Neilson Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1980

249 N.L.R.B. 46 (N.L.R.B. 1980)

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Truck Drivers, Warehousemen & Helpers
Union, Local 980, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Neilson Freight Lines,
Inc., et al.) and Alfred A. Andrade. Case 20-
CB-4799
April 25, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 24, 1979, Administrative Law
Judge Jerrold H. Shapiro issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed cross-exceptions and a sup-
porting brief. The General Counsel filed an an-
swering brief to Respondent's cross-exceptions.
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,' and conclusions of the Administrative Law
I The Administrative Law Judge found that Respondent's reasons for
Finding employee Andrade were without substance, and that Secretary-
Treasurer Campbell, who initiated the disciplinary action, was motivated
by his personal animosity toward Andrade. The Administrative Law
Judge concluded, however, that the fine did not violate Sec. 8(bXIXA)
of the Act because the evidence failed to establish that Campbell's ani-
mosity was based, in whole or in part, upon a belief that Andrade intend-
ed to oppose Campbell's reelection. The General Counsel excepts, con-
lealding that the Administrative Law Judge erred in requiring a showing
that Andrade's intra-union activity in opposition to Campbell's adminis-
trative included an intention to declare his candidacy for Campbell's
office. The General Counsel argues that Andrade engaged in protected
activity when he publicly criticized Campbell's management of the
Union, and that Campbell's hostility resulted from Andrade's protected
conduct. Respondent, on the other hand, excepts to the Administrative
Law Judge's failure to find that one of the reasons for Andrade's fine was
his improper solicitation of work. Although we agree with the General
Counsel's contention that a union member has a protected right to criti-
cize a union official's administration, we also find merit in Respondent's
contention that the charges against Andrade included improper solicita-
tion of work. Andrade's citation charged him with "ignoring the hiring
hall procedures of the Local Freight Agreement." and the solicitation
issue was discussed at Andrade's hearing before Respondent's executive
board. We disagree with the Administrative Law Judge's observation
:hat Campbell teatified that solicitation was not one of the reasons which
prompted the citation For the record is clear that Campbell's statement
that "solicitation had nothing to do with it, [tlhat was another matter"
was made in context of a discussion concerning his reasons for suspecting
that Andrade worked without proper clearance, an additional charge sep-
arate and distinct from the solicitation allegation. Moreover, the evidence
shows that Andrade did in fact apply to Neilson Freight Lines for local
freight work, and that Campbell was aware of Andrade's application
when he filed the citation. We find, therefore, that solicitation of work
was one of the bases for Andrade's fine, and that this charge was not
groundless. Furthermore, the evidence does not establish that Andrade
was fined for his criticism of Campbell's administration. In light of the
above findings, we deem it unnecessary to rely on Shattuck Denn Mining
Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466 (9th Cir. 1966),
249 NLRB No. 6
Judge and to adopt his recommended Order, as
modified herein.
We disagree with the Administrative Law
Judge's conclusion that Respondent violated Sec-
tion 8(b)(1)(A) of the Act by notifying Andrade
that his fine was payable before any further mem-
bership dues would be accpeted. We find Interna-
tional Union of Elevator Constructors Local Union
No. 8, AFL-CIO (San Francisco Elevator Co.),2 on
which the Administrative Law Judge relied, to be
distinguishable in view of the fact that Andrade
was not working for an employer which was party
to a collective-bargaining agreement containing a
union-security clause.3 Furthermore, Respondent's
Local Freight Agreement contains an exclusive
hiring hall procedure which requires Respondent
to refer registrants without regard to union mem-
bership, and the evidence does not show that Re-
spondent violated this requirement or threatened to
do so. We are therefore unable to find, in the ab-
sence of a union-security clause, that Respondent's
notice threatened to interfere with Andrade's em-
ployment. We shall modify the recommended
Order accordingly.
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,
General Truck Drivers, Warehousemen & Helpers
Union, Local 980, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Petaluma and Santa Rosa, California,
its officers, agents, and representatives, shall take
the action set forth in the said recommended
Order, as so modified:
1. Delete paragraph l(b) and reletter the follow-
ing paragraph accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
or the Administrative Law Judge's finding that the fine was motivated by
Campbell's personal animosity toward Andrade.
2 243 NLRB No, 10 (1979).
3 Member Truesdale agrees with his colleagues that, in the circum-
stances here, Respondent did not violate the Act by informing Andrade it
would not accept further membership dues from him until he paid his
fine. However, Member Truesdale's agreement on this point does not in-
dicate that he subscribes to his colleagues' suggestion that the touchstone
for finding a violation in such cases is whether or not the relevant collec-
tive-bargaining agreement contains a union-security clause. See, general-
ly, Member Truesdale's dissent in the Order denying Respondent's
motion for reconsideration in San Francisco Elevator Co. (cited above),
published at 248 NLRB No, 118 (1980).
GENERAL TRUCK DRIVERS LOCAL 980 47
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT attempt to cause Neilson
Freight Lines, Inc., to discriminate against any
employee in violation of Section 8(a)(3) of the
National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner
restrain or coerce employees or members in
the exercise of the rights guaranteed them in
Section 7 of the Act.
GENERAL TRUCK DRIVERS, WARE-
HOUSEMEN & HELPERS UNION,
LOCAL 980, INTERNATIONAL BROTH-
ERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELP-
ERS OF AMERICA
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case, held July 3, 1979,' is based upon an
unfair labor practice charge filed February 5 by Alfred
Andrade against General Truck Drivers, Warehousemen
& Helpers Union, Local 980, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called Respondent, and upon a com-
plaint issued March 30 by the General Counsel of the
National Labor Relations Board. The complaint, which
was amended at the hearing, alleges that Respondent has
engaged in unfair labor practices within the meaning of
Section 8(b)(2) and (1)(A) of the National Labor Rela-
tions Act, as amended, herein called the Act. Respondent
filed an answer which it amended at the hearing denying
the commission of the alleged unfair labor practices. 2
Upon the entire record,3 from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs filed by the Charging Party and the
General Counsel,4 I make the following:
All dates herein refer to 1979 unless stated otherwise.
2 Respondent admits it is a labor organization within the meaning of
Sec. 2(5) of the Act. Respondent also admits that the two employers in-
volved in this case, Nielsen Freight Lines, Inc., and Market Wholesale
Grocery Company, are employers engaged in commerce within the
meaning of Sec. 2(6) and (7) of the Act and meet the National Labor Re-
lations Board's applicable discretionary jurisdictional standard. Accord-
ingly, I find it will effectuate the purposes of the Act to assert jurisdic-
tion herein.
I The parties' post-hearing stipulation, dated July 27. 1979. has been
received into evidence as Jt. Exh. I.
4 I have not considered nor read Respondent's post-hearing brief be-
cause it was not timely filed. Respondent was granted an extension of
time for filing its brief. Nonetheless, its brief was not filed until August
15, 1979, 2 days after the due date, accompanied by an explanation that
the brief was delayed "due to an unexpected emergency.' The General
Counsel and the Charging Party have requested that I strike Respond-
ent's brief because it was not timely filed. Under the circumstances and in
FINDINGS OF FACT
I. THE QUESTIONS PRESENTED FOR DECISION
The amended complaint alleges that Respondent vio-
lated Section 8(b)(1)(A) of the Act by imposing a $250
fine upon Alfred Andrade "because of Andrade's in-
traunion sympathies and activities in opposition to the in-
cumbent secretary-treasurer of Respondent, James Camp-
bell," and by advising Andrade that Respondent would
not accept his membership dues until he paid this fine.
The amended complaint also alleges that Respondent
violated Section 8(b)(2) and (I)(A) of the Act by causing
Nielsen Freight Lines and Market Wholesale Grocery to
refuse to employ Andrade for reasons proscribed by the
Act and by attempting to cause Nielsen Freight Lines to
terminate Andrade's employment for reasons proscribed
by the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Charging Party, Alfred Andrade, was employed
by Respondent as an organizer and business agent from
January 2, 1978, until October 13, 1978. During this
period he was a member of Respondent. Respondent's
principal official, Secretary-Treasurer James Campbell,
hired Andrade and was his supervisor.
In 1978, when Campbell took his vacation, he assigned
additional duties to Andrade, including the job of admin-
istering the collective-bargaining agreements which
Campbell normally administered. In July 1978, upon
Campbell's return from vacation, he criticized Andrade
for filing certain contractual grievances on behalf of em-
ployees represented by Respondent and for other collec-
tive-bargaining decisions made in Campbell's absence.
Thereafter, Andrade apparently publicly criticized
Campbell's management of Respondent. Campbell con-
fronted Andrade about this. He asked whether Andrade
had told people that Campbell's management of Re-
spondent was "all screwed up" and that Campbell was
"not getting the work out." Andrade acknowledged ex-
pressing those sentiments and stated they were true.
Campbell told Andrade that he did not appreciate his
criticisms. Subsequently, in September 1978, Campbell
told Andrade he was disappointed because Andrade had
not told him the reason why certain business agents were
"plotting against" Campbell and because Andrade criti-
cized Campbell's management of Respondent. Andrade
answered that the business agents were upset with Camp-
bell because of Campbell's refusal to allow them "to take
their trips" and because they had not received a pay
raise in 5 years and that they were criticized of their
health insurance programs. Andrade warned Campbell
that at the election 5 Campbell would be defeated and,
thus, lose his job. Campbell asked who Andrade thought
would defeat him. Andrade stated he thought Business
Agent Charles Green would be a good candidate. Later
view of the motions to strike by the other parties, I have not considered
nor read Respondent's brief and grant the motions that it be excluded
from the record.
a Campbell's position with Respondent was an elected one. The next
election was scheduled for October 1980.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in September, Campbell told Andrade he would have to
terminate his employment due to a lack of money and
explained the reason for the lack of money. By letter
dated September 29, 1978, Campbell notified Andrade
that he found "it necessary to reduce expenditures at this
time" and that "due to the unstable financial condition"
he had decided to terminate Andrade's employment ef-
fective October 13, 1978, and thanked Andrade for his
services.
B. Andrade Registersfor Work on Respondent's Out-
of- Work Lists
Prior to his employment with Respondent, Andrade
had worked since 1970 for various local unions affiliated
with the Teamsters International Union as a business
agent and prior to that had worked 19 years as a truck-
driver. After Respondent terminated him on October 13,
1978, Andrade unsuccessfully attempted to find work as
a union business representative and then looked for work
as a truckdriver. Andrade, who had retained his member-
ship in Respondent, submitted employment applications
to several trucking companies that were under contract
with Respondent, one of whom was Nielsen Freight
Lines, Inc., herein called Nielsen, which had terminals
within Respondent's jurisdiction in Santa Rosa, Ukiah,
and Fort Bragg, California. Nielsen and Respondent at
all times material were parties to a collective-bargaining
agreement, herein called the Local Freight Agreement,
which covered Nielsen's local trucking operations. The
agreement includes an exclusive hiring hall procedure
which, in pertinent part, reads as follows:
ARTICLE 40
HIRING PROCEDURE
Section 2. Exclusive Hiring
(a) Hiring Hall. Whenever an Employer requires
workmen, he shall notify the Local Hiring Hall,
either in writing or by telephone, stating the loca-
tion, starting time, and approximate duration of the
job, the type of work to be performed, and the
number of workmen required. The Employer shall
specify whether the employment in question will be
for a full day or on broken time.
Section 3. Hiring Standard
Upon such receipt of notice, the Local Hiring
Hall shall endeavor to furnish the workmen request-
ed. Selection of applicants for referral to jobs shall
be on a non-discriminatory basis .... Such selec-
tion will be made on the following basis:
(a) The Local Hiring Hall shall maintain a list of
all workmen seeking jobs who have been employed
on the type of work and in the geographical area
covered by the Local Hiring Hall for a period of at
least I year, which list shall hereinafter be called
"List A." The Local Hiring Hall shall maintain a
separate list of all workmen seeking jobs who do
not meet the requirement, which list shall herein-
after be called "List B."
(b) Workmen's names shall be entered on said
lists in the order in which they notify the Local
Hiring Hall of their availability for jobs.
(d) In dispatching workmen, preference shall be
given workmen on List A. Within each list, prefer-
ence shall be given to those whose designations cor-
respond to the type of work involved, in the order
in which their names appear on the list. If there are
not sufficient workmen on List A, whose designa-
tions correspond to the type of work involved, pref-
erence shall be given to other workmen on said list
in the order in which their names appear, and the
same procedure shall be followed with List B
should names of List A be exhausted ...
(e) An employer may call for a workman by
name only:
(I) if the workman is registered on the A list in
the Hiring Hall in the area in which he is to be
employed, and
(2) if the workman requested has worked for
the Employer during the last 6 months, and
(3) if the workman is available for work.
Section 5. Notification
(a) Casual Employees. For casual employees who
work on broken time or day to day basis for various
employers, the Local Hiring Hall shall immediately
supply such help to the Employer upon notice by
the Employer that such casual employees are
needed. In the event such casual help is not immedi-
ately available or the Local Hiring Hall is closed,
the Employer may then hire such casual workers
from any other available source.
(b) Regular Employees. If the Local Hiring Hall
is unable to furnish qualified regular workmen
within, 48 hours after an Employer calls for them,
the Employer shall be free to procure the workmen
from any other source. ....
Pursuant to the hiring procedure set forth in the Local
Freight Agreement, Nielsen's three terminals within Re-
spondent's jurisdiction used Respondent's hiring halls to
employ local truckdrivers. Nielsen's Fort Bragg and
Ukiah terminals hired their local truckdrivers through
the hiring hall maintained by Respondent at its Ukiah
office. The Santa Rosa terminal used the hiring hall
maintained by Respondent in its Santa Rosa office. Re-
spondent's Ukiah and Santa Rosa hiring halls maintained
separate out-of-work lists. Charles Green, the business
agent in charge of the Ukiah office, managed the out-of-
work lists maintained in the Ukiah office. Stella Rivetti, a
dispatcher employed by Respondent, worked full time
GENERAL TRUCK DRIVERS LOCAL 980 49
maintaining the out-of-work list in the Santa Rosa facili-
ty.e
On January 2, Andrade wrote letters requesting that
Respondent place his name on the local freight out-of-
work list maintained in Ukiah and Santa Rosa. By letter
dated January 9, Respondent's secretary-treasurer,
Campbell, informed Andrade that for his name to be
placed on the local freight out-of-work lists he must fill
out a registration card and advised him to come to the
Santa Rosa office for this purpose. Campbell ended the
letter by informing Andrade that he had enclosed a copy
of "the local freight dispatch rules." These rules, a copy
of which were in fact enclosed, were in existence since
1973 and were addressed to "Members Registering For
Local Freight In Sonoma County." 7 In pertinent part
they stated:
A person registering for Local Freight will be
placed on the out-of-work list in the order of regis-
tration. To retain that place on the list, you must re-
register in person or by phone every Monday, or
the first working day of each week. If you fail to
register on the sign up day each week, your name
will be dropped from the list. If you forget to call
or are unavailable, be sure to call the following day
or whenever you are available in order to get back
on the list for the remainder of the week.
Members for local freight will refrain from solic-
iting work under the local freight agreement. Solic-
iting this work is a violation of Hiring Hall Provi-
sion of the Local Freight Agreement.
Remember-You Must Call in and Register the First
Working Day of Each Week To Maintain Your Place
on the List[Emphasis in original.]
On January 15, in response to Campbell's letter, An-
drade visited Respondent's Santa Rosa office. He spoke
to dispatcher Rivetti and filled out and signed a "Regis-
tration for Work Agreement" which all persons seeking
work under the Local Freight Agreement are required
to complete. In signing the "Registration for Work
Agreement," Andrade acknowledged that he had read
the Local Freight Agreement and the posted hiring hall
rules and agreed to comply with them. Andrade testified
that when Rivetti spoke to him on January 15 she did
not indicate he was required to submit copies of his
DOT certificates to Respondent in order to be eligible
for dispatch.8 Rivetti testified that she was not certain
whether on January 15 she spoke to Andrade about
filing "certain documents" with Respondent. When asked
specifically whether she told Andrade on that date the
6In addition to the out-of-work lists for local truckdrivers, the Ukiah
and Santa Rosa hiring facilities maintained other out-of-work lists not rel-
evant to this case.
I The Santa Rosa hiring facility was located in Sonoma County,
whereas the Ukiah hiring facility was located in Mendocino County.
a The term "DOT certificates" as used in this Decision refers to the
United States Department of Transportation Medical Examiner's Certifi-
cate and Certification of Written Examination.
he needed to submit copies of his DOT certificates
before he could be dispatched, Rivetti testified, "I may
have. I don't know if I said it when he registered. Nor-
mally I do but I cannot remember." Based upon my ob-
servation of the demeanor of the witnesses and Rivetti's
lack of memory, I find that, when Andrade registered on
January 15, Rivetti did not indicate that his being dis-
patched for work was conditioned upon his first submit-
ting copies of his DOT certificates. Likewise, Rivetti did
not ask Andrade to submit copies of his DOT certificates
when he spoke to Rivetti the following week, January
22, and asked to have his name placed on the out-of-
work list for local freight drivers which was maintained
at the Santa Rosa office. However, Andrade, who had
secured his Class I license and DOT certificates on Janu-
ary 19, informed Rivetti that he had gotten those docu-
ments. The record is devoid of evidence that prior to
Campbell's letter of February 16, infra, Andrade was
ever informed that Respondent required copies of a reg-
istrant's DOT certificates to be given to Respondent
before dispatching the registrant from the local freight
out-of-work list.
Andrade regularly registered for local freight work on
Respondent's Santa Rosa out-of-work register. He also
registered for local freight work on Respondent's Ukiah
out-of-work register. In this respect, on January 30 he
sent Business Agent Green a letter asking to be placed
on the Ukiah out-of-work list for the month of February.
Green received this letter February 1, at which time he
placed Andrade's name on the out-of-work list. Also on
that date at 5 p.m., as described infra, Andrade personal-
ly visited the Ukiah office and signed the out-of-work
list. During the period from February through May, An-
drade registered on Respondent's local freight out-of-
work list at Ukiah as follows: February 12, 19, and 27;
March 5, 20, and 28; April 2, 9, 16, 23, 30; May 7 and 14.
Andrade did not meet the qualifications for "List A," as
defined by the Local Freight Agreement, hence he was
registered for work on "List B."
C. Andrade Is Employed by Nielsen and Is Cited by
Campbell
In January, Andrade spoke about working for Nielsen
to Robert Soto, Nielsen's vice president of operations.
He informed Soto he had been terminated from his posi-
tion as business agent with Respondent and wanted to
work for Nielsen. Soto asked whether Andrade would
have a problem working out of Respondent's Ukiah
hiring hall, the hiring facility which supplied drivers to
Nielsen's Ukiah and Fort Bragg terminals. Andrade indi-
cated this would not pose any problem and stated he was
a member of Respondent and had the approval to work
in Respondent's jurisdiction from Respondent's Secre-
tary-Treasurer Campbell and Business Agent Charles
Green. Thereafter, on approximately January 24, An-
drade submitted an employment application to Nielsen in
which he applied for work with Nielsen as either a line
or local truckdriver and enclosed copies of his Class I
driver's license and his DOT certificates.
On January 31, Andrade received a phone call at ap-
proximately 7:30 p.m. from Soto, who told Andrade he
needed a local freight driver to work the next day at the
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ukiah terminal and asked whether Andrade wanted the
job. Andrade answered yes. Soto instructed him to
report for work at 7 a.m. on February 1. Andrade fol-
lowed his instruction and worked for Nielsen at its Ukiah
terminal February 1, just for that day, replacing one of
the terminal's senior drivers, Gilson, who was absent
from work.
On February I at approximately 7:30 a.m., Business
Agent Green visited the Ukiah terminal to speak with
Terminal Manager Liddle. Green observed Andrade at
work and, inasmuch as Andrade had not been dispatched
to the job by Green, questioned him about the circum-
stances of his employment. Andrade told Green that
Soto had phoned him at 7:30 p.m. the previous night.
Green said nothing further to Andrade about this matter
and left to speak with Liddle. When Green questioned
Liddle about Andrade's employment, Liddle informed
him that Soto had phoned Andrade to come to work be-
cause Respondent's office was closed. Liddle stated that
another truckdriver, Al Antoni, had previously informed
Liddle he was not available for work. Liddle also stated
that he had known as early as Monday, January 29, or
Tuesday, January 30, that he would need a casual
worker for February 1 and that Antoni was not availa-
ble.
Green, following his conversations with Andrade and
Liddle, phoned Respondent's Secretary-Treasurer Camp-
bell. After discussing the subject which had prompted
his visit to the Ukiah terminal, Green informed Campbell
that Andrade was working at the terminal. Campbell ex-
pressed his surprise and stated that Andrade had not sub-
mitted his DOT certificates to Respondent. Campbell
asked Green to talk to Andrade and Liddle to determine
the circumstances surrounding Andrade's employment.
Green returned to the Ukiah terminal and questioned
both Liddle and Andrade and then phoned Campbell and
advised him that he had been notified by Liddle that
when Liddle discovered he needed a replacement for
Goslin, he had phoned Soto the evening of January 31
and that Soto had told Liddle not to worry, as he had a
man cleared and ready to work at the Ukiah terminal.
Campbell informed Green that he felt someone should
file a grievance against Nielsen for runaround pay.9
Green stated he did not believe such a grievance was
warranted because there was no one signed on the Ukiah
out-of-work register available to take a casual local
driver job on February I other than Antoni, who Liddle
had stated was not available for work.
Later on the morning of February 1, at approximately
II a.m., Antoni visited Respondent's Ukiah office and
signed the out-of-work register for line freight work
only.' ° Green told him that Andrade was working at
Neilson's Ukiah terminal and Liddle had told him Antoni
A grievance for runaround pay refers to a claim by Respondent that
an employer has employed someone in violation of the terms of the
Local Freight Agreement and to remedy this violation Respondent seeks
to have the employer pay the employee who would have gotten dis-
patched to the job if the employer had complied with the agreement.
LO The record reveals that for the week commencing Monday, January
29, the only persons registered on the Ukiah out-of-work list for freight
work were Andrade, whose name was placed on the list February 1, for
line and local freight work, and Antoni, who on February 1 at about 11
a.m. registered only for line work. Andrade was a "List B" and Antoni a
"List A" registrant.
was not available for work that week. Antoni denied he
had said this to Liddle and, in response to Green's ques-
tion, stated he had been available for work that day.
In the meantime, Campbell, after being told by Green
that Soto was the person who had employed Andrade,
phoned Soto and asked for an explanation about An-
drade's employment. Soto told him that he had told his
terminal managers at Ukiah and Santa Rosa that if they
ever needed a casual worker Andrade was cleared and
ready to start work. Soto explained to Campbell that An-
drade had applied for a job and told him it was all right
with Business Agent Green if Nielsen employed him at
Ukiah and that it would cause no problem. Campbell
asked whether Andrade had his DOT certificates and
Class III license. Soto indicated he did not know.
Green, following his conversation with Antoni,
phoned Campbell and advised him that Antoni had told
him that he had been available for work that day and
had not told Liddle anything to the contrary. Campbell
stated he thought Andrade was working for Nielsen
without a proper clearance and, since Antoni had been
available for work, thought that Green should prepare
for Campbell's signature a runaround grievance against
Nielsen seeking pay for Antoni. Campbell also indicated
that it was possible that Andrade had solicited his job
with Nielsen.
Thereafter, at approximately I p.m., Green went to the
Ukiah terminal where he spoke to Liddle in Andrade's
presence. Green informed Liddle that Respondent in-
tended to file a grievance against the company seeking
runaround pay because of Andrade's employment. Liddle
pointed out that the hiring hall was closed when An-
drade was hired. Green replied that Liddle had not
called Antoni, who was available for work, and remind-
ed Liddle that when they had discussed the matter earli-
er that day, Liddle admitted having knowledge several
days prior to February 1 that he would need a casual for
that day; thus Liddle should have called Antoni before
invoking the after-hours clause in the contract. Liddle
stated he was confused when he had talked with Green
earlier and, in fact, had not known he would need a
casual worker until the evening of January 31, when
Goslin asked for the day off. Liddle also stated that he
had not bothered to contact Antoni because Antoni had
previously told him he did not want a I-day dispatch.12
Green reported this conversation to Campbell and there-
after spoke to Goslin to determine whether Liddle's
story was true. Goslin corroborated Liddle. Green noti-
fied Campbell of this either February 2 or early the next
week.
On February 1, when Andrade finished work, Liddle
indicated to him that Nielsen would need him for 2 days
during the week of February 5 and for 2 more days
during the week of February 12. Andrade told Liddle
that if the company needed him to call Respondent.
Shortly after, at approximately 5 p.m., Andrade visited
Respondent's Ukiah office where he signed the out-of-
' Green and Andrade testified about this conversation. Where their
testimony is in conflict, I have credited Green, who impressed me as the
more credible witness.
2' Antoni had in fact told Liddle that he was not interested in -day
jobs.
GENERAL TRUCK DRIVERS LOCAL 980 51
work register and informed Green that Liddle would be
calling Green about employing Andrade during the
weeks of February 5 and February 12. Green indicated
he did not believe this would be possible.
On February 2, Green visited the Ukiah terminal and
asked Liddle if he wanted to employ Andrade again.
Liddle stated he would probably need him on either Feb-
ruary 15 or 16. Green and Liddle at this point discussed
whether or not Liddle was entitled to call Andrade by
name even though he was not registered on "List A."
The conversation ended with Green stating he would
check into the matter.
Later during February 2, Green informed Campbell
that Liddle had indicated he would need a casual during
the week of February 5 and February 12 and wanted to
know if Andrade could work for him on those occasions.
Campbell stated that Liddle should know better than to
make such a request because Andrade was not registered
on "List A"; thus, Liddle could not call for him by
name. Also, Campbell indicated that Andrade had taken
an illegal dispatch in working for Nielsen on February 1
so would not in any event be eligible for further referral
to Nielsen.
That evening Liddle phoned Green at his home and
asked whether Andrade would be able to work for Niel-
sen as they had previously discussed. Green answered
no. He explained to Liddle that Andrade was not regis-
tered on "List A." Liddle stated that Andrade was con-
tending he was a "List A" registrant and was eligible for
a call back. Green stated Respondent felt Andrade was
not a "List A" registrant. Liddle stated he would let
Soto and Campbell discuss the matter further.
On approximately February 8 or 9, Campbell met
Liddle at Nielsen's Santa Rosa terminal and asked him
why the company had hired Andrade. Liddle replied
that in January Soto had told him if Nielsen needed a
casual driver in either Ukiah or Santa Rosa to let Soto
know as he had a man who was cleared and ready to go
to work; so, on January 31, when he needed a casual for
February 1, he had notified Soto, who contacted An-
drade. Campbell also asked whether Liddle knew prior
to the evening of January 31 that Goslin would not be
available for work on February I and, if so, why had
Liddle not phoned Respondent's Ukiah hiring hall for a
casual. Liddle replied in effect that he did not know until
the evening of January 31 that Goslin wanted to be off
from work February 1, if it could be arranged, and it
was at that point that he had phoned Soto, who contact-
ed Andrade.
On February 2, Campbell filed a contractual grievance
against Nielsen for employing Andrade and cited An-
drade for violating Respondent's bylaws and constitu-
tion.
The grievance dated February 2, signed by Campbell,
alleges that Nielsen hired Andrade to work at its Ukiah
terminal without "calling the hiring hall" and further al-
leges that, when Campbell at the first step of the griev-
ance procedure discussed this grievance with Soto, Soto
stated Andrade "told them it was OK" to do this. As a
remedy the grievance asked that Nielsen pay Al Antoni
for the work done by Andrade.' 3
The citation, dated February 2 and signed by Camp-
bell, was addressed to Andrade and informed him as fol-
lows:
You are hereby cited to appear before the Execu-
tive Board of [Respondent] on Monday, February
12, 1979, at 8:30 p.m.
Specifically, you are charged with violation of
[Respondent's bylaws and constitution] for ignoring
the hiring hall procedures of the Local Freight
Agreement and going to work for Nielsen Freight
Lines without proper clearance.
Upon receipt of Campbell's citation, Andrade phoned
Green on February 3 and asked what was going on, as
he had worked pursuant to the terms of the Local
Freight Agreement and now Campbell had cited him.
Green answered that he thought Andrade would never
work in Respondent's jurisdiction.
On February 5, Andrade filed the instant unfair labor
practice charge alleging that "since on or about January
31, 1979 and continuing to date [Respondent] has caused
Nielsen Freight Lines to discriminate against Al Andrade
by causing his termination for reasons other than his fail-
ure to pay the required dues and fees required by the
collective-bargaining agreement as a condition of em-
ployment."
On February 12, Andrade, as scheduled, was tried by
Respondent's executive board. In support of his citation,
Campbell at that hearing testified in substance that An-
drade had acted improperly in the following respects: (I)
Andrade had solicited his job by submitting a job appli-
cation;14 (2) Andrade was not eligible for dispatch be-
cause Respondent did not have copies of his DOT certi-
ficates; (3) Andrade was registerd on "List B," hence
could not be called for by name; and (4) Andrade had
acted in collusion with Soto, who had called him at
home.
On February 13, Green phoned Campbell and they
discussed the status of Antoni. Green questioned whether
Antoni, who until July 1978 had not worked as a truck-
driver for several years,' s was a "List A" or "List B"
registrant. Campbell, relying upon the advice of Re-
spondent's attorney which had been given in a compara-
ble situation, explained that Antoni was a "List A" regis-
trant under the terms of the Local Freight Agreement.
Also during this conversation Campbell, referring to An-
s The grievance was heard by a local bipartite employer-union com-
mittee during late February, at which time Campbell amended his claim
for relief to name Jim Blair as the worker entitled to runaround pay.
Blair on February 1 was a senior driver employed by Nielsen at its Santa
Rosa terminal who was on layoff. The local bipartite committee dead-
locked over the grievance which was then taken to the next step of the
grievance procedure, at which point Respondent's claim was allowed and
Nielsen paid Blair the same amount of pay which Andrade had earned on
February 1.
t" Andrade admitted to the executive board that if he had filed his ap-
plication at a Nielsen terminal located within Respondent's jurisdiction he
would have been soliciting work, but since he did not, his conduct could
not be construed as impermissible solicitation.
' Antoni for several years until July 1978 was employed as a terminal
manager.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drade's testimony before Respondent's executive board
on February 12, stated that Andrade's description of the
way Green had been operating the Ukiah hall had made
Green look pretty bad and that Campbell had been sur-
prised by Andrade's criticism of Green. Campbell then
asked whether it was true that Green intended to run for
secretary-treasurer against Campbell in the next election.
Green answered in the negative. Campbell stated that
Andrade at one time had told him that he (Campbell)
would lose his job as secretary-treasurer because Green
was going to run against him. In view of this, Campbell
stated that he was surprised that Andrade was critical of
Green, but that he had heard through the "grapevine"
that Andrade now intended to take "everyone on ," in-
cluding Green.
On February 16, Campbell wrote Andrade that he had
been found guilty by Respondent's executive board as
charged. The letter reads as follows:
As a result of your citation to appear before the
Executive Board of this Local Union on February
12, 1979, you were found guilty of the charge of
violation of the Local Union By-Laws under Sec-
tion 19, paragraphs 1, 2 and 3, and Section 29, and
Article XIX of the International Constitution. Spe-
cifically, you ignored the hiring hall procedures of
the Local Freight Agreement and going to work
for Nielsen Freight Lines at The Ukiah terminal
without obtaining the proper clearances.
The decision of the Board was to fine you the
sum of $250.00 with $100.00 to be suspended on
condition that you have no further violations of the
Labor Agreement, Local Union By-Laws or the In-
ternational Constitution for the period from Febru-
ary 13, 1979 and ending August 13, 1980.
If you fail to follow the By-laws of this Local
Union or the International Constitution during the
probation period stated above, you will be immedi-
ately subject to the $100.00 suspended fine.
The $150.00 fine is to be paid before any further
dues will be accepted.
Should you wish to appeal the decision of the
Executive Board of this Local, such appeal must be
submitted in accordance with Article XIX of the
International Constitution.
Upon receipt of this letter, Andrade appealed the execu-
tive board's decision to Teamsters Joint Council No. 7
which, by letter dated March 8, informed him that he
was obligated to pay his $150 fine inasmuch as article 19,
section 9(a) of Respondent's international constitution
reads:
If the penalty is by way of fine, then the same must
be paid pending an appeal, if one is taken, unless the
General President upon request waives payment
pending appeal.
Accordingly, on March 12, Andrade paid the $150 fine.
The Teamsters Joint Council No. 7 on April 4, after
holding a hearing concerning the matter of Andrade's
fine, upheld the verdict of Respondent's executive board.
Andrade has appealed this decision to the International
Union's general executive board.
On February 16, Campbell wrote Andrade that "per
two previous verbal reminders, DOT certification cards
are required before you can be dispatched as a driver.
We have no record of your DOT certification, therefore
we are unable to dispatch you to any Freight Terminal
as a driver until such are received" and advised Camp-
bell that "This is a requirement of all who register on
Local Freight." Andrade replied by letter to Campbell
dated February 23 wherein he stated in pertinent part
that neither Campbell nor anyone from Campbell's office
had requested a copy of Andrade's DOT certificates
prior to Rivetti's request when Andrade had phoned the
Santa Rosa office February 20 to register on the out-of-
work register. Andrade also stated that, although he dis-
agreed with this requirement, he had enclosed a photo of
his "DOT requirements."' 6
C. Andrade's Dispatch to Market Wholesale Grocery
Is Canceled
Market Wholesale Grocery Company is located in
Santa Rosa, California, and during the time material
herein was a party to a collective-bargaining agreement
with Respondent which was scheduled to terminate June
1. This contract, unlike Respondent's contract with Niel-
sen, did not include a hiring hall provision. But, as a
matter of convenience, Market Wholesale used Respond-
ent's Santa Rosa hiring facility to employ warehousemen.
During the week of March 12, Andrade filed an employ-
ment application with Market Wholesale.
On March 19, at approximately 2 p.m., Market Whole-
sale's warehouse superintendent, Dick Armburst, asked
Respondent's hiring hall dispatcher, Stella Rivetti to dis-
patch two warehousemen to Market Wholesale for the
next day at 7 a.m. Rivetti asked whether Armburst
wanted her to dispatch any particular persons. Armburst
requested Andrade, who had never worked for the com-
pany previously, and Gus Kouninos, who had worked
for the company previously. Rivetti indicated that she
was not able to contact Kouninos to determine whether
he would be available as he was working that day for
another employer and, with respect to Andrade, asked if
there was any reason Armburst was asking for him by
name, since he had never worked for Market Wholesale
previously. Armburst stated that Andrade had submitted
an employment application and they were going to try
him out. Rivetti at approximately 2:30 p.m. notified
Crowley and Andrade, both of whom, were registered
on Respondent's out-of-work list, to report for work at
Market Wholesale the next morning at 7 a.m.
On March 19, shortly after learning that Market
Wholesale had asked for Andrade to be dispatched for
work, Respondent's Secretary-Treasurer Campbell
phoned John Biaggi, Market Wholesale's general man-
ager, to determine when the parties would commence
their negotiations for a new collective-bargaining agree-
'6 There is a dispute about whether Andrade enclosed a copy of his
DOT certificates with this letter or whether they were not forwarded to
Respondent until March 21.
GENERAL TRUCK DRIVERS LOCAL 980 53
ment.17 Campbell asked Biaggi if the company had de-
cided upon a date to start contract negotiations. Biaggi
stated that the company's representatives were still
working on dates and that Biaggi would get back to
Campbell about the matter. At this point Campbell asked
whether Market Wholesale had requested Andrade by
name to go to work the next day. Biqggi answered
"yes." This ended the conversation.
On March 20 at about 5:20 p.m., approximately 2
hours after Campbell's conversation with Biaggi, Re-
spondent's business agent, Jo Diperno, received a phone
call from "Fred," an employee of Market Wholesale,
asking if it was too late for the company to cancel its
order for the two warehousemen. Diperno stated he
would check with Respondent's office manager, Ego
Roberts.' s Roberts indicated it would be all right to
cancel the order, but told Diperno to first verify the fact
that the company was canceling its order. So Diperno
told "Fred" that Respondent was amenable to canceling
its order for two warehousemen but wanted to know
who had authorized the cancellation. "Fred," after talk-
ing with someone, informed Diperno that Dick Armburst
had told him to cancel the order.
Shortly after Diperno's conversation with "Fred," rep-
resentatives of Respondent notified Crowley and An-
drade that their dispatch to Market Wholesale for the
next morning had been canceled. Andrade, upon receipt
of this information, unsuccessfully tried to get an expla-
nation from Diperno, so he phoned Respondent's office
and asked another business agent, Clair Cate, whether he
knew why his dispatch had been canceled. Cate indicat-
ed he had no knowledge about the matter but would try
to find out. Cate at this time- between 6:30 p.m. and
7:30 p.m.-phoned Market Wholesale's day foreman,
Brumley who, in reply to Cate's question, stated he did
not know that the company's order for two workers had
been canceled. Brumley stated that when he had left the
warehouse that afternoon as far as he knew they needed
two warehousemen for the following morning. Brumley
suggested that Cate speak to Warehouse Superintendent
Armburst about the matter. Cate phoned Armburst at his
home and asked whether he knew anything about the
cancellation of the company's request for two warehou-
semen. Armburst answered in the affirmative and stated
that he had received a phone call from John Biaggi in-
structing him to cancel the request. Cate asked if Biaggi
had told Armburst the reason for the cancellation. Arm-
burst answered "that Biaggi had told him that their con-
tract was open for negotiations and they did not want to
get problems."
On March 20, at approximately 7:30 p.m., Rivetti re-
ceived a phone call from Armburst, who told her "they
were jammed up [and] needed the two men after all."' "
Rivetti asked if Armburst wanted to try to get the same
two men she had dispatched the previous day. Armburst
indicated he wanted Gus Kouninos, as he had worked
'" Campbell and Biaggi had spoken about the contract negotiations
two or three times prior to March 19
Ia Rivetti normally works only until 3 p.m. and when she leaves.
Office Manager Roberts is in charge of dispatching.
19 The record established it is not unusual for Market Wholesale to
phone Respondent the same morning it needs workers.
for the company previously and that anyone else would
do. Rivetti asked why the company no longer was asking
for Andrade. Armburst indicated that he wanted the em-
ployees to report for work as soon as possible and An-
drade lived too far out of town.20 Rivetti dispatched
Crowley and Kouninos to the job. 21
On March 20 at about 8 a.m., Andrade phoned Market
Wholesale and asked Superintendent Armburst what
happened to his dispatch. Armburst stated he had re-
ceived orders "from above" to cancel the work and vol-
unteered the information that "we have two men work-
ing here this morning from your union office." Andrade
asked him if this meant he would never get to work for
Market Wholesale. Armburst stated, "it looks like that"
and stated there was nothing he could do.
D. Andrade Is Dispatched to Nielsen and Becomes a
Regular Employee
On May 17, Nielsen's terminal manager, Liddle, noti-
fied Business Agent Green that he needed a local freight
driver for the next day at the company's Ukiah terminal.
There were two local freight drivers registered that
week on Respondent's Ukiah out-of-work register, Al
Andrade and Mike Bigelow. Since Bigelow was regis-
tered on "List A," he had dispatch preference over An-
drade. Green tried to contact Bigelow on May 17 for the
Nielsen dispatch but did not succeed, as Bigelow had
previously indicated he was unavailable for dispatch that
day. Accordingly, Green dispatched Andrade to the job.
By the date of the hearing in this matter, July 3, An-
drade had worked continuously for Nielsen since May 18
and on June 15 had achieved seniority with Nielsen
under the terms of the Local Freight Agreement.2 2
On May 30, Campbell spoke to Green about the pro-
priety of Green's May 18 dispatch of Andrade to Niel-
sen. Campbell informed Green that if a registrant was
dispatched for casual work, the registrant had to be dis-
patched on a day-to-day basis. Green stated he had never
made this a requirement in operating the Ukiah hiring
hall and that in filling employer's dispatch request he did
not ask about the duration of the jobs. Campbell stated
there were some "List A" registrants who were unhappy
because Andrade was working. Green stated he had dis-
patched Andrade during the normal course of business
and asked whether Campbell wanted him to remove An-
drade from the job. Campbell answered, "You won't
catch me on that one." Also, Campbell indicated that he
thought that Soto, Nielsen's vice president of operations,
was mad at him because Soto had lost the runaround pay
grievance Campbell had filed against Nielsen involving
Andrade's earlier employment with Nielsen. It was due
to that, Campbell told Green, that Soto intended to keep
20 Market Wholesale's work shift had already started at 7 a.m. and it
would have taken Andrade about I hour to reach the company's prem-
ises from his home.
'1 The record establishes that. whereas Rivetti knew she could not
reach Kouninos on March 19. as he was working for another employer.
she was able to contact him on March 20
22 Art. 41 of the Local Freight Agreement provides that any employee
who works a certain number of days for an employer within a 60-da5
period shall be placed on the employer's regular seniority list and be con
sidered as a "regular employee.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Andrade working so that he would acquire sufficient se-
niority to become a regular employee.
On June 6, Campbell informed Green that, since
Green was so busy, perhaps Campbell could lighten his
workload by transferring the dispatching work from
Ukiah to Santa Rosa. Green replied that he did not need
any help in that particular area because there were not
very many registrants on the out-of-work lists maintained
in Ukiah. Campbell then stated that "we're getting a lot
of complaints. I get the complaints. There have been dif-
ferent things about you." Green expressed surprise that
after almost 9 years of operating the out-of-work lists in
Ukiah that there were suddenly complaints about his
work. In reply Campbell answered, "well, you know, all
your troubles were a friend of yours working up in that
area." Green denied that he had anything to do with any
illegal dispatching.
On June 8, Campbell met with Green and in effect in-
formed him that he was transferring the dispatching
work being done at Ukiah to Santa Rosa. During their
conversation Campbell stated that under the terms of the
Local Freight Agreement's hiring hall procedure, if em-
ployers wanted to hire someone, they had to tell Re-
spondent the approximate duration of the job. Campbell
also indicated that Andrade was improperly working for
Nielsen because, after Green dispatched him for a -day
job, Andrade could not work continuously for Nielsen.
Green stated that he felt that the transfer of the Ukiah
hiring facility to Santa Rosa was a personal attack upon
himself. Campbell replied: "you damn ought to because
it is." Campbell then criticized the manner in which
Green had dispatched Andrade to Nielsen and stated
that things had happened which persuaded him that
Green was not a good business agent.2 3
On June 8, Campbell wrote Nielsen's Ukiah terminal
manager, Liddle, and its vice president of operations,
Soto, that effective June 11 the dispatching to freight ter-
minals under Respondent's jurisdiction would be handled
out of Respondent's Santa Rosa office.24
On June 14, Andrade lacked but I day from acquiring
sufficient seniority with Nielsen to become a regular em-
ployee. Campbell, who knew this, phoned Nielsen's
president, Norman Nielsen, on June 14 and told him that
he felt Andrade had been dispatched to his company im-
properly in violation of the contractual hiring procedures
and that Nielsen "should be using somebody else instead
of Al Andrade," that Nielsen should be using "another
Teamster and not Al Andrade." Campbell pointed out to
President Nielsen that his company had previously used
employees Bigelow and Blair to work at the Ukiah ter-
minal. President Nielsen acknowledged this but took the
position that Andrade had been properly dispatched. At
this point Campbell asked whether President Nielsen
knew that Campbell had transferred the authority to dis-
patch applicants from Respondent's Ukiah office to its
23 Campbell and Green testified about their June 8 conversation. Since
Green impressed me as the more credible witness, I have credited his tes-
timony in those instances where there is conlfict.
24 Since about July 1978 the only freight terminals within Respond-
ent's jurisdiction which had been handled out of Respondent's Ukiah
office insofar as the dispatch of drivers was concerned were Nielsen's
Fort Bragg and Ukiah terminals.
Santa Rosa office and that from now on, when it re-
quested drivers, the Ukiah terminal would be dealing
with Campbell. President Nielsen stated he knew this but
would continue to employ Andrade at Ukiah until such
time as his company did not need him, inasmuch as An-
drade had been properly dispatched on "a continued dis-
patch call" and was doing a good job. Nielsen mentioned
that Andrade was approaching the point where he would
acquire sufficient seniority with Nielsen to become a reg-
ular employee and expressed the view that there seemed
to be some difficulty between Campbell and Andrade
about this but that this was none of the company's busi-
ness and that the company did not want to take sides.
Campbell stated that Nielsen had already taken sides and
was "involved." President Nielsen expressed the hope
that this was not the reason why Respondent had filed
certain grievances against his company, at which point
the conversation became a "little heated" with Campbell
denying that grievances had been filed in retaliation for
Nielsen's employment of Andrade. Campbell repeated his
earlier statement that Nielsen should be employing some-
one else instead of Andrade. President Nielsen reiterated
that he felt justified in continuing to employ Andrade
and ended the conversation by advising Campbell that
since this was not his area of responsibility, if he wanted
to continue to press the matter he should speak to Soto.
Campbell stated he would do so and this ended the con-
versation. 2
E. Conclusionary Findings
1. Respondent fines Andrade as the result of
Campbell's citation
As the result of Campbell's citation, Andrade was tried
by Respondent's executive board and found guilty of
violating Respondent's constitution and bylaws because
he had gone to work for Nielsen on February I in viola-
tion of the hiring procedures of the Local Freight
Agreement. The person who filed the citation which re-
sulted in Andrade's conviction and fine, Respondent Sec-
retary-Treasurer Campbell, testified that he filed the cita-
tion because Andrade had worked for Nielsen on Febru-
ary 1 "without proper clearance." He further testified
that his only reasons for reaching this conclusion were as
follows: (1) Andrade was not registered on the out-of-
work register when he went to work for Nielsen; (2)
there were "List A" registrants who had preference over
Andrade for employment; (3) Andrade had not furnished
Respondent with copies of his DOT certificates; and (4)
Nielsen, prior to the evening of January 31, had known
it would need a casual to work February 1, yet did not
call Respondent's hiring hall.
An examination of the record establishes that, without
regard to whether or not they are supported by the
record, Campbell's first three reasons are completely
without substance and border on the frivolous inasmuch
as the record establishes that the after-hours clause of the
Local Freight Agreement's hiring procedure permitted
2' The description of the Nieslen-Campbell June 14 conversation is
based upon Nielsen's tetsimony. I have rejected Campbell's testimony
which in certain significant respects conflicts with Nielsen's because, in
my opinion, Nielsen impressed me as the more credible witness.
GENERAL TRUCK DRIVERS LOCAL 980 55
Andrade to accept casual work without being dispatched
by Respondent so long as the job offer was made to An-
drade after the hiring hall was closed. 2 6 This is exactly
what took place in connection with Andrade's February
I job with Nielsen. Under the circumstances, the fact
that on January 31 Andrade may not have been eligible
for dispatch for all or one of Campbell's reasons (1)
through (3), supra, is completely irrelevant inasmuch as,
under the terms of the Local Freight Agreement, An-
drade was free to accept Nielsen's job offer without
being dispatched by Respondent.
Also the record does not support Campbell's further
contention that, prior to the evening of Janaury 31, Niel-
sen knew it would need a casual on February 1. Rather,
the record establishes Nielsen did not know until the
evening of January 31, after Respondent's Ukiah hiring
hall was closed, that it needed a casual for the next day,
at which point Andrade was hired. Any doubt in Camp-
bell's mind concerning this should have been removed by
the results of Campbell's own investigation. Thus, on
February 1, Business Agent Green informed Campbell
that Terminal Manager Liddle had advised Green that
his earlier comment to Green was incorrect and that it
was not until the evening of January 31, after Respond-
ent's hiring hall was closed, that Goslin had asked to be
absent February 1. In addition, on either February 2 or
February 5, Green informed Campbell that he had
spoken to Goslin about Liddle's aforesaid statement and
that Goslin corroborated Liddle. And, on February 8,
Liddle, in answer to Campbell's inquiry, told Campbell
he had not known he would need a casual for February
I until the evening of Janaury 31. In short, Campbell,
several days before the February 12 hearing concerning
his citation against Andrade, had no reasonable basis for
believing that Nielsen, in an effort to circumvent the
Local Freight Agreement's hiring procedure, had ne-
glected to call Respondent for the casual worker it
needed on February 1. In any event, assuming Campbell
believed Nielsen had not called Respondent's hiring hall
for a casual so it could take advantage of the after-hours
clause to hire Andrade, there is insufficient evidence that
Andrade was a party to this scheme or that Campbell
filed his citation against Andrade because he believed
Andrade was involved in such a scheme. This was not
one of the reasons advanced by Campbell at the instant
hearing for filing the citation. Quite the contrary, he tes-
tified that thought that Andrade might have solicited his
job with Nielsen was not one of the reasons which
prompted him to file the citation against Andrade.
It is for the foregoing reasons that I find Campbell's
reasons for filing his February 2 citation against An-
drade, which resulted in Andrade's fine, were completely
without substance and were not the real reasons which
motivated Campbell.
The law is settled that, where an employer representa-
tive or union representative advances a false reason in
support of conduct which adversely affects employees,
the logical inference is that there was another motive
which prompted the conduct and that this hidden motive
2o Sec 5 of the Local Freight Agreement's hiring procedure specifical-
ly states that if Respondent's hiring hall is closed "the employer may then
hire such casual workers from any other available source."
is an unlawful one, provided "the surrounding circum-
stances tend to reinforce that inference" Shattuck Denn
Mining Corporation (Iron King Branch) v. N.L.R.B., 362
F.2d 466, 470 (9th cir. 1966). The General Counsel, as al-
leged in the amended complaint, contends that the sur-
rounding circumstances herein establish that Campbell's
real motive in citing Andrade for violating the Local
Feight Agreement's hiring procedure was to punish him
because of "his intra-union sympathies and activities in
opposition to [Campbell]." I do not believe that a pre-
ponderance of the evidence supports this allegation.
The record establishes that, during the period Andrade
worked for Campbell as a business agent and organizer,
Campbell was displeased and upset with Andrade be-
cause of Andrade's job performance and because An-
drade was critical of the manner in which Campbell was
managing Respondent and because Andrade did not
inform Campbell why certain business agents were "plot-
ting against" him. There is no evidence that Andrade
ever engaged in any activity whatsoever aimed at oust-
ing Campbell from his position of secretary-treasurer at
the next union election scheduled for October 1980. 1
recognize that, in September 1978, Andrade, while ex-
plaining to Campbell why certain business agents were
unhappy with Campbell, stated that he thought Respond-
ent's membership would vote Campbell out of office.
This is insufficient, in my view, to support an inference
that Campbell, when he cited Andrade several months
later, believed that Andrade intended to oppose his ree-
lection. Moreover, there is no evidence that Campbell
ever said anything which indicated he was hostile
toward Andrade because he believed Andrade opposed
his reelection. Campbell's February 13 statement to Busi-
ness Agent Green that Campbell had learned through the
"grapevine" that Andrade now intended "to take every-
one on" is not sufficient to establish such hostility, inas-
much as it is too vague and equivocal. And, even assum-
ing that it can reasonably be construed as indicating
Campbell thought Andrade intended to oppose his ree-
lection, it is just as probable that Campbell learned of
this information through the "grapevine" only after he
filed his citation against Andrade, rather than before. In
any event, as indicated previously, there is no evidence
that Campbell harbored ill will toward Andrade because
he thought Andrade intended to oppose his reelection.
This is not surprising in view of the absence of such po-
litical activity by Andrade and the fact that the election
was almost 2 years in the future.
Based upon the foregoing, I find that Campbell in
filing his citation against Andrade, which resulted in An-
drade's being fined by Respondent, was motivated by his
personal animosity toward Andrade, rather than a belief
that Andrade had violated the governing hiring hall pro-
cedures. I further find for the reasons set forth above,
that the record fails to establish by a preponderance of
the evidence that Campbell's animosity toward Andrade
was based, in whole or in part, upon a belief that An-
drade was engaged in intraunion activity with the object
of opposing Campbell's reelection or intended to engage
in such activity in the future. Therefore, I shall recom-
mend that the portion of the amended complaint which
alleges that Respondent violated Section 8(b)(1)(A) by
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
imposing a fine upon Andrade because of his "intraunion
sympathies and activities in opposition to [Campbell]" be
dismissed in its entirety.
2. Respondent informs Andrade it will not accept
his membership dues until he has paid his fine
The amended complaint alleges that, on February 16,
Respondent notified Andrade it would refuse to accept
his membership dues until he paid the fine Respondent
levied against him and further alleges that by engaging in
this conduct Respondent violated Section 8(b)(l)(A) of
the Act. In this connection, it is undisputed that, on Feb-
ruary 16, Respondent's secretary-treasurer wrote An-
drade that Respondent's executive board had found him
guilty of violating Respondent's constitution and bylaws
and had fined him $250, of which $100 was suspended.
The letter further advised Andrade: "The $150 fine is to
be paid before any further dues will be accepted." I
agree with the General Counsel that Respondent violat-
ed Section 8(b)(1)(A) by notifying Andrade that he was
required to pay his fine before Respondent would accept
his membership dues. International Union of Elevator
Constructors, Local Union No. 8, AFL-CIO (San Francis-
co Elevator Co.), 243 NLRB No. 10, fn. 1 (1979).
3. Respondent refuses to dispatch Andrade to
Nielsen
The amended complaint alleges that, on or about Feb-
ruary 1, Respondent caused Nielsen to "terminate and/or
fail to employ" Andrade for reasons proscribed by the
Act.
There is no evidence or contention that Respondent
caused Nielsen to terminate Andrade; accordingly, I
shall recommend that this part of the allegation be dis-
missed.
Regarding the allegation that Respondent on or about
February I caused Nielsen to fail to employ Andrade,
the evidence, described in detail supra, establishes that
Liddle, Nielsen's terminal manager, on February 2 indi-
cated to Respondent Business Agent Green that later in
February the employer would need the services of a
casual local driver and wanted Respondent to dispatch
Andrade for this work. Green's reply, in essence, was
that under the terms of the Local Freight Agreement's
hiring procedure Nielsen could not specifically request
Andrade's dispatch because he was a "List B" rather
than a "List A" registrant. Andrade was in fact a "List
B" registrant and Green correctly interpreted the con-
tractual hiring procedure. In other words, Green's con-
duct was sanctioned by the terms of the governing col-
lective-bargaining agreement. And there is no evidence
Respondent treated Andrade differently from other "List
B" registrants when it refused to allow Nielsen to spe-
cifically request his dispatch. Quite the contrary, the
record establishes that Respondent does not allow em-
ployers to specifically request a particular "List B" regis-
trant for casual work. Under the circumstances, the Gen-
eral Counsel has failed to establish that Respondent's re-
fusal to honor Nielsen's request for Andrade's dispatch
was a pretext and that the real reason for the refusal was
Campbell's personal animosity toward Andrade.
Based upon the foregoing I find that Respondent's re-
fusal on February 2 to comply with Nielsen's specific re-
quest that Andrade be dispatched later during the month
was not a violation of the Act, 27 and I shall therefore
recommend the dismissal of that part of the complaint
which alleges that, on or about February 1, Respondent
caused Nielsen to "fail to employ" Andrade for illegal
reasons.
4. Respondent attempts to cause Nielsen to
terminate Andrade
The amended complaint alleges that, on June 14, Re-
spondent attempted to cause Nielsen to terminate An-
drade's employment for reasons proscribed by the Act.
An evaluation of the evidence pertinent to this allegation
reveals the following.
On May 17, the manager of Nielsen's Ukiah terminal
contacted Business Agent Green, who was in charge of
Respondent's Ukiah hiring hall, and asked Green to dis-
patch a local freight driver to the terminal the next day.
Green dispatched Andrade. The circumstances surround-
ing Green's dispatch of Andrade, which were described
in detail supra, establish Andrade's dispatch complied
with the hiring procedure of the Local Freight Agree-
ment. On the date of the hearing in this case, July 3, An-
drade had worked continuously since May 18 for Nieslen
at its Ukiah terminal as a local freight driver. On June 15
Andrade had been employed by Nielsen the requisite
number of days so as to achieve seniority with Nielsen
under the terms of the Local Freight Agreement and on
that day became a regular employee of Nielsen's.
On June 14, the day before Andrade became a regular
employee, Respondent Secretary-Treasurer Campbell
phoned Nielsen President Norman Nielsen and, as de-
scribed in detail supra, told him Andrade had been dis-
patched to Nielsen in violation of the Local Freight
Agreement's hiring procedure and stated to Norman
Nielsen that the employer "should be using somebody
else instead of Al Andrade" and asked that Norman
Nielsen use "another Teamster and not Al Andrade" and
pointed out that in the past the employer had used two
of the employer's Santa Rosa drivers, who were on
layoff, to work at the Ukiah terminal.
The sole evidence presented by Respondent, that the
employment of Andrade by Nielsen violated the Local
Freight Agreement or was otherwise impermissible, was
Campbell's testimony that Nielsen on May 17, when it
asked Respondent to dispatch a local driver to its Ukiah
terminal, asked for a driver for I day only; thus, after
May 18, Andrade's employment should have been termi-
nated. In other words, Campbell testified Andrade was
working continuously for Nielsen, even though he had
been dispatched for a I-day job. The record does not
support this contention. The terminal manager's May 17
z' I note there is no contention that in February, subsequent to Febru-
ary 2, Nielsen asked Respondent to dispatch a local driver to its Ukiah
terminal for casual work and that, in complying with this request, Re-
spondent discriminated against Andrade Indeed, there is no evidence
that in February, following its unsuccessful attempt on February 2 to
secure Respondent's commitment to specifically refer Andrade for casual
work, Nielsen ever requested that Respondent refer a casual to its Ukiah
terminal
GENERAL TRUCK DRIVERS LOCAL 980 57
request that a local truckdriver be dispatched on May 18
was not worded specifically in terms of a 1-day job. In
fact, Andrade worked continuously for Nielsen from
May 18 to at least July 3, which indicates that Nielsen
intended to employ the driver it requested for several
days. But more significant, in evaluating Campbell's mo-
tivation, is Campbell's inability to explain convincingly
why he believed that Andrade's dispatch was for I day
only. His testimony, that the reason he thought that An-
drade's dispatch was for I day was that '[t]he dispatch
shows that he was just dispatched for one day," is belied
by the dispatch slip which Respondent issued to An-
drade which does not indicate the job was just for 1 day.
Based upon the foregoing, I find Andrade was dis-
patched by Respondent to his job with Nielsen on May
18 in compliance with the hiring procedure of the gov-
erning collective-bargaining agreement and, on June 14,
was properly working for Nielsen and that Campbell's
attempt on June 14 to cause Nielsen to terminate An-
drade's employment was not based upon any legitimate
reason. These circumstances, viewed in light of the evi-
dence, supra, which indicates that Campbell was person-
ally antagonistic toward Andrade due to Andrade's con-
duct which had occurred while Andrade was working
for Campbell and Andrade's conduct of accepting a job
with Nielsen on February 1, warrants the inference that
Campbell's attempt to cause Nielsen on June 14 to termi-
nate Andrade was motivated by personal considerations.
It is for the foregoing reasons that I find Respondent
violated Section 8(b)(2) of the Act by attempting to
cause" Nielsen to discriminate against Andrade in viola-
tion of Section 8(b)(2) of the Act. 29
2 I have considered that Campbell during his June 14 conversation
with Norman Nielsen expressed no threats, either express or implied, nor
did he indicate Respondent would take retaliatory action if Nielsen failed
to comply with Campbell's request that it replace Andrade with another
teamster. Nonetheless, I am of the opinion that Campbell's bare request
for Andrade's termination violated Sec. 8(b)(2), as the Board and courts
have stated that a violation of Sec. 8(b)(2) "'can exist . . . where an in-
ducing communication is in terms courteous or even precatory as where
it is rude and demanding."' N.L.R.B. v. St Joe Paper Company and Local
118, International Brotherhood of Teamsters. Chauffeurs. Warehousemen
and Helpers of America, 319 F.2d 819, 820 821 (2d Cir 1963), quoting
from N.L.R.B. v Jarka Corporation of Philadelphia, 198 F.2d 618, 621 (3d
Cir. 1952) In St. Joe Paper, the court held that the statement by a union
official to an employer that as long as the shop was a union shop, "the
union man . [should] be kept on" was sufficient to constitute a viola-
tion of Sec 8(b)(2) Similarly, in Jarku, the court held that the statements,
"you can't carry . . [a nonmember of the Union]" and "you got to take
[a union man]," were violative of the Act. In other words, the conduct of
a union representative which is "tantamount to a request to discriminate
with respect to the terms of' an employee's employment, and is "reason-
ably calculated to bring about that result" violates Sec. 8(bX2) of the
Act. N.L.R.. v. Miami Valley Carpenters' District Council of Dayton.
Ohio, United Brotherhood of Carpenters and Joiners of America, AFL-CIO(),
297 F. 2d 920, 921 (6th Cir. 1962) Campbell's June 14 conduct falls into
this category.
29 The law is settled that where, as in the instant case, a representative
of a union engages in conduct calculated to adversely affect an employ-
ee's job because of the personal hostility of the union representative
toward the employee, the union violates Sec 8(b)(2) of the Act. L. R
v. International Longshoremens & Warehouse'men's Union Local 27. 514
F.2d 481, 483 (9th Cir 1975). Union-caused discrimination has.'ld on
grounds, such as anger or personal hostility, are unlawful, for such cn-
duct "encourages membership in [the union] and stands as a ariling to
employees that favor and good will of responsible uniin fficials is t,, h
nurtured and sustained." Local 1070 of the United Brotherhood Of ('arpn-
ters and Joiners of America (B. Horn Company), 137 NLRB 41tL 442
5. Market Wholesale cancels Andrade's dispatch
The amended complaint alleges that, on March 19, Re-
spondent caused Market Wholesale to refuse to employ
Andrade for reasons proscribed by the Act. I am of the
opinion the General Counsel has not carried his burden
of proving by a preponderance of the evidence that Re-
spondent caused Market Wholesale to refuse to employ
Andrade; therefore, I shall recommend the dismissal of
this allegation.
I have considered that Market Wholesale's decision to
cancel its request that Respondent dispatch Andrade was
made shortly after Respondent Secretary-Treasurer
Campbell spoke to Market Wholesale's general manager,
Biaggi, about Andrade's dispatch and that the next day
Market Wholesale reinstated its original dispatch order,
but expressly declined to employ Andrade. These cir-
cumstances, plus Campbell's personal hostility toward
Andrade, makes me suspicious of Campbell's testimony
that, when he spoke to Biaggi about Andrade, he made
no effort to dissuade him from employing Andrade.
However, Campbell's testimony about this conversation
is uncontradicted, it is not inherently incredible and,
more important, while testifying about this conversation
he impressed me as a sincere witness. And, in connection
with Market Wholesale's reinstatement of its canceled re-
quest for warehousemen, the record, as described in
detail, supra, establishes that Market Wholesale, acting
on its own volition, without any prompting from Re-
spondent, refused to employ Andrade because of legiti-
mate business considerations.
Nor is the testimony of Respondent Business Agent
Cate that Market Wholesale's warehouse superintendent,
Armburst, told Cate that General Manager Biaggi had
instructed Armburst to cancel the employer's March 19
request that Respondent dispatch two warehousemen be-
cause "they did not want to get problems," as Market
Wholesale's contract with Respondent was open for ne-
gotiations, sufficient to establish that Respondent had en-
gaged in conduct designed to cause the company to
refuse to employ Andrade. Likewise, the testimony of
Andrade, that Armburst told him that he had received
orders "from above" to cancel Andrade's March 19 dis-
patch, is not sufficient to establish this. The aforesaid
statements are vague and equivocal and, in any event,
are clearly hearsay with respect to Respondent and for
that reason cannot be used as evidence against Respond-
ent to prove Respondent caused Market Wholesale to
refuse to employ Andrade. Brotherhood of Railway. Air-
line and Steamship Clerks. Freight Handlers, Express and
Station Employees, AFL-CIO (Safety Cabs, Inc. and New
Deal Cab Company. Inc.), 180 NLRB 126 (1969) Local
776, IA TSE (Film Editors) (Cascade Pictures of California.
Inc.), 124 NLRB 842, fn. 2 (1959); Walter J. Barnes Elec-
trical Co., Inc., 188 NLRB 183, 186, 187 (1971).
(1962) Accord: International Union of Operating Engineers. HIloting and
Portable Local No. 513. AFL-CIO (S. J Grovers and Sons Co(). 199
NLRB 921 1972); N.L.R.B. Hod Carriers and Construction Laborrs
Unlo,. Local No. 300 (Desert Pipeline Construction Co.i 392 F2d 581RI
581 582 (9th Cir 1968): United 4ssociation of Journekmnn and Ippretntsri
of the Plumbing and Pipe F itring Industrv of the United States and ('analda
Local 675..4 AL -(0 (Mid-Pacific Construction Companyi. 161 NI RHI
1351, I 55 (1966), enfd 427 F.2d 141, 342 (9th Cir 1'67)
5X DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based upon the foregoing, I find that the record con-
tains insufficient evidence, either direct or circumstantial,
to support a reasonable inference of a request by Re-
spondent or an understanding between Respondent and
Market Wholesale that Market Wholesale would not
employ Andrade. Accordingly, I am constrained to find
that the General Counsel has not carried his burden of
proving by a preponderance of the evidence that Re-
spondent caused Market Wholesale to refuse to employ
Andrade. It is for this reason that I shall recommend that
this allegation be dismissed.
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 30
The Respondent, General Truck Drivers, Warehouse-
men & Helpers Union, Local 980, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Santa Rosa, California, its officers,
agents, and representatives, shall:
I. Cease and desist from:
(a) Attempting to cause Nielsen Freight Lines, Inc., to
discriminate against any employee in violation of Section
8(a)(3) of the Act.
(b) Restraining and coercing employees and members
in the exercise of rights guaranteed in Section 7 of the
:"' 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
findings, 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
Act by informing them that fines imposed by Respond-
ent are payable before Respondent will accept their
membership dues.
(c) In any like or related manner restraining or coerc-
ing employees and members in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Post at its offices and meeting halls in Ukiah and
Santa Rosa, California, copies of the attached notice
marked "Appendix." 3 Copies of said notice, on forms
provided by the Regional Director for Region 20, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered. defaced, or cov-
ered by any other material. Respondent shall also sign
copies of the notice which the Regional Director shall
make available for posting by Nielsen Freight Lines,
Inc., if it be willing.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the amended complaint
be dismissed insofar as it alleges violations of the Act not
specifically found.
"' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."