given a Board statement which
might disserve Respondent Union's interests. The secre-
tary-treasurer's denials, however, were qualified; consid-
ered in context, they carry no persuasion. Traweek's first
"nope" was promptly followed by his concession, herein
noted, that Worthington's statement had "partly" moti-
vated his discharge. Later, when specifically charged
with having "fired" Worthington for "making" his
Board statement, Traweek bumbled; he finally declared,
lamely, that "anyway" the deed was done.
Respondent Union's secretary-treasurer never taxed
Worthington, specifically, with his personal failure to
consult union counsel, before giving his statement; he de-
clared his bewilderment, merely, that a Regional Office
representative had taken Worthington's statement "when
they know" they should go through Respondent Union's
attorneys.
Further, Traweek characterized Worthington's failure
to do "better" when giving his "deposition" as the straw
which broke the camel's back. Though he declared, sub-
sequently, that Board charges filed against Respondent
Union were handled by union counsel "all the time"
Traweek proffered no concurrent claim that Worthing-
ton had been, previously, so instructed together with his
fellow business representatives, or that his June 6 Re-
gional Office visit had flouted some specific directive pre-
viously communicated.
With matters in this posture, Worthington's dismissal
clearly merits characterization as discrimination, statutor-
ily proscribed. I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent Union's activities set forth in section III,
above, since it occurred in connection with that labor or-
ganization's operations referred to in sections I and II,
above, had and continues to have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States. Absent correction, such activi-
ties could lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
In view of these findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
I. Respondent Union, Building Material & Dump
Truck Drivers, Local Union No. 420, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is an employer engaged in com-
merce, and business activities which affect commerce,
within the meaning of Section 2(2), (6), and (7) of the
Act, as amended.
2. Respondent Union's secretary-treasurer-when he
discharged Leonard Worthington from his position as
Respondent Union's business representative, because
Worthington had provided a sworn statement to a Board
representative who was investigating a charge against
Respondent Union herein-discriminated against Worth-
ington in violation of Section 8(a)(4), and interfered with,
restrained, and coerced Worthington with respect to his
exercise of statutorily guaranteed rights, in violation of
Section 8(a)(1) of the Act, as amended.
3. The unfair labor practices herein found are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act, as amended.
THE REMEDY
Since I have found that Respondent Union has com-
mitted, and has thus far failed to remedy, certain unfair
labor practices which affect commerce, I shall recom-
mend that it be ordered to cease and desist therefrom,
and take certain affirmative action, including the posting
of appropriate notices, designed to effectuate the policies
of the Act.
A. Reinstatement
I. General recommendation
Specifically, since I have found that Respondent
Union, through its secretary-treasurer, discharged Leon-
ard Worthington on June 8, 1978, for statutorily pro-
scribed reasons, I should normally recommend, despite
Respondent Union's contrary plea herein below noted,
that Respondent Union be required to offer Worthington
immediate and full reinstatement to his former position
or, if that position is unavailable, then to some substan-
tially equivalent position without prejudice to his senior-
1317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity and other rights and privileges. Respondent Union
vigorously contends, however, that Worthington's rein-
statement should not be required. That contention must
now be considered.
2. Respondent Union's contention that Worthington
should not be reinstated
Respondent Union presently contends, herein, that,
subsequent to Worthington's termination, it became cogni-
zant of three separate "incidents" wherein Worthington
had either violated the law, disregarded some relevant
collective-bargaining contract's provision, or abused his
delegated authority. Consequently, Respondent Union
suggests that Worthington's reinstatement should not be
directed, since its post-discharge discoveries have re-
vealed these specific instances of predischarge miscon-
duct; union counsel contends that-had these several "in-
cidents" been discovered previously-his client's leader-
ship would, properly, have considered them sufficiently
serious to warrant the business representative's termina-
tion, counsel seeks a Board determination, therefore, that
Worthington's reinstatement would not be warranted.
a. John McDowell
Summoned as Respondent Union's witness, longtime
union member John McDowell testified that, sometime
during 1977, during a period of unemployment which
had lasted slightly less than 2 years, he had received a
telephone call from Worthington who asked whether he
was "qualified" and "available" and "near the top" of
Respondent Union's out-of-work list; that he was, then,
number five on that list, he believed; that Worthington,
during a subsequent telephone call shortly thereafter, had
requested him to come to Respondent Union's hall
where he would receive a sum of money which had been
"collected" as a penalty from a contractor who had
hired some nonunion help; that, pursuant to Worthing-
ton's request, he had driven his pickup truck to Respond-
ent Union's hall, where the designated contractor's rep-
resentative had given him a $500 "penalty" check; that
Worthington, using his car, had then driven with him to
a bank nearby where-with Worthington vouching for
him-he had cashed the contractor's check; that, while
Worthington was driving with him back to Respondent
Union's hall, they had "split" the penalty check proceeds,
with each pocketing $250, and that he [McDowell] had
then driven home-some considerable distance-with his
truck, which had been parked meanwhile near Respond-
ent Union's hall.
In rebuttal, Worthington testified that, sometime in
November 1977, an errant contractor, pursuant to a
grievance which he [Worthington] had filed, had agreed
to tender a penalty payment for a contract violation; that
he had, thereupon, checked Respondent Union's out-of-
work list to determine the first registrant "qualified" to
drive a three-axle water truck, who could have been dis-
patched to fill the position which the contractor had im-
properly filled; that he had then communicated with
McDowell, who indicated that he would have "accept-
ed" such a job referral; that he had thereupon requested
McDowell to "sign the grievance" so that he could qual-
ify to receive the contractor's penalty payment; that the
contractor's check had then been delivered to McDowell
at Respondent Union's hall; that McDowell had declared
he might have some "problem" cashing the check; that
he [Worthington] had then volunteered to drive
McDowell to Respondent Union's bank nearby, where
he [Worthington] would be making his currently due
auto loan payment; that he had declared he would, while
there, vouch for McDowell's check, which the latter
could then cash; that McDowell had cashed his check;
and that he [Worthington] had driven McDowell back to
Respondent Union's hall. Worthington denied, categori-
cally, that he had solicited money, or received money,
from McDowell.
Upon this record, Worthington's version of his No-
vember 1977 encounter with McDowell merits credence,
within my view.
The longtime union member's purported memory,
with respect to whatever happened then, stands revealed
as notably deficient; when provided with documents pre-
sumptively calculated to refresh his recollection, his re-
sponses still reflected uncertainty. He could not initially
recall the "approximate" time period within which he
had received the contractor's penalty check; he could
not recall, without being prompted, that he had signed a
written statement with respect thereto, dated 7 months
before the hearing herein, which Secretary-Treasurer
Traweek had prepared for his signature; when subse-
quently shown his signed statement, he could not con-
firm the correctness of the relevant date set forth therein;
when shown a check imprinted with a contractor's name,
and dated November 7, 1977, wherein he had been desig-
nated as payee, which bore his signature endorsement on
the reverse, and which bore a bank teller's dated receipt
stamp on its face, he could not confirm, until prodded re-
peatedly, that it was the check he had cashed.
When queried with regard to his February 8, 1979,
signed statement, herein noted, McDowell declared that
he had not, prior thereto, discussed his November 1977
relationship with Worthington, with "any persons" con-
nected with Respondent Union; that Traweek had never
described how their purportedly transient, one-on-one,
relationship for 15 months previously had been discov-
ered; that he presumed Respondent Union's secretary-
treasurer had somehow found out "through the grape-
vine," merely; and that his statement had been prepared
for signature at Respondent Union's hall because, basical-
ly, "they" had known "almost everything" set forth
therein beforehand.
Further, McDowell's testimony-that, following his
receipt of the contractor's check, nobody suggested a trip
to the bank; that Worthington and he merely "went for a
ride" during which they "just happened" to pass Worth-
ington's bank; and that his decision to cash the contrac-
tor's check there was a spur-of-the moment decision,
which he reached while Worthington was making his
auto loan payment-strains credulity.
I note, additionally, McDowell's patent failure to prof-
fer testimony, supportive of his crucial charge, with
regard to whether or not Worthington had solicited a
split with respect to his penalty payment receipts; nor
1318
BUILDING MATERIAL & DUMP TRUCK DRIVERS, LOCAL 420
did he testify with respect to where or when such a split
had been suggested, who had first suggested it, or with
respect to whether some consensual understanding, with
respect thereto, had somehow been reached.
Mindful of his testimony's multiple deficiencies, I
cannot find McDowell a credible witness. Worthington's
divergent recollections-proffered straightforwardly,
with persuasive candor-comport, better, with logical
probabilities.
Considered in totality, Respondent Union's testimonial
and documentary proffers, calculated to demonstrate fi-
nally that Worthington-though he may not have solicit-
ed some "settlement splitting" arrangement with
McDowell specifically-had nevertheless knowingly par-
ticipated therein, and had thereby violated Respondent
Union's trust, constitute proffers smacking of contri-
vance, within my view.
In this connection, Respondent Union's counsel further
proffered considerable testimony calculated to demon-
strate: First, that McDowell, since he was not "top man"
on Respondent Union's worklist, had not been properly
selected or designated to receive a contractor's penalty
payment; second, that Respondent Union's previously
publicized policy-which defined certain limited circum-
stances under which penalty payments, received in con-
nection with grievance settlements, might be delivered to
particular registrants on the organization's regularly
maintained worklist-had been flouted when Worthing-
ton solicited McDowell to sign his [Worthington's] pre-
viously filed grievance, and thereby qualify for a con-
tractor's prospective penalty payment.
The record, however, reveals that Respondent Union's
regular dispatch procedures do not, necessarily, dictate
priority referrals limited to the very first registrants on
Respondent Union's relevant worklists; when contrac-
tors request workmen with some specific skill, priority
registrants whose work records reveal their possession of
that particular skill will be referred, regardless of their
possibly subordinate numerical rank on Respondent
Union's list. No showing, whatsoever, has been made
that, when Worthington queried McDowell with respect
to whether he would have "accepted" some theoretically
possible dispatch to drive a three-axle water truck, there
were any priority registrants, listed higher than he was,
who possessed that particular skill. Worthington's deci-
sion to call McDowell, therefore, could hardly be con-
sidered, upon this record, clearly deviant or questionable.
Further, the record, within my view, warrants a deter-
mination that Respondent Union's purportedly defined
policy-pursuant to which worklist registrants, who had
not, themselves, initiated particular grievances, could not be
considered "eligible" claimants for penalty payments
which might be collected from contractors who had
hired workers without utilizing Respondent Union's dis-
patch procedures-had not been consistently followed.
Respondent Union's witness, McDowell, volunteered
that "it was quite a common thing" so far as he knew,
for work registrants like himself to be summoned so that
they could receive penalty payments tendered by con-
tractors who had hired workers without going through
Respondent Union's hiring hall.
Worthington so testified; he declared, further, that de-
viations from Respondent Union's purported policy in
this respect had been knowingly tolerated by Traweek,
several times. And Respondent Union's secretary-treasur-
er, himself, conceded reluctantly that he had found him-
self constrained to reiterate purported union policy, in
this connection, more than once. The record warrants a
determination, within my view, that priority regis-
trants-who had not initiated grievances themselves with
respect to noncomplying contractors-would sometimes
be considered "qualified" claimants, nevertheless, with
respect to penalty payments which might eventually be
received, when they subsequently signed, and thereby
became facially "concerned" with respect to, contract
violation grievances previously filed. Worthington's con-
tacts with McDowell, so far as the record shows, had in-
volved nothing more: Respondent Union's present claim,
that Worthington and McDowell had, thereby, consum-
mated some presumably reprehensible "grift" scheme,
whereby the organization's health and welfare funds had
been deprived of money which they might otherwise
have received, has not, within my view, been persuasive-
ly validated.
Necessarily, therefore, Worthington's course of con-
duct, particularly in this connection, cannot reasonably
be considered sufficiently reprehensible to render him
unfit for further service, with Respondent Union herein.
b. Steven Dollar
Respondent Union's counsel proffers testimonial and
documentary evidence calculated to demonstrate that
Worthington, during April 1978, specifically had, person-
ally, dispatched truckdriver Steven Dollar for available
work, without a proper dispatch "introduction" slip, and
without regard for Respondent Union's regular referral
procedures; further counsel contends that Worthington
had, thereafter, knowingly permitted his fellow business
representative, Charles Tanberg, to provide Dollar with
a falsely "back dated" dispatch slip, so that his referral
and consequent hire, contrary to certain relevant master
labor agreement provisions, might be made to appear le-
gitimate.
With respect to these contentions, Dollar testified that,
following his Monday night, April 17, 1978, layoff from
a "three or four night" job with Moseman Construction,
he reported to Respondent Union's hall the next morn-
ing, April 18, and signed the organization's "A" priority
registration list; that, while he was doing so, Worthing-
ton told him Damon Construction needed a "working
truck driver in concrete" which was his [Dollar's] spe-
cialty; and that Worthington, without giving him a dis-
patch slip told him merely, that Damon Construction
was then "working" at a Long Beach, California, jobsite.
According to Dollar, Worthington told him that-if he
went to work for Damon in Long Beach-he would
have to be given a backdated dispatch slip, since Team-
sters Local 692's business representative, with Long
Beach territorial jurisdiction, was insistent that construc-
tion industry teamsters, dispatched from other locals,
could not be brought down to work on jobsites within
his Local's jurisdiction, consistently with certain master
1319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement provisions, unless they had been dispatched
and hired, by the construction firm concerned, more
than 10 days previously. Dollar testified, further, that he
promptly "went down" to Damon Construction's Long
Beach jobsite; that Damon's Long Beach foreman, how-
ever, told him no teamsters were required there, and sug-
gested he telephone the company's office; that, when he
subsequently did so, he was told to report at the firm's
South Gate, California, yard, within Local 420's territori-
al jurisdiction; that he commenced work for Damon,
thereafter, at the company's Hawthorne, California, job-
site, likewise within Respondent Union's jurisdiction; that
he was "sure" he subsequently received Respondent
Union's dispatch slip, which had been mailed to his
home, and which he had presented at Damon Construc-
tion's office; and that he had worked probably 4 or 5
months for that firm.
Respondent Union's daily "call sheet" and relevant re-
cords, when produced for review, herein, revealed no
relevant April 1978 work order submitted by Damon
Construction, no call for Dollar's referral by name, and
no April 18, 1978, dispatch notation. The union dispatch-
er's regular "Introduction Slip" form book, however, re-
vealed a carbon copy of Dollar's dispatch slip to Damon
Construction, dated Tuesday, April 4, located between
comparable copies of two Monday, April 17 dispatch
slips, which had exhausted those available within the
book's previous page, and copies of several Monday,
April 24 dispatch slips which followed.
The dispatch slip contained notations which purported
to show that Dollar had been called for by name, and
that he had been dispatched on April 4, to a job, location
not specified, scheduled to start at 7 a.m. that very day.
The carbon copy slip, further, reflected a reproduction
of Business Representative Tanberg's signature.
Lydia Rodriguez, Respondent Union's regular dis-
patcher at that time, disclaimed knowledge with respect
to how this slip had been, presumably, completed out of
chronological sequence, or why it had been, presumably,
backdated. She denied dispatching Dollar, or having had
anything to do with his dispatch. Respondent Union's
registrant record card, which purports to reflect Dollar's
successive referrals, contains handwritten entries which
purport to show that his service with Damon Construc-
tion, between April 19 and July 25, 1978, was not "veri-
fied until August 21" of that year. Those entries were
not, apparently, recorded prior to their designated date.
Confronted with Respondent Union's contention that
Dollar had been improperly dispatched, and that his dis-
patch "introduction" slip had been improperly backdat-
ed, Worthington testified that, early one April 1978
morning, Damon Construction's owner, during a tele-
phone call which he [Worthington] took when it was
transferred to him, had requested a truckdriver's dis-
patch, forthwith, qualified to replace a missing plank
truckdriver in connection with a particular job then in
progress which involved "curb and gutter" construction
work; that he had promised to check Respondent
Union's dispatch records and registration list to deter-
mine whether a qualified driver was immediately availa-
ble for referral; that when he did so he had found no
qualified driver currently registered for referral; that he
had, then, fortuitously discovered Dollar, at Respondent
Union's downstairs counter, signing the Union's current
registration list; that Dollar, who reported he had just
been laid off, was known to him, from their previous
contacts, as qualified to handle a plank truck in connec-
tion with curb and gutter construction; that he [Worth-
ington] had, thereupon, reported Damon construction's
request for a qualified driver "right away" which Dollar,
should he be willing, could satisfy; that he had declared
Dollar could be referred, then and there, pursuant to Re-
spondent Union's special "emergency" dispatch proce-
dure, whereby the "first qualified man you can get ahold
of' may be referred, before the Union's regular 4-5 p.m.
daily dispatch hour, when prompt action has been re-
quested to forestall possible jobsite delays; and that some
"conversation" with Dollar had followed, during which
he [Worthington] had mentioned that Dollar's dispatch
slip might have to be backdated.
While a witness, Worthington declared that he knew
Damon Construction's yard was located in South Gate,
within Local 420's jurisdiction; that he knew Damon,
currently, had several jobs running; and that he knew one
jobsite, which Damon was servicing from its South Gate
yard, was located within Teamsters Local 692's jurisdic-
tion. Worthington, so he testified, nevertheless, assumed
that Dollar would be reporting, initially, to Damon's
South Gate yard. He told Dollar that "if" he [Dollar]
was, promptly, assigned to work at Damon's Long Beach
jobsite, Local 692's business representative "might" give
him trouble, because the date on his dispatch slip would
show he had not been in Damon's employ for 10 days,
before his assignment to that firm's Long Beach job loca-
tion. According to Worthington, Dollar was told, fur-
ther, that he [Worthington] considered the Long Beach
business representative's strict construction of the master
agreement's conceded "ten day" tenure requirement-
with respect to Teamsters dispatched from one local,
who have been assigned to jobsites within another local's
jurisdiction-debatable, and that Local 692's business
representative, and he, had "argued" with regard to their
divergent "beliefs" in that connection, previously.
Worthington denied, however, that Dollar was told he
would "back date" the latter's dispatch slip, or have it
backdated, so that he [Dollar] could work at Damon's
Long Beach jobsite. He denied that Dollar had been spe-
cifically directed to Damon's Long Beach project, or any
other jobsite; according to Worthington, he merely gave
Dollar the construction firm's South Gate yard address,
and phone number, whereupon the driver left the hall.
According to Worthington, again he left a note for dis-
patcher Rodriguez, wherein he reported Dollar's dis-
patch to Damon Construction; he could not explain why
Dollar's referral had not been, promptly, recorded by
Respondent Union's dispatcher.
When queried, further, with regard to Dollar's pre-
sumably "back dated" dispatch slip, Worthington testi-
fied that, approximately 1 week, or 4-5 days, after being
dispatched, toward the end of the day, Dollar visited Re-
spondent Union's office to report that he had not yet re-
ceived his dispatch "introduction" slip; that he spoke
with Worthington and Business Representative Tanberg
1320
BUILDING MATERIAL & DUMP TRUCK DRIVERS, LOCAL 420
there; that Business Representative Tanberg, who checked
the dispatcher's records, could not locate any copy or
copies of such a slip, for him, within Respondent Union's
"Introduction Slip" book; and that Tanberg, when told
that Dollar had commenced work "about a week" previ-
ously, thereupon prepared the requisite slip with "just an
approximate" date. Worthington denied that he had re-
quested Tanberg to backdate the slip; that he had told
Tanberg what date to enter thereon; or that he had,
even, seen the slip in question.
Upon this record, which I have carefully reviewed
with due regard for the facially discrepant recollections
of Steven Dollar and Worthington, I conclude-consist-
ently with whatever "reasonable probabilities" their syn-
thesized testimonial recitals, conjoined with Respondent
Union's documentary records, may suggest-that Worth-
ington's course of conduct, with reference to Dollar's
April 18 dispatch, reflected several deviations from Re-
spondent's routine referral procedure, but that his con-
duct, considered in context, did not reflect deviations
sufficiently serious to warrant this Board's determination
that he should not be reinstated.
More particularly, I have concluded that Dollar's se-
lection and designation for prompt "emergency" dis-
patch, pursuant to Damon Construction's purportedly
urgent request for a truckdriver with certain specific
qualifications, did not involve a contractually or statutor-
ily proscribed "backdoor" referral.
Worthington's testimony that Damon's owner had,
with purported urgency, requested some qualified driv-
er's prompt dispatch stands, herein, without contradic-
tion. His testimony, further, that Dollar had been offered
referral, following Damon's request, because he was
qualified; because he was immediately available; and be-
cause his dispatch to satisfy the designated contractor's
presumptively urgent request for a prompt referral, without
regard for his subordinate registration on Respondent
Union's April 1978 out-of-work list, could be considered
permissible, consistently with Respondent Union's con-
sensually allowable dispatch procedure for "emergency"
situations, has not been, within my view, persuasively
challenged.
While a witness, Dollar was shown a previously
signed sworn statement, during cross-examination, for the
purpose of refreshing his recollection that he had signed
Respondent Union's registration record, on April 18,
before Worthington offered him referral to Damon Con-
struction; he conceded that his recollection had been re-
freshed, and that he had done so. Subsequently, I permit-
ted Respondent Union's counsel to present Dollar with
the same statement, during redirect examination, for the
purpose of similarly refreshing his recollection with re-
spect to whether he had seen and spoken with Respond-
ent Union's dispatcher, Rodriguez, directly following his
out-of-work registration. The witness professed no cur-
rent recollection, in this regard, but conceded that decla-
rations, to that effect, within his previously sworn state-
ment, represented his past recollection recorded.
Upon this record, Respondent Union's counsel present-
ly contends that Worthington's testimony-generally to
the effect that he, himself, dispatched Dollar without a
contemporaneously prepared "introduction" slip because,
so far as he could tell, Rodriguez was not immediately
"available" to process the driver's referral in conformity
with Respondent Union's routine dispatch procedure,
and because he [Worthington] did not "know" where she
was-should merit no credence. Further, counsel sug-
gests that Worthington's conceded failure to search for or
locate Rodriguez so that she could handle Dollar's dis-
patch, and his conceded failure, alternatively, to refer the
truckdriver to Respondent Union's dispatcher for subse-
quent routine processing, coupled with his concurrent
failure, purportedly through oversight, to request help
from "someone in the office" who could have handled
the dispatcher's required paper work connected with
Dollar's referral, should dictate a conclusion that he de-
liberately pursued a surreptitious course calculated to
bypass Respondent Union's contractually mandated and
well-settled dispatch procedures.
I have not been persuaded. The record, considered in
totality, warrants determinations, which I make, that
Secretary-Treasurer Traweek did not really run a con-
sistently taut ship, wherein dispatcher Rodriguez was
supposed to function strictly in conformance with Re-
spondent Union's publicly proclaimed dispatch proce-
dures; that Respondent Union's dispatcher and business
representatives have sometimes been required to make
"judgment calls" when summoning presumptively quali-
fied registrants for dispatch regardless of their nominal
registration priorities; that several union business repre-
sentatives other than Worthington have sometimes re-
viewed registration records and dispatched registrants,
within their discretion, pursuant to contractor's requests:
and that their conduct, in that regard though it may
sometimes have been questioned, has nevertheless been
tolerated. Traweek's testimony, that business representa-
tives who concerned themselves with Respondent
Union's dispatch functions were reprimanded and threat-
ened with discharge merits no credence. And Dollar's
proflered witness chair recitals-considered in conjunc-
tion with his purported past recollection recorded-fails
to demonstrate persuasively, within my view, that
Worthington's course of conduct, with respect to his re-
ferral, really reflected a significant or reprehensible devi-
ation from Respondent Union's standard dispatch proce-
dures.
Following the General Counsel's proffer of Worthing-
ton's rebuttal testimony, particularly with respect to Dol-
lar's purportedly questionable dispatch, Respondent
Union's counsel requested me to receive the driver's pre-
viously produced and properly authenticated prehearing
statement, for the present record, and then consider
whether his purported recollections, set forth therein,
significantly contradicted Worthington's testimonial re-
citals. However, I rejected counsel's suggestion that Dol-
lar's sworn prehearing statement, standing alone, without
his testimonial recapitulation, might properly be given
probative "evidentiary" weight, so far as it might contra-
dict Worthington's witness chair declarations.
In that connection, I suggested, alternatively, that-
should a post-hearing review of Dollar's statement, in
camera, which I would be willing to undertake, reveal
contradictions with respect to Worthington's testimonial
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recitals, never previously mentioned, but sufficiently sig-
nificant to impeach his rebuttal testimony regarding Dol-
lar's dispatch-the record could be reopened, so that the
driver could be recalled, queried directly, and cross-ex-
amined, with respect thereto. Respondent Union's coun-
sel and the General Counsel's representative stipulated
their readiness to abide by my post-hearing determination
with respect to whether Dollar's sworn statement does,
or does not, contain factual recitals contradictory of
Worthington's testimony, which would warrant a record
reopening.
I have reviewed the driver's statement. It contains
statements with respect to several matters which, should
they be testimonially recapitulated, would tend to con-
tradict Worthington's witness chair narrative, with re-
spect to several, collaterally relevant, details connected
with his [Dollar's] dispatch. However, the driver's sworn
statement likewise contains factual declarations with re-
spect thereto which deviate materially from, or contra-
dict, his own witness chair recitals herein. On balance,
therefore, I am satisfied that-should Dollar be recalled,
and provide testimony, consistent in all respects with his
sworn prehearing statement-such testimony, considered
in totality, would raise new questions with regard to
Dollar's purported recollections; it would not, within my
view, significantly impeach Worthington's credibility, or
dictate his testimony's rejection. Thus, no reopening of
the record, for the purpose of questioning Dollar further,
would, within my view, be warranted.
Upon this record, Worthington's course of conduct
with respect to Dollar's referral, within my view, cannot
reasonably be considered a contractually proscribed
"back door" dispatch, which would merit Board stric-
ture. Compare International Association of Bridge, Struc-
tural and Ornamental Iron Workers, Local No. 433 (The
Associated General Contractors of California, Inc.), 228
NLRB 1420 (1973), enfd. 600 F.2d 770 (9th Cir. 1979).
Consistently with Worthington's testimony, I have found
that Dollar's referral to Damon Construction was, so far
as Worthington knew, keyed to a particular "emergen-
cy" situation. See ibid, 228 NLRB 1420 at 1423, 1437. It
did not, so far as the present record shows, reflect
Worthington's commitment to some "systematic and con-
tinuous pattern of abuse" whereby job referral "patron-
age" might be arbitrarily, capriciously, or unfairly dis-
pensed, and whereby loyalties toward Respondent Union
or particular business representatives, consequent there-
on, might be, consciously and deliberately, encouraged.
Id., 600 F.2d 770 at 776-777. Worthington's conduct,
with respect to Dollar's dispatch, therefore, did not,
within my view, render him unfit for further service in
Respondent Union's hire; this Board's refusal to direct
his reinstatement now would not be warranted.
With respect to Respondent Union's related contention
that Worthington should be denied reinstatement because
of Secretary-Treasurer Traweek's discovery, subsequent
to the business representative's termination, that Dollar's
dispatch slip had been backdated, little need be said. I
have credited Worthington's denial that he said he
would have to give Dollar a backdated slip so that he
could perform services at Damon's Long Beach jobsite
without being challenged by Local 692's business repre-
sentative. The record rather warrants a determination,
which I have made, that Worthington merely said the
driver might find himself challenged should Damon's
management, following his referral, send him directly to
work in Long Beach. Dollar, however, was not sent di-
rectly to Long Beach; his services, for some never speci-
fied period, were confined to Damon Construction's
Hawthorne, California, jobsite within Local 420's juris-
diction. Thus, when he visited Respondent Union's hall
sometime later, to collect the dispatch slip which, he had
not yet received, his presumptive "need" for a signifi-
cantly backdated slip had, for practical purposes, been
minimized, if not completely eliminated. And the fact
that he was, nevertheless, given such a backdated "intro-
duction" slip, by Tanberg, rather than Worthington,
cannot reasonably be held against the latter, within my
view. Worthington's tacit, presumptively knowing, ac-
quiescence when Tanberg dated the document, though
perhaps subject to criticism, worked no fraud; in fine,
Respondent Union's dispatch procedures were not signifi-
cantly flouted thereby. And since the dispatch slip's prep-
aration, despite its patent lack of regularity, had neither
pernicious nor deleterious consequences, Worthington's
passive connection therewith should not, within my
view, disqualify him from reinstatement.
c. Guy Tedesco
Early in May 1978, 1 find, Worthington received a
telephone call from the vice president of Moulder Bros.,
landscape contractors. Worthington was solicited to pro-
vide the firm with "a man that had all around landscape
ability, a genuine landscaper" since they were then doing
landscape work within a Whittier Narrows park.
Worthington was told, so his credible testimony
shows, that Moulder Bros. had a two-axle "flat rack"
truck, a small tractor, a hydromulcher, and a two-axle
water truck, which were being used on the project.
From a previous contact, Worthington knew Guy
Tedesco as a Local 420 member and qualified landscape
worker; his testimony warrants a determination, which I
make, that Tedesco was then Respondent Union's only
qualified "landscaper" registered for possible dispatch.
The business representative telephoned Tedesco late in
the afternoon; the landscape worker was asked whether
he wanted a job. When Tedesco replied affirmatively,
Worthington requested him to come to Respondent
Union's office forthwith.
With respect to what happened thereafter Tedesco tes-
tified that, Worthington asked him whether he could
drive a water truck; that he replied negatively; that
Worthington then went with him to Moulder Bros. job-
site; that the firm's water truck was not there; that both
men returned to Respondent Union's hall; that Worthing-
ton then gave him a verbal referral, without a dispatch
slip; that, when he [Tedesco] reported to the jobsite the
next day, he was hired to drive the contractor's water
truck; that, when this case was heard, he was still work-
ing for Moulder Bros. while performing a variety of
jobs. When asked why Worthington had visited the con-
tractor's jobsite with him, Tedesco claimed that Worth-
ington wanted to show him where the water truck was,
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BUILDING MATERIAL & DUMP TRUCK DRIVERS, LOCAL 420
and how to drive it; he conceded, however, that the
water truck had not been located during their visit.
Summoned in rebuttal, Worthington corroborated
most of Tedesco's testimonial proffers. He denied, how-
ever, that he had accompanied the landscape worker to
Moulder Bros. jobsite so that he could show him
(Tedesco) how to drive a water truck.
According to Worthington, the contractor's prior ref-
erence to a water truck, on the Whittier Narrows Park
jobsite, had been merely "incidentally" proffered, during
his description of the equipment which would be used on
the project in question.
Worthington declared, rather, that he had waited at
Respondent Union's office for Tedesco and had driven
out with him merely to show him the jobsite's location,
since it was located within a cul-de-sac which would
have been hard to find. Worthington conceded that he
had not given Tedesco a dispatch "introduction" slip,
but declared that he had reported the landscape worker's
referral, with a scratch pad note which had been left on
dispatcher Rodriguez' desk. According to Worthington,
this was considered "normal" procedure, when Respond-
ent Union's business representatives handled referrals;
Rodriguez, so Worthington testified, would then make
her required record notations the next day, and mail the
dispatched registrant's required clearance.
Respondent's records, however, contain no notational
references with respect to Tedesco's May 1978 referral
or his Moulder Bros. service.
With matters in this posture, Worthington's proffered
recollections, relative to Tedesco's referral, within my
view, merit credence. Worthington, though he conceded
some memory lapses, testified generally with candor; the
conceded fact that Respondent Union's registration and
dispatch records fail to reflect Tedesco's referral cannot,
standing alone, impugn his witness chair declaration,
which I credit, that a timely, but less-than-formal report,
with respect thereto, had been left on dispatcher Rodri-
guez' desk.
Respondent Union's counsel contends, substantially,
that Tedesco's dispatch-which clearly bypassed that or-
ganization's regular referral procedure-reflected Worth-
ington's predisposition to deviant behavior, and should
be considered sufficient justification for this Board's re-
fusal to direct his reinstatement. However, that conten-
tion carries no persuasive thrust. Though Worthington's
course of dealing with Moulder Bros., and subsequently
with Tedesco, might well be considered reflective of
some departure from Respondent Union's proclaimed
norms, determinations, nevertheless, seem warranted that
his conduct, under the special circumstances presented,
was neither arbitrary, capricious, nor calculated to sub-
vert Respondent Union's regular dispatch procedures
generally. Clearly, his treatment of Tedesco's referral
cannot, reasonably, be considered derived from selfish
considerations.
No record showing whatsoever has been made herein
that Worthington's referral of Tedesco-for a position
which, so he [Worthington] had been told, would require
the landscape worker's special skills-was consummated
in bad faith, or for some invidious reason. Considered in
context, it should not be deemed, within my view, so
egregious as to warrant this Board's determination to
withhold its conventional reinstatement remedy.
3. Conclusion
Consistently with the General Counsel's contentions, I
find the record, herein, sufficient to warrant determina-
tions that Worthington shared no special relationship
with McDowell, Dollar, or Tedesco; that his dealings
with them reflected no predisposition to "break" or
"bend" Respondent Union's rules, with respect to griev-
ance settlements or dispatch, for suspect reasons; and
that, when he dispatched Dollar and Tedesco, Worthing-
ton neither solicited nor derived any quid pro quo, there-
from. With matters in this posture, my recommendation
that Respondent Union should be required to offer
Worthington reinstatement will be reaffirmed.
B. Backpay
In addition, Worthington should be made whole for
any loss of earnings which he may have suffered, by
reason of the discrimination practiced against him, by the
payment to him of money equal to the sum which he
normally would have earned, absent his unlawful dis-
charge, during the period from the date of that discharge
to the date on which Respondent Union offers him rein-
statement, less his net earnings, if any, during the said
period. Whatever backpay Worthington may be entitled
to claim should be computed separately for each calen-
dar quarter, pursuant to the formula the Board currently
uses. F. WU Woolworth Company, 90 NLRB 289 (1950).
Interest thereon shall be computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977); see, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962), in this connection.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act I hereby issue, the following recommended:
ORDER '
The Respondent, Building Material & Dump Truck
Drivers, Local Union No. 420, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, El Monte, California, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Discharging employees because they have provided
statements to Board representatives, or given testimony
in connection with pending Board proceedings.
(b) Interfering with, restraining, or coercing employees
in any like or related manner with respect to their exer-
cise of statutorily guaranteed rights.
2. Take the following affirmative action, which is nec-
essary to effectuate the policies of the Act, as amended:
(a) Offer Leonard Worthington immediate and full re-
instatement to his former position or, if that position no
I In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority and other rights and privi-
leges, and make him whole for any loss of earnings
which he may have sustained by reason of the discrimi-
nation against him, in the manner set forth within the
Remedy section of this Decision.
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security records, timecards, per-
sonnel records and reports, and all other records relevant
and necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its El Monte, California, office, copies of
the attached notice marked "Appendix," and comply
with the commitments set forth therein.2 Copies of the
notice, on forms provided by the Regional Director for
Region 21, shall be posted immediately upon their re-
ceipt thereof, after being duly signed by Respondent
Union's representative. When posted, they shall remain
posted for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent Union has taken to comply herewith.
2 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1324