Truck Drivers Union Local No. 407

National Labor Relations Board - Board Decisions

Apr 25, 1980

249 N.L.R.B. 59 (N.L.R.B. 1980)

TRUCK DRIVERS UNION LOCAL NO. 407 59
Truck Drivers Union Local No. 407, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America (Wenham Transportation, Inc.) and
Carl J. Novello. Case 8-CB-3534
April 25, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On January 11, 1980, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
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 and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I The General Counsel has excepted to certain credibility findings
made b the Administrative Law Judge It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all ,of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 62 (3d Cir
1951). We have carefully examined the record ad find no basis for re-
versing his findings
DECISION
BERNARD RIES, Administrative Law Judge: This
matter was heard in Cleveland, Ohio, on August 1-2,
1979. The complaint alleges that Respondent Truck
Drivers Union Local No. 407 affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse
men and Helpers of America' agents, in the course of
a year, failed on five occasions to fulfill Respondent's
duty of fair representation, and that Respondent thereby
violated Section 8(b)(l)(A) of the Act. The answer to the
complaint denies all material allegations of the com-
plaint. 2
As amended at the hearing
The parties agree. however, that the employer involved. Wenham
Transportation, Inc., is an employer engaged in commerce ithin the
meaning of the Act, and that Respotident is a labor orgalizatioln a, de-
249 NLRB No. 7
Briefs have been received from the parties. I have
carefully considered the briefs and the entire record. 3
Based on that consideration, and my recollection of the
demeanor of the witnesses, I make the following find-
ings, conclusions, and recommendation.
Before discussing the evidence, it seems useful to set
out for handy reference the critical allegations of the
complaint. Paragraphs 8 and 9 of the complaint read as
follows:
8. (A) The Employer and the Respondent are
parties to the National Master Freight Agreement
Covering Over-The-Road and Local Cartage Em-
ployees of Private Common, Contract and Local
Cartage Carriers for the period April 1, 1976,
through March 31, 1979, and Central States Area
Iron and Steel Agreement for the same period.
(B) For approximately 25 years until and includ-
ing December 31, 1976, the Respondent and the
Employer maintained a Red Circle Board providing
the most senior drivers working out of the Employ-
er's Cleveland, Ohio, terminal with their choice of
loads on the trucking run from Cleveland to Chica-
go. The Charging Party, Henry Linski, Darrell
Beals, and Carlton Sperling were the four employ-
ees remaining on the Red Circle Board as of De-
cember 14, 1976.
(C) On or about December 14, 1976, the Joint
Area Conference (an Employer-Respondent panel)
hereinafter referred to as JAC, agreed to a six-
month trial period for a new set of dispatch rules
for all of the Employer's terminals including the
Cleveland terminal involved herein which was pro-
posed by the Employer pursuant to the collective-
bargining agreement referred to in subparagraph
8(A) above with the exception that Red Circle pref-
erence was to remain in effect during this period.
(D) Notwithstanding the JAC decision in subpar-
agraph 8(C) above, commencing in January 1977,
the Employer discontinued Red Circle preference at
its terminals including the Cleveland terminal.
(E) On or about June 14, 1977, the JAC ap-
proved the Employer's new dispatch rules for a
new six-month period but again determined that
Red Circle preference would continue to remain in
effect for this period.
9. (A) On or about January 1977 in response to a
complaint from drivers based at the Employer's
Cleveland terminal concerning loss of Red Circle
preference, Respondent, through its agent and rep-
resentative Business representative, James Horta,
notwithstanding the JAC decision referred to in
subparagraph 8(C) above, willfully misrepresented
the December 1976 JAC Red Circle decision by ad-
vising said employees that JAC had eliminated Red
Circle for a six-month period.
(B) On or about June 14, 1977, Respondent.
through its agent, Business Representative James
fined by the Act. I conclude that it is appropriate for the Board to Pssert
Jurisdiction herein
:1 Sua ponit, I hereb) correct the official transcript of proceedings n
this clse in certain respects
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Horta, after previously advising a Cleveland based
driver employee of the Employer whose employ-
ment had been affected by the Employer's elimina-
tion of Red Circle preference that Horta would at-
tempt to obtain restoration of Red Circle preference
at the June 14, 1977, JAC meeting, took a contrary
position at said meeting and supported the Employ-
er's proposal to eliminate Red Circle preference.
(C) In or about June 1977, Respondent, through
its agent, Business Representative Robert Moody,
notwithstanding the JAC decision referred to in
subpargraph 8(E) above, willfully misrepresented to
a Cleveland-based driver employee of the Employer
affected by the Employer's Red Circle actions, that
Red Circle preference had been eliminated by the
June 1977 JAC decision.
(D) Since in or about December 1976 and June
1977 JAC meetings, and continuing to date the
Union has failed and refused, and continues to fail
and refuse to seek Employer compliance with the
JAC Red Circle decisions of Decembe 14, 1976,
and June 14, 1977, and to preserve Red Circle pref-
erence for employees Novello, Linski, Beals, and
Sperling.
(E) In or about December 1977, at a JAC meet-
ing, the Union, through its agent, Business Repre-
sentative James Horta, failed and refused to pros-
ecute in good faith employee Novello's grievance as
to elimination of Red Circle preference.
Wenham is an Ohio corporation engaged principally in
the interstate transportation of freight. At material times,
it operated 19 terminals4 in a seven-state area. Working
under the bargaining agreements referred to in the com-
plaint, above, Wenham recognizes various locals (appar-
ently about 11 different ones) of the Teamsters Union at
its several terminals. At the Cleveland terminal which
concerns us here, Respondent Local No. 407 represents
Wenham's 30-40 drivers.
Somewhat obscure are the origins and dimensions of
the personnel practice which is at the core of this pro-
ceeding, the so-called red circle preference, It appears
that, perhaps in the early 1950's, Wenham began to make
special provision for its more senior drivers based in
Cleveland, affording them a priority in their choice of
dispatches out of the Cleveland terminal.5 The extent
and method of operation of the preference is not com-
pletly clear.
Carl Novello, the Charging Party, who has been em-
ployed by Wenham for more than 30 years, and who
was one of the four remaining red-circle men at the time
of the hearing, 6 testified that the preference only permit-
ted the favored drivers to have first crack at the Cleve-
land-to-Chicago-area runs, and in fact Novello made no
other hauls for a quarter century. He also testified that a
separate dispatch board was operated for the red-circle
' See Resp. Exh I
s All of Wenham's over-the-road drivers own their vehicles. Respond-
ert has raised no question about their status as statutory employees
i There were evidently about 14 red-circle drivers at (mone poinlt The
practice of denominaltig a driver as a red-circle man stopped with Henry
Linski around 1960, and the group had, with death and retirement, dimin-
ished to four drivers (Novello, Linski, [teals, and Sperling) by 1979,
men. Such documentary evidence as there is in evidence,
on preference, is not entirely consistent with Novello's
testimony.
The earliest document to be found, a September 1972
memorandum from Wenham's then-president, Pempin,
which outlines the "methods of dispatch for the six red-
circle men out of the Cleveland Terminal," does state
that "a separate board will be maintained for the Red-
Circle men," but is silent as to whether the preference
applies only to Cleveland-Chicago runs. An April 1975
copy of the Cleveland dispatch rules also indicates that
there was no limitation as to the scope of the preference,
and makes it appear that only one board was used ("It is
understood that the five red circle seniority men get
placed on the board for load choice and assignment
ahead of the regular men already listed on the board").
An undated document setting out the Cleveland dispatch
rules states, "All drivers get on the board on a first-in-
first-out system with the exception of the six red-circle
men who have the oldest seniority. These red-circle men
always have their selection of loads before any other
driver. This has been a past practice."7
Whatever the precise rights and limitations of the red-
circle practice, however, it appears that it was consid-
ered valuable, certainly by Novello. 8
Frederick Wenham, president of the Company since
August 1975, testified that prior to 1977, the disparity in
dispatch procedures which obtained at the Company's
terminals had brought about unhappiness and inefficien-
cy,9 and that he concluded that uniform dispatch proce-
dures should be promulgated for all the terminals. He
prepared such rules and had them docketed for discus-
sion at the Joint Area Conference (JAC) meeting sched-
uled for December 1976; under the bargaining agree-
ments, the JAC, a joint labor-management committee, is
authorized to approved or disapprove the adoption of
such procedures. The principal change in operations
wrought by the proposed rules appears to have been the
adoption of a "forced board" in place of a "roll board"
at some of the terminals; one effect of the new rules was
to abolish the red-circle preference at the Cleveland ter-
minal.
James Horta was, at the time, the business agent of
Local 407 assigned to represent Wenham's Cleveland
drivers. The red-circle drivers in that group evidently
made clear to Horta that they opposed the new proce-
dures, since the transcript of the December 1976 JAC
meeting shows that Horta registered a flat protest against
the rules on behalf on Local 407 at that meeting, noting
that the rules would effectively eliminate the red-circle
preference. Representatives of the other Teamsters
locals, representing other Wenham terminals, were gen-
i Since the document refers to "six" red-circle men, it obviously pre-
dates the April 1975 copy of the rules.
8 The record shows, however, that when the Company abolished the
preference none of the other red-circle men officially complained.
Whether Novello made monley, oir lost it, as a result of the abolition of
the preference in Janluary 1977, is shown by certain exhibits to be a con-
troverted question
u Wenhlan melntionlid the waste (of fuel occasioned by a Vanlaert-based
driver unloading at Warrenl who then Aas forced. by local rules, to dead-
head back to Vanwert to pick up his next load. instead of loading at
Warren.
TRUCK DRIVERS UNION LOCAL NO. 407 61
erally agreeable to the revised rules, however, but some
asked that they be put into effect only conditionally, for
a 6-month period until the June 1977 JAC meeting, so
that they could explore the sentiments of their members.
The committee adopted this suggestion and issued the
following decision:
Based on the facts as presented, it is the decision of
this committee by majority vote that the dispatch
and work rules are hereby approved subject to a
review of same within six months at the June JAC
(1977) meeting. Those locals who have not had the
opportunity to take the rules and dispatch to their
membership may do so for explanation and approv-
al.
Novello testified that a few days after the hearing, he
asked Horta' ° about the results of the meeting, and
Horta told him "that he was outvoted by all the other
locals that represented Wenham Transportation in a dif-
ferent city where they have a terminal. All the business
agents outvoted him, and that we had lost it [referring to
the red circle] only for a six month trial period." Horta
went on to say that "he didn't like the ruling and that is
the end of it, and we had to live with it for a six-month
trial period when the JAC rules, that is it." Horta further
told Novello that they "would try when they have to go
back in June, that they have to take a vote, that all the
locals were instructed when they come back to the June
meeting they should take a vote of the members to see if
they wanted to work under these new work rules or go
back to the old system."
After the JAC meeting, the Company put the new
rules into effect, and the red-circle men lost their prefer-
ence. In January, at Novello's request, Horta caused the
Company to post a dormant Detroit bid run, which was
then awarded to Novello. During a conversation with
Horta in this period, Novello spoke of the possibility of
being red circled again if the old system was restored,
and Horta said, "After we get it back at the JAC hearing
and we win it back, you will go back to Chicago like
you always were."
As set out above, the complaint asserts that the JAC
decided in December 1976 that the new rules would un-
dergo a 6-month trial period "with the exception that
Red Circle preference was to remain in effect during this
period," and that Horta thereafter, in January 1977,
"willfully misrepresented the December 1976 JAC Red
Circle decision by advising . . . employees that JAC had
eliminated Red Circle for a six-month period. I am
unable to follow the thread of this argument.
The JAC formal decision, set out above, unequivocally
adopts the proposed procedures for a 6-month period in
toto, with no red circle exception. That is precisely what
Horta told Novello. In his brief, General Counsel asserts,
"At the December 1976 meeting, the JAC decided to
allow the proposed new rules to be put into effect for a
six-month trial period and to inform the parties that Red
Circle must be preserved." (Jt. Exh. 2) In the transcript
10 Horta did not testify There as nothing inherently improbable
about Novello's description of this conversation with Horta. and I credit
him abtxut this meeting
of the December meeting the only reference to the red-
circle practice occurs in the caucus of the committee,
outside of the hearing of Horta and the other parties:
MR. JOHANNES: My motion is that we approve
the rules and regulations until the June JAC meet-
ing, and those locals that have not had the opportu-
nity to take the rules to the membership be allowed
to get the membership approval and report back in
June, and the red circles at 407-
MR. WOLFE: I don't think you ought to put that
in the motion, all those adjustments.
MR. Szucs: We will just remind them of it.
Whatever Johannes, a business agent for Local 200,
might have gone on to say about "the red circles at 407"
is lost to the world forever. What, if anything, the com-
mittee "remind[ed]" the parties of is nowhere shown in
the record. Two things are clear: one is that Horta was
not present during the committee caucus in which this
fleeting reference to the red circle was made; the second
is that no reasonable person reading the committee's de-
cision could have disagreed with Horta's belief that the
proposed rules had been adopted and, ipso facto, the red
circle temporarily eliminated." On this state of the
record, there is no basis at all for the argument that
Horta willfully deceived Novello by failing to notify him
that "the JAC decided . . . to inform the parties that
Red Circle must be preserved."1 2 I would dismiss this
allegation of the complaint.
The next allegation is that Horta, having advised No-
vello that he would attempt to seek restoration of the
preference at the June 1977 meeting, "took a contrary
position at said meeting and supported the Employer's
proposal to eliminate Red Circle preference."
For reasons unknown, Respondent has a practice of
rotating business agents about every 4 months. As a
result of that practice, Everett (Bob) Moody succeeded
Horta and began servicing the Cleveland Wenham driv-
ers on or about February 7, 1977; thereafter, William
Cassidy succeeded Moody on May 30. Around May 16,
in preparation for the upcoming June JAC meeting,
Moody conducted a mail ballot among the Cleveland
drivers to determine whether they preferred the "dis-
patch procedure now in effect" or the one "in effect
prior to January 1977." Novello was a member of the
three-man committee which counted the ballots: the tally
showed that of the 22 ballots cast (of 39 mailed out), 19
of Wenham's Cleveland drivers voted against the new
rules.
By June 14, the date of the JAC meeting, William Cas-
sidy had become the Local 407 business agent handling
the Cleveland Wenham employees. Cassidy, Horta, and
Moody all attended the meeting, along with other Team-
ster local agents representing other Wenham employees,
' The transcript of the June 1977 JAC meeting, discussed infra, has
Horta plainly demonstrating that he so understood: "When you granted
the temporary thing, the only objection that we had on record on the
five people at red circle, the decision was to put these people on the
rules, and the procedure as to be followed with everybody, because
there was no language under the red circle five people."
12 As shown below, when the committee wished to specifically pre-
serve the preference, it knew how to do so
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and President Wenham. General Counsel's brief states,
"[T]he transcript of the June 1977 JAC meeting revealed
that Horta and his colleague Moody made no effort to
restore Red Circle; to the contrary, Horta joined the
Employer in opposing it, claiming it had been eliminated
and that it was, in any event, so vague a preference
system as to be illusory as an Employer obligation." In
my view, this characterization does not faithfully reflect
the evidence.
The transcript shows that, at the beginning of the dis-
cussion on whether to make permanent the new proce-
dures, Horta raised a question about the five red-circle
drivers, pointing out that he had done so at the previous
meeting. President Wenham then interjected that the
derivation of the preference was hazy and that its "defi-
nition . . . has gone back and forth, and no one knows
who it is." Robert Cassidy, president of Local 92, chair-
man for the Ohio locals, and cochairman of the JAC, ex-
pressed his belief that the preference was still in effect in
Cleveland, and Wenham replied that "there is a ques-
tion" as to that.
Further discussion followed with Horta stating, as ear-
lier noted, his understanding that the December meeting
had put the red-circle drivers "on the rules." He went on
to say, obviously responding to Wenham's expression of
confusion, that he had been unable to definitively ascer-
tain the meaning of the red circle, and he continued: "If
I talk to five people, I get five different answers, so I
really don't know exactly what it is all about, but these
people, in the past have been red circle, they have been
notified as they were red circled, but just exactly what
the things are, I don't know." Wenham responded,
"Nobody knows."
Robert Cassidy then made a short speech which, in
the context of the remainder of the transcript, made it
reasonably clear that the red circle would in all likeli-
hood be preserved at the Cleveland terminal; I say this
because Cassidy, clearly a power at the conference,
ended his remarks with "if these people are not red-cir-
cled, there is no agreement with this company as far as
the local unions and the State of Ohio are concerned." 3
More discussion ensued, with other local representa-
tives announcing various positions on the procedures,
and the committee ultimately agreed on its decision, this
time expressly incorporating the red-circle preference at
Cleveland but still making the institution of the rules
somewhat less than permanent:
Based on the facts as presented, it [is] the decision
of this committee by majority vote that the request
of the Company for approval of its dispatch proce-
dure and work rules are [sic] hereby granted subject
to the beds, [sic] runs for Detroit and the red circle
at Local 407. However, this committee may review
this matter at the December, 1977 JAC hearing.
The claim that Horta violated the law by asserting
that the preference had been eliminated at the prior JAC
meeting is unformed; there is, as previously stated, no
"' Cassidy subsequently reiterated his position: [Elither the company
has agreed right now on the red circle or they don't have a dispatch pro-
cedure."
evidence to show that it had not been eliminated (dispite
Robert Cassidy's apparent belief to the contrary) and
there was every reason, as also earlier discussed, for
Horta to believe that it had been lost, temporarily, with
the conditional adoption of the new rules in December.
As for the claim on brief that Horta made "no effort to
restore" the preference, that is not so.
When the subject of the acceptability of the new pro-
cedures was opened, Horta was the first of the local rep-
resentatives to speak to that question, and he was specific
about the aspect of the procedures he wanted to discuss:
"I would like to bring up on the red circle, five people."
While it is true that Horta agreed that the subject was an
amorphous one (and in good conscience he could not
have done otherwise), his assertion" but these people, in
the past, have been red circled, and they have been noti-
fied as they were red circled," was an affimation of the
existence for the preferenc and a properly positive refu-
tation of Wenham's earlier attempt to cast doubt on their
status ("[N]othing, to my knowledge, has ever really
been approved on the red circle, there's nothing in writ-
ing except for this one letter.").
Although Horta made no further effort to urge the re-
tention of the red circle, it appears that he appropriately
deemed unnecessary any additional exhortation. While
it is impossible to faithfully recreate the tone of a multi-
party discussion from a bare transcript, the flow of the
conversation strongly suggests that the blunt statements
by Robert Cassidy, making the preference a precondition
to acceptance of the procedures, early on erased any
doubt that the red circle would be retained, and made
superfluous any extended discussion. Support for this
conclusion is found in the fact that the committee, in its
decision, did specify that the preference would be pre-
served.
For these reasons, I reject the complaint allegation
that at the June 1977 meeting, Horta, despite his earlier
promise, "took a contrary position at said meeting and
supported the Employer's proposal to eliminate Red
Circle preference."
The next allegation is that, after the June meeting,
Business Agent Moody "willfully misrepresented [to No-
vello] that Red Circle preference had been eliminated by
the June 1977 JAC decision." Novello testified that a
few days after the meeting he and steward David Tier-
ney went to the union hall and spoke to Moody:
At that time he told us that we had lost the hearing,
the JAC hearing. He said he was outvoted by all
the other locals. I asked him if they showed him
proof that they had took the vote like we had. And
he said, "Well, they were all waving papers."
1" Immediately after Moody had informed the committee that 19 of
the 39 drivers had voted against the rules, Horta stated that he and the
other 2 agents had received no written grievance about the rules; his re-
marks appear to refer to specific complaints or "bugs" arising from the
operation of the new procedure.
Is I am assuming here, for the sake of argument, that Horta, who had
not been Novello's official representative since February, was under a
legal obligation to promote the red-circle priority because of statements
earlier made by him to Novello, who had filed no specific grievance on
the matter
TRUCK DRIVERS UNION LOCAL NO. 407 63
On further examination, Novello became much more spe-
cific:
He said, "We had lost the red circle and we are out-
voted by all the other locals, all the business agents
of all the other locals."
The specificity was lost on cross-examination when, al-
though purporting to give the "entire substance of that
conversation as far as I can remember it," Novello re-
peated a version similar to that originally given, which
omitted any express reference to the red circle.
Moody testified that Novello came to his office,
"asked me what happened in Chicago, and I told him we
lost." He explained at the hearing that he had been refer-
ring to the entire dispatch procedure issue, "because that
was the only thing that I came in contact with. And that
is why I went to Chicago in the first place, to protest the
dispatch procedure." Moody did not recall that he made
any mention of the other union locals outvoting Re-
spondent or of the other representatives waving papers
around.
The question posed is whether Moody "willfully mis-
represented" to Novello that the red-circle preference
had been jettisoned. Initially, it is not easy to understand
why it would be thought that Moody would want to
"willfully" conceal the red-circle retention from No-
vello. Novello was an old-time union man. The record
does not indicate, and General Counsel does not advance
the argument, that Moody considered Novello a trouble-
maker or harbored any antagonism toward him.
Further, it must be recalled that Moody had only
become involved with the affairs of Wenham's Cleveland
drivers in February. Indeed, Moody was brand new at
the job; he had just been appointed as a business agent in
January 1977. How many other employees Moody repre-
sented between February and May 30, when he was
again rotated, does not appear on the record,' 6 but the
testimony does show that Respondent represented some
8,400 employees in total. Moody had no reason to know
that Novello was interested in the red-circle problem; he
testified, in fact that it was not until June hearing that he
had even become aware of the existence of the red
circle.
Although Novello first said that he discussed the red-
circle issue with Moody prior to the June hearing ("We
talked about it, that is what he was going to the hearing
for"), he immediately amended his position on being
asked the question again:
Q. Yes. We understand that you had a conversa-
tion with him after he came back from Chicago. Do
you specifically recall ever discussing the red circle
question with Moody prior to that conversation?
A. No, I don't specifically remember. I believe he
knew what he was going down there for.
I cannot believe that Moody, who made a good im-
pression as a witness, told Novello that, as Novello's
middle version had it, the Local "had lost the red
circle." There was no earthly reason for Moody to have
lied about the matter, especially since, as Moody surely
Ie His area was "the south side of Cleveland."
knew, the published committee decision clearly would
have told a different story. So far as the record shows,
Novello was known to Moody not as a red-circle man
but rather as one of the three-man committee who had
counted the ballots cast by the Local 407 drivers on the
question of whether they approved or disapproved the
whole set of new dispatch rules. Planly, when Novello
asked Moody what had happened at the hearing, Moody
reasonably understood the question as addressing the
new body of rules rather than the limited red-circle ex-
ception. When he told Novello that Respondent had
"lost," Moody obviously meant to say that the new rules
had been approved. 7
The Board holds: "[I]t is clear that negligent action or
nonaction of a union by itself will not be considered to
be arbitrary, irrelevant, invidious, or unfair so as to con-
stitute a breach of the duty of fair representation viola-
tive of the Act. Something more is required. "General
Truck Drivers, Chauffeurs and Helpers Union. Local No.
692, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America (Great Western Uni-
freight System, 209 NLRB 446, 448 (1976). ' The present
conduct hardly even rises (or falls) to the arguable level
of negligence. Certainly, in the circumstances, Moody
was eminently reasonable in believing that Novello was
inquiring about the new dispatch rules, rather than the
red-circle exception, when the latter asked what had
happened at the hearing. Furthermore, considering that
Moody was no longer representing the Cleveland em-
ployees, that he was busy when Novello came in, and, of
course, that he did not know of Novello's red-circle con-
nection, Moody cannot be faulted for the fact that it did
not occur to him to volunteer news to Novello about the
preservation of the exception, a matter which, as far as
the evidence shows, he had no reason to believe Novello
would be interested in.
I conclude, in sum, that the evidence falls far short of
establishing the claim that Moody "willfully misrepre-
sented" to Novello that the preference had been elimi-
nated. There was, at worst, a wholly reasonable misun-
derstanding by Moody of the thrust of Novello's inquiry.
The complaint next alleges that Respondent violated
the Act by failing and refusing "to seek Employer com-
pliance with the JAC Red Circle decisions of December
14, 1976, and June 14, 1977, and to preserve Red Circle
preference for employees Novello, Linski, Beals, and
Sperling."
Since I have found that the December 1976 JAC deci-
sion did not, in fact, preserve the preference, nothing
need be said on that score. Therefore, I address the ques-
tion of whether there was any actionable neglect of duty
after the June 1977 meeting.
The record shows that despite the committee decision
at that hearing, the Company took no steps to reinstatute
the red-circle practice at Cleveland. Novello, presumably
t1 In a December 1977 JAC hearing, at which a grievance subsequent-
ly filed by Novello was entertained, as discussed below, Novello gave an
account of his conversation with Moody which, like two of the three at
this hearing, contained no reference to the red circle.
IN In that important case, the assumed negligent failure of a union to
timely filed an "admittedly meritorious" grievance about an employee',
termination was held not to be a breach of the duty.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believing that the preference had been lost, also took no
action, at least immediately. The question which seems
to be presented is why William Cassidy, then assigned by
Local 407 to represent the Cleveland Wenham drivers,
failed to ensure compliance with the decision, and
whether he was at fault for that failure.
Cassidy did not testify at the hearing. I do not, howev-
er, believe that Respondent was under any obligation to
produce Cassidy so that he might offer an explanation
for his inaction. Normally, a union can be condemned
for inaction only when it has actual or constructive
notice that a situation exists which requires it to act. One
may justifiably conclude that, when Cassidy left the June
meeting, he properly assumed that Wenham would rein-
state the preference in accordance with the explicit deci-
sion of the committee. Because of the misunderstanding
between Novello and Moody, discussed above, neither
Novello nor the other red-circle men were aware that
they had any reason to complain to Cassidy about the
fact that the priority had not been reestablished. I do not
believe that, under governing precedent, Cassidy was
guilty of an unfair labor practice for failing to monitor
Wenham's compliance with the decision, in the absence
of any knowledge of, or grievance about, noncompli-
ance.
In August 1977, Novello filed a char.e with the
Board, essentially complaining that the oth( r Teamsters
locals had interfered with his rights by vo:ing for the
new uniform procedures. As a result of thi. charge, he
obtained transcripts of the December 1976 ax;d June 1977
JAC hearings, and he concluded from them that the red
circle had not been eliminated. t9 In September, he went
to see Horta at the union hall. According to his uncon-
tradicted testimony, he told Horta of his interpretation of
the transcripts, but Horta replied "that we were eliminat-
ed." Novello then asked Horta "to get the transcript so
we could go over it together and read them, and he said
he didn't have them handy, he didn't have to read them
to me, and he didn't have to answer to me." 2 0 This con-
versation, as I noted at the hearing, without demurrer by
General Counsel, was not embodied in the complaint as
a violation. 21
On September 19, 1977, Novello filed a grievance,
which he amended on the following day. In the griev-
ance as amended, Novello stated that he had discovered
on September 16 that the red circle had not been elimi-
nated, that Wenham had disregarded the preservation of
"9 Actually, in January and again in March, at Novello's request, the
Union had secured and shown to him a copy of the December transcript;
he read only the page which showed that Horta had raised the banner
for the red-circle drivers.
2o Novello was a fairly impressive witness, but, as indicated above
with reference to his shifting accounts of his conversation with Moody in
June, his partisanship may have affected his recollection at times. Given
Novello's statement to Horta that he had just read the transcripts, and
Horta's undoubted recollection that the red circle had been expressly
saved in the June decision, I find it quite difficult to imagine that Horta
would have nonetheless adamanttly insisted that the red-circle men "were
eliminated."
21 It would not completely surprise me, however, given Novello's
somewhat tendentious approach, if "he didn't have to read them to me
and he didn't have to answer to me" might not in fact have been more
politely phrased as something like "Bill Cassidy is now your business
agent and you should speak to him about the matter."
the preference, and that the proper remedy was his resto-
ration to the red-circle run and compensation for losses
sustained (including loss of revenue from his trailer,
which he normally leased to the company, but had not
done on the Detroit run). 22 The complaint alleges that,
in the course of processing this grievance, at meeting of
the JAC in December 1977, Horta "failed and refused to
prosecute in good faith employee Novello's grievance as
to elimination of Red Circle preference."
The contractual grievance procedure consists of four
stages, at each of which sits a joint committee. The
local-level joint committee reached a deadlock on Novel-
lo's August and September grievances and they were ad-
vanced to the state JAC. At that level, Novello appeared
at the October 11 meeting and his grievances were pre-
sented by his current business agent, Cassidy. A dead-
lock being reached at the state level, the grievances were
processed to a meeting of the Central States JAC in Chi-
cago in December 1977. Cassidy again represented No-
vello at that meeting, and Novello again appeared and
spoke at length. The Central States JAC also deadlocked
on the grievances, and they were appealed to the nation-
al committee which, on March 8, 1978, ordered that "the
claim of the Union be denied."
The issue raised by the complaint about this process is
narrow. As indicated above, it is that Horta, who was
present at the third-level meeting in December, and who
had not been the business agent representing Novello
since early February, "failed and refused to prosecute in
good faith" Novello's grievances at the third stage. The
complaint does not fault in any way the representation
afforded by William Cassidy, who was officially in
charge of presenting the grievances at the several steps;
at the instant hearing, Novello testified that he had "[n]o
complaints against Mr. Cassidy at all."
The transcript of the third-level hearing shows that
Novello's grievances were considered after there first
was had the "review" of the new dispatch procedures
which the June 1977 decision had scheduled for the De-
cember meeting. It is clear from the transcript that Horta
acted as an advocate of the Cleveland drivers' general
opposition to the new rules. While the rules themselves
were under consideration, Horta introduced Norvello,
who recited his version of the events preceding the hear-
ing. Horta urged the importance of the issue to the Local
407 members:
Mr. Chairman, for the record, Local 407 did pres-
ent a petition of all the members, and their names,
objecting to the change of the work rules. And this
is a very important issue. That come up many times
over, and we did present that petition.
Decision on the new rules as a whole was held in
abeyance, and the committee then turned to Novello's
grievances. When those grievances were first being dis-
cussed, Horta made a statement in order "to rebut" an
assertion made by a company representative.
22 Novello was, as earlier noted, the only red-circle man who filed a
grievance. In August, he had also filed a grievance challenging the new
rules on a more general theory.
TRUCK DRIVERS UNION LOCAL NO. 407 65
Subsequently, however, a conflict arose between
Horta and Novello. The discussion about the grievances
was a meandering one. At one point, when Novello was
being asked about the origin of the red circle, he men-
tioned that the preference had been established, with the
concurrence of the Company, by a business agent named
Merricheck years before. After other discussion, Horta
returned to that subject and said that when he "first took
over the barn," he had met with Novello and the Com-
pany's then-president to ascertain the meaning of the red
circle, "[a]nd still, to this day, I have never seen any-
thing written by John Merricheck on the red circle."
Novello disputed this assertion, and another business
agent asked them to avoid "an argument." Saying he
wanted to "clarify this," Horta reiterated that he had not
seen any dispatch procedure signed by Merricheck, and
further stated:
I have heard seven different ways the way the red
circle operates, and I still, to this day-you can ask
all five of them. They have got different versions of
the red circle operation, and I don't know what the
hell it is.
It should be spelled out here that Novello's principal
grievance, claiming that Wenham had wrongfully elimi-
nated the red circle, had been filed on September 19; in
that grievance, after detailing his substantive claim, he
asked for compensation for loss of revenue from his trail-
er. The following day, on the advice of an agent of the
Board, Novello filed another grievance form "[t]o sup-
plement last 8 lines of grievance (a) 9/19/77"; in this
supplement, he explained why he had bid on the Detroit
run, and asked, as an additional remedy, for any loss of
wages. For some reason, the two grievances were sepa-
rately docketed by the JAC as, respectively, cases 57 and
58. The transcript shows that at the time Horta made the
statements about Merricheck and the lack of definition of
the red circle, set out above, the committee had already
disposed of case 57 by deadlocking on it, and was in the
process of discussing case 58, which, as was noted at the
time, was "[b]asically the same" grievance already con-
sidered and deadlocked.
There is somewhat more body to this allegation than
the preceding ones, but not enough to make Horta's re-
marks an unfair labor practice. I first take note of the
principle declared in Truck Drivers, Oil Drivers and Fill-
ing Station and Platform Workers Local No. 705, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Ielpers of America (Associated Transport, Inc.),
209 NLRB 292 (1974), review denied 532 F.2d 1169 (7th
Cir. 1976). There the Board held:
In our view, once Respondent undertook to pres-
ent Aaron Kesner's grievance to the Joint Griev-
ance Board, it became obligated to represent him
fully and fairly. This obligation included the duty to
act as advocate for the grievant, which here Heim
clearly did not do. To the contrary, by saying that
he did not believe Aaron Kesner's claim was valid,
Heim underminded Kesner's case before the Joint
Grievance Board. In these circumstances, we are
constrained to conclude and find, contrary to the
Administrative Law Judge, that by this conduct Re-
spondent breached its duty of fair representation
and restrained and coerced Kesner in the exercise of
his Section 7 rights, thereby violating Section
8(b)(1)(A) of the Act.
Expanding on the Board's rationale for the foregoing
conclusion, the Court of Appeals for the Seventh Cir-
cuit, in approving the Board's decision, noted the union's
contention that a union "may in good faith refuse to
process a member's grievance altogether," but relied on
"venerable tort law that purporting to take action where
duty is nonexistent creates in itself certain duties." The
court went on to say (532 F.2d at 1175):
It is one thing for a grievant to attempt to pursue
his remedy without assistance and opposed only by
one adversary. When that situation is compounded
by two opponents, one of whom is supposedly his
"own people," the bearing on the likelihood of his
success assumes substantial significance. When one's
own representative who has been willing to assume
that status proclaims a lack of merit, it is indeed
likely to be a coup de grace to the claim.
In my view, the doctrine of Associated Transport23
does not control the facts of this case. The court pointed
out in affirming the Board that it was "not persuaded
that the Board has created a per se rule." 532 F.2d at
1174. Consideration of all the circumstances here lead me
to conclude that Horta's remarks did not constitute mis-
feasance of duty amounting to an unfair labor practice.
It was probably bad form for Horta to engage in an
argument with Novello about whether former Business
Agent Merricheck had ever signed a memorandum about
the red circle, but that was a technical matter of little
consequence. 24 Horta's described confusion about "the
way the red circle operates," concluding with his
remark, "I don't know what the hell it is," needs, I think,
to be considered in context.
For one thing it was probably an honest, and not un-
justifiable, expression of his views. For another Business
Agent Cassidy had already, in connection with case 57,
made a lengthy argument on Novello's behalf and had
presented Company documents acknowledging the exist-
ence of the preference. When the committee caucused on
case 57, there certainly was no real question before it as
to whether the red-circle priority had indeed existed; 25
nonetheless, the committee had deadlocked on the griev-
ance. That result having been already reached at the
time the subsequent discussion of case 58 wandered into
the subject of the origin of the preference, it seems un-
derstandable that Horta might have assumed that since
the committee had not found in Novello's favor even
23 The premises of this interesting decision, and its implications, are
probably worthy of exploration in a law review note.
24 The transcript of the JAC hearing shows that Novello subsequently
conceded that he had been mistaken on this point, having intended to
refer to a business agent named "Madusky" (probably "Majewski").
2n In fact, the same committee had ordered the retention of the prefer-
ence in its June 1977 decision. And, prior to the caucus on case 57, Com-
pany Representative Fuller had stated, "As to the red-circle, we did
agree that there was a red-circle that existed. We had no way to define it
It existed There were four people on it."
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when there had been no dispute, in case 57, about the
prior existence of the preference, his brief outburst about
the lack of definition of the preference could do Novello
no harm. Indeed, Horta had made much the same sort of
statement at the June meeting, but it had obviously not
affected the committee, since, at that meeting, the prefer-
ence had been expressly maintained.
There was no indication at all in the discussion of case
58 which might have suggested to Horta that the com-
mittee would consider overruling the position it had just
taken as to case 57.28 During the discussion of case 57,
Horta had said nothing to counter Cassidy's contention
that "Mr. Novello and the other red circle men should
be placed back on their red circle runs, and that the
claim of the union be upheld in regard to the monetary
issue," or contrary to Cassidy's related arguments about
the priority.2 7 Further, Horta said nothing to contradict
or detract from Novello's statement, made during the
discussion of case 57, that the preference had been in the
past approved "in writing here signed by the president
with the business agent there," although that was the
narrow are of contention to which he subsequently ad-
verted in the discussion which followed the vote on case
57.
Thus, in the circumstances, I do not believe that
Horta's contained questioning of the boundaries (not the
existence) of the preference constituted a failure by Re-
spondent to prosecute the grievance in good faith. Cas-
sidy had already done an estimable job of representing
Novello; the merits of the grievance had, to all intents
and purposes, already been passed upon at the time that
Horta spoke out; and his casual candor about his own
confusion with respect to the contours of the preference
must have seemed to him to be of little moment in the
given situation.2 8
In the entire context, Horta's remarks appear to be an
inadequate basis for concluding that Respondent thereby
breached its duty of fair representation. "[P]oor judg-
r. ent" does not suffice to establish a breach of duty, King
Soopers, Inc., 222 NLRB 1011, 1019 (1976). Horta's con-
duct pales by comparison with that described in Team-
.sters, Chauffeurs, Warehousemen and Helpers Local Union
,No. 542, International Brotherhood of Teamsters, Chauf-
"2 When case 57 was being deliberated, Novello had agreed with a
business agent for Local 910 that "the decision handed down on this will
settle all three cases" and that they were "all conjuncted into one."
'7 Cassidy even made the argument, repeated here by General Coun-
sel. but with which I disagree, that his "understanding" from the tran-
script of the December 1976 JAC hearing was that "the red circle men of
417 should have remained in effect "
2 Applying the court's test, Novello did not alone face "two oppo-
nents,' since Cassidy had staunchly advocated his case. Further, Horta
was niot Novell"'s "own representative who has been willing to assume
that status." Finally, Horta did not "proclaim a lack of merit" in Novel-
lo's claim that ihe preference should have been restored after the June
meeting; he only expressed his own confusion about the meets and
bounds of the preference, and only after the committee had already dead-
locked on he merits of the claim
feurs, Warehousemen and Helpers of America (Golden Hill
Convalescent Hospital), 223 NLRB 533 (1976), where the
panel (Member Jenkins dissenting) tound no violation de-
spite the fact that the attorney for the union cross-exam-
ined witnesses independently called by the grievants and
also refused to adduce certain material evidence which
would have reflected adversely on the union. The
Board's appraisal of the efforts of the union in Truck
Drivers, Helpers, Taxicab Drivers, Garage Employees and
Airport Employees Local Union No. 355, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeur, , Ware-
housemen and Helpers of America (Monarch Institutional
Foods), 229 NLRB 1319, 1321 (1977), may be, at worst,
an apt description of the Union's performance here:
"Thus, the Respondent's effort on [Novello's] behalf-
though perhaps not optimal-rose above a perfunctory
and unjustified treatment of his problem and thereby
comported with the duty of fair representation."
I might add that there is a substantial basis for believ-
ing that the final resolution of Novello's grievance was
erroneous. It seems clear that after the June 1977 JAC
decision, the Company, pursuant to the committee's man-
date, should have restored the red-circle status of the
four men, at least until the JAC abolished that preference
in December.29 That ultimate question, however, does
not fall within the jurisdiction of the Board.
Accordingly, I conclude that the complaint, in its en-
tirety, should be dismissed.
CONCLUSIONS OF LAW
1. Wenham Transportation, Inc., is an employer en-
gaged in commerce within the meaning of the Act.
2. The Respondent, Truck Drivers Union Local No.
407, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
the Act.
3. Respondent has not violated the Act in any respect
alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, I issue the following recommended:
ORDER3 0
The complaint is hereby dismissed.
a9 The only lingering doubt relates to the fact that Novello had suc-
cessfully bid on the Detroit run. The evidence, sketchy though it is, sug-
gests the possibility that this may have been considered a bar to his resto-
ration to red-circle status.
'0 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.