Auto Convoy Co.

National Labor Relations Board - Board Decisions

Sep 13, 1983

267 N.L.R.B. 1192 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Auto Convoy Co. and Jesse S. Cabrera
Teamsters, Chauffeurs, Warehousemen, Helpers and
Food Processors, Local Union 657, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America and Jesse S. Cabrera. Cases 23-
CA-8818 and 23-CB-2632
13 September 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 8 March 1983 Administrative Law Judge
Donald R. Holley issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondents each filed an answering brief to the Gen-
eral Counsel's 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
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 alleged in the complaint that Respondent
Union violated Sec. 8(b)X)(A) of the Act by threatening to terminate
Jesse Cabrera from his job as the Union's business agent if Cabrera per-
sisted in seeking a position on the Teamsters Joint Council. Since Cabrera
was an employee of the Union when that threat occurred, we agree with
the Administrative Law Judge that the unfair labor practice alleged
against the Union, if any, would be circumscribed by Sec. 8(a)(l) of the
Act, and not Sec. 8(b)(1)(A) as the General Counsel has alleged. Accord-
ingly, we adopt the Administrative Law Judge's dismissal of this com-
plaint allegation on the basis that the General Counsel has not properly
framed the affirmative case to support a finding of any unfair labor prac-
tice. Accord: Typographical Union Local 650 (The Daily Breeze), 221
NLRB 1048., fn. 1 (1975).
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge:
Upon charges filed by Jesse Cabrera (herein called Ca-
brera) against Teamsters, Chauffeurs, Warehousemen,
Helpers and Food Processors, Local Union 657, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (herein
called Respondent Union or Local 657) and Auto
Convoy Co. (herein called Respondent Employer or
Auto Convoy), the Regional Director for Region 23 of
the National Labor Relations Board (herein called the
Board) issued a consolidated complaint on April 28,
1982, alleging, in substance, that: Respondent Union vio-
lated Section 8(b)(l)(A) and (2) of the National Labor
Relations Act, as amended (herein called the Act), in
January 1982 by threatening to fire Cabrera from his job
as a business agent of Local 657 if he ran for union
office, and by thereafter causing Auto Convoy to termi-
nate Cabrera from a truckdriver position because he had
run for and been elected to the above-mentioned union
office; and that Respondent Employer violated Section
8(a)(l) and (3) of the Act by discharging Cabrera from
its employ at Respondent Union's request.
This case was heard in San Antonio, Texas, on Sep-
tember 30, 1982. All parties appeared and were afforded
full opportunity to participate. Upon the entire record,
including post-hearing briefs filed by the parties which
have been carefully considered, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Auto Convoy Co., is limited partnership, with offices
and places of business in various States of the United
States and a place of business in San Antonio, Texas, is
engaged in the shipping, transporting, and interlining by
truck of new automobiles and trucks in intrastate and
interstate commerce. During the 12-month period pre-
ceding issuance of the complaint herein, its gross revenue
exceeded $500,000 and it received in excess of $50,000
for transporting vehicles directly to and from points lo-
cated outside the State of Texas. It is admitted, and I
find, that Respondent Employer is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
11. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that Respondent Union is a
labor organization within the meaning of Section 2(5) of
the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
Auto Convoy has terminals at nine locations in three
States, i.e., Louisiana, Oklahoma, and Texas. Its terminals
located at San Antonio and Houston, Texas, are the only
operations immediately involved in this proceeding.
Respondent Employer is a party to the National
Master Automobile Transporters Agreement (herein
called the Agreement).' Its truckdrivers at the various
terminals are represented by different Teamster Locals.
Thus, the record reveals that the drivers at the San An-
' The Agreement was placed in the record as G.C. Exh. 12.
267 NLRB No. 97
1192
AUTO CONVOY CO.
tonio terminal are represented by Respondent Union,
Local 657, and that the drivers at its Houston, Texas, ter-
minal are represented by Teamsters Local 988. At all
times material, Raleigh Mull, Jr., has been the president
and business manager of Respondent Union, and Preston
Ketchman has been its secretary-treasurer. 2
2. Cabrera's employment as a business agent and
leave of absence
Jesse Cabrera was hired by Auto Convoy as a truck-
driver on February 28, 1974. In August 1980, while in
layoff status, he was offered and accepted a position as a
business agent with Respondent Union.
Having accepted the business agent position, it was
necessary for Cabrera to obtain a leave of absence from
Auto Convoy to protect his right to return to driving if
he decided he did not want to work for Respondent
Union on a regular basis. Article 46 of the above-men-
tioned Agreement defines the rights of the parties in
leave of absence situations stating (in pertinent part at p.
104):
Absence Section 1. Time Off for Union Activi-
ties: The Employer agrees to grant necessary and
reasonable time off, without discrimination, without
pay and without loss of seniority, to any employee
designated by the Union in writing for a period not
to exceed sixty (60) days to attend a labor conven-
tion or to service on official Union business.
Section 2. Leave of Absence: Any employee de-
siring leave of absence from his employment shall
secure written permission from both the Local
Union and Employer. The maximum leave of ab-
sence shall be for a total of one hundred and eighty
(180) days.
During the period of absence, the employee shall
not engage in gainful employment in the same in-
dustry in classification covered by this Agreement.
Failure to comply with this provision shall result in
the complete loss of seniority rights for the employ-
ees involved. Inability to work because of proven
sickness or injury shall not result in the loss of se-
niority rights. The employee must make suitable ar-
rangements for continuation of Health and Welfare
and Pension payments before the leave may be ap-
proved by either Local Union or Employer.
In 1980, R. Fischer, Jr., was Respondent Employer's
director of labor relations. By letter dated August 13,
1980, Local 657's business manager, Mull, requested that
Cabrera be given a 90-day leave of absence so he could
work for Respondent Union.3 By return letter dated
August 15, 1980, Fisher granted the request.4 On No-
2 It is admitted, and I find, that Mull and Ketchman are, and have
been at all times material, agents of Respondent Union within the mean-
ing of Sec. 2(13) of the Act. In addition, it is admitted, and I find, that C.
Forest Guest is, and has been at all times material, a supervisor and an
agent of Respondent Employer within the meaning of Sec. 2(i 1) and (13)
of the Act.
3 G.C. Exh. 2.
' G.C. Exh. 3.
vember 10, 1980, Mull requested an additional 90-day
leave of absence of Cabrera. 5 By letter from Fisher to
Mull dated November 13, Fisher granted the request, in-
dicating the new 90-day leave of absence would start on
November 10, 1980. Significantly, Fisher closed his No-
vember 13 letter stating: 6
This will account for the 180 days leave of absence
which can be granted under the contract. If at the
end of this 90 day leave of absence additional time
would be required same will have to be cleared by
an appropriate committee.
By letter dated January 20, 1981, Mull requested that
Forest Guest, then Respondent Employer's assistant gen-
eral manager, extend Cabrera's leave of absence an addi-
tional 90 days. Mull added a postscript which stated:7
"Forrest I would appreciate your consideration of this. It
would be a favor to me."
With specific regard to Cabrera's situation, Guest testi-
fied that he spoke with Cabrera, who was policing the
Agreement at Auto Convoy during 1981, several times
about his leave of absence indicating to Cabrera that he
needed to "get his house in order and get the matter
cleared up." According to Guest, the last such discussion
occurred on November 3 or 4, 1981, at which time he
contends he informed Cabrera they were both in techni-
cal error because Cabrera had not gone through the ap-
propriate committee structure to extend his leave of ab-
sence. Guest claims Cabrera laughed at the time and said
he would take care of it. 8
On December 31, 1981, Guest sent Cabrera a certified
letter (copy to Mull), the body of which stated:9
It has come to our attention that the leave of ab-
sence granted to you has long passed applicable
terms and problems are now arising with your
status as far as Health Welfare and Pension and
other considerations.
Therefore, please be informed by this letter that
after January 15, 1982 the Company will no longer
recognize your leave of absence. Please make neces-
sary arrangements and appropriate decisions regard-
ing your employment status after January 15, 1982.
3. The Joint Council 58 election
On January 7, 1982, seven elected offices of Respond-
ent Union were preparing to go to Houston, Texas, on
January 8, where they were to vote for candidates for
office on Joint Council 58, a body which coordinates
certain matters of union interest such as relations with
trucking companies, like Auto Convoy, which conduct
business in a number of locations. Mull credibly testified
5 G.C. Exh. 4.
e G.C. Exh. 5
7 G.C. Exh. 6.
8 While the Agreement is silent on the matter of leave of absence ex-
ceeding 180 days, Guest explained that Respondent Employer and Re-
spondent Union cannot reach supplemental agreements during the term
of the Agreement without approval of a superior joint body such as the
Joint Area Arbitration Committee.
9 G.C. Exh. 8
1193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Joe Morgan, an International union vice president
and the director of the Southern Conference of Team-
sters, had indicated to him prior to the time under dis-
cussion that he felt each of the seven local unions which
comprised Joint Council 58 should have representation
on the elected body of the council, but that Local 988
had no elected official on Joint Council 58 while Mull's
local had two i.e., Mull and Cabrera (both trustees). Mull
indicated he agreed with Morgan and promised to seek
to rectify the situation.
It is undisputed that several days prior to the Joint
Council 58 election which was held on January 8, Mull
indicated to Cabrera that he felt he should give up his
seat on the executive board of Joint Council 58 to enable
Mull and the principal officers of the seven member
locals, including the president of Local 988, Richard
Hammond, to occupy seats on the council.
According to Cabrera, he met with Preston Ketch-
man, secretary-treasurer of Local 657 on January 7 and
Ketchman agreed he would nominate Cabrera for reelec-
tion to a trustee position on Joint Council 58 on the fol-
lowing day. Cabrera claims he subsequently telephoned a
member of the local, Andy Garza, who had announced
his intention to run for the position of president of Local
657 in the upcoming election of Respondent Union offi-
cers and asked him to second his nomination. Garza re-
fused. to
On January 8, Cabrera, Ketchum, and Garza were to
ride in a Local 657 vehicle from San Antonio to Hous-
ton. According to Cabrera, while he and Ketchman were
on their way to pick up Garza, Ketchman told him that
Mull had told him he was going to fire Cabrera if he ran
for a seat on Joint Council 58."1 When all the delegates
arrived in Houston, they learned that four individuals
nominated for positions on Joint Council 58 (the ones
seeking the positions of president, vice president, record-
ing secretary, and treasurer) were unopposed. Four per-
sons were nominated for the remaining three trustee po-
sitions. They were: Cabrera, Mull, Jerry Cherry, and
Richard Hammond.
Shortly before the voting started on January 8, Ca-
brera asked to speak with Mull. During the enusing con-
versation, Cabrera told Mull he had heard he was going
to fire him and indicated that he had not intended to run,
but he was going to because of the threat. Mull denied
he had told anyone he was going to fire Cabrera, but
told him they did have some problems and he thought
they needed to talk about them. Cabrera then asked if
Mull was against him because he was Mexican and stated
he would make it easy on Mull that he would quit.' 2
'0 Cabrera testified Garza told him Mull had cautioned him to stay out
of the situation.
It Ketchman testified he did not agree to nominate Cabrera on Janu-
ary 7, and that he merely told him on January 8 that Mull was unhappy
with him and he had better straighten his act out. I credit Cabrera as he
was by far the more impressive witness.
12 Cabrera testified Mull admitted during the conversation that he was
thinking about firing him. Mull was the more impressive witness and I
credit his version of the conversation. Despite the fact that I credit
Mull's account of the conversation under discussion, I am convinced that
Mull had previously told Ketchman he was going to fire Cabrera if he
ran, and I am convinced that Ketchman conveyed the threat to Cabrera
as the latter claims.
When Cabrera and Mull reentered the room where the
voting was to occur, Mull requested the floor and in-
formed the delegates that he felt Local 988 should have
representation on the executive committee and he there-
fore desired that those who were inclined to vote for
him vote for the president of Local 988, Hammon. The
election was held and Cabrera, Cherry, and Hammond
were elected trustees.' 3
After the election, Mull thanked Cabrera for doing a
job on him. Cabrera explained he would not have done it
if he had not been threatened with being fired. Mull then
suggested they go to talk to Ketchman, who was stand-
ing nearby. When they approached Ketchman, Mull
asked if he had told Cabrera that he (Mull) had said he
would fire him if he ran for trustee. Cabrera claims
Ketchman admitted he had made the statement, and Mull
claims Ketchman said he had not made the statement. I
credit Mull. 4
4. Cabrera's return to Auto Convoy
When Cabrera returned to San Antonio after the Joint
Council 58 election, he telephoned Guest, informed him
he was leaving Local 675 for political reasons, and asked
if he could return to Auto Convoy as a driver. Guest in-
dicated he could after he satisfied ICC requirements, i.e.,
took a physical exam and passed a driver's test.
On January 10, 1982, Cabrera went to Respondent
Union and turned in his credit cards and the keys to his
union automobile. On January 11 he reported for work
as a driver at Respondent Employer's San Antonio ter-
minal.
Bobby Denson, Local 657's steward at Auto Convoy's
San Antonio terminal, testified that, when Cabrera re-
turned to work, the drivers with more seniority than Ca-
brera were sympathetic to him, but the drivers with less
seniority complained to him. He testified he mentioned
the complaints to Mull and claims Mull told him to let it
lay and see where it went. While all of Auto Convoy's
San Antonio drivers worked during the week of January
11, 1982, several drivers, including one Charles Salinas
who was immediately below Cabrera on Respondent
Employer's systemwide seniority roster, were informed
on Friday, January 15, that they would be laid off effec-
tive Monday, January 18. Denson testified that on
Monday, January 18, Salinas approached him and asked
if he could file a greivance because Cabrera was working
while he was not. Denson claims he gave Salinas his in-
terpretation of the Agreement and told him he could file
a grievance if he wanted to. Thereafter, Denson and Sa-
linas went to the Local 657 hall were Mull listened to
I For some unexplained reason, Hammond indicated before he was in-
stalled as a trustee that he did not desire to be a trustee.
14 Ketchman gave a third version. He testified he told Cabrera on Jan-
uary 7 that Mull was upset and that he (Cabrera) had better clean up his
act, and that he told Mull and Cabrera after the election that he had told
Cabrera he had better clean up his act. I credit Cabrera's assertion that
Ketchman agreed to nominate him for trustee on January 7, and as indi-
cated, supro, I credit Cabrera's assertion that he was told Mull had threat-
ened to fire him if he ran for trustee. Having concluded that Ketchman's
testimony concerning the above matters is unreliable, I conclude his ac-
count of the above-described conversation is also unreliable. As between
Cabrera and Mull, I found Mull to be the more impressive witness.
1194
AUTO CONVOY CO.
Salinas and thereafter informed him what the contract
said, and told him he could file a grievance if he wanted
to.1 5 When Salinas left Local 657 after discussing his sit-
uation with Mull, he took a blank grievance form with
him. He completed the form and filed a grievance placed
in the record as General Counsel's Exhibit 10 on January
21, dating it January 18, 1982, so he could claim loss of
wages for the entire week of January 18.
During the week of January 11, 1982, Cabrera's return
to work after 17 months with full seniority was also dis-
cussed at Local 988 in Houston. Thus, the record reveals
that a driver named Fulmer Duckworth, then temporari-
ly on layoff who was working at Local 988 as an orga-
nizer under the supervisor of the Local's president Ham-
mond, asked Local 988 business agent Raymond Canales
if it was true that Cabrera had returned to work after 17
months with his full seniority. Canales testified he told
Duckworth he did not know, but he would contact Re-
spondent Employer's Roger Whitesides (Guest's assist-
ant) and find out. Canales testified he then telephoned
Whitesides, learned that Duckworth's suspicion was true,
and he (Canales) informed Whitesides the employees did
not feel the Agreement permitted such reinstatement and
that grievances would be filed. Thereafter, on January
22, 1982, Duckworth filed a grievance protesting Ca-
brera's reinstatement with full seniority.
Guest testified that his assistant, Whitesides, informed
him on Monday, January 18, that he had received calls
from business agents, terminal managers, and employees
about the Cabrera situation and it appeared grievances
would be filed. Guest claims Whitesides' comments
caused him to review Cabrera's files and that review of
them convinced him he had erred by permitting Cabrera
to return to work with his full seniority. He testified he
telephoned Mull and informed him he had heard griev-
ances were to be filed over the Cabrera reinstatement.
During the conversation Mull informed Guest that Sali-
nas intended to file a grievance. Guest thereafter sought
legal adivce by calling Albert Matheson, an employer as-
sociation attorney, who advised him to terminate Ca-
brera to avoid economic consequences. Guest then called
Mull back and informed him he was terminating Cabrera.
By letter dated January 19, 1982, which was handed to
Cabrera when he returned from a trip to El Paso, Texas,
on January 22, Guest informed Cabrera his leave of ab-
sence was invalid, he had lost his seniority, and that he
was terminated effective January 20, 1982. 7
After being notified he was terminated, Cabrera tele-
phoned Mull to advise him he was filing a grievance to
protest the termination. On January 24, 1982, before he
actually filed the grievance on January 26, Cabrera asked
Mull if he could have his grievance heard by the griev-
ance committee which was to commence hearing cases
in Florida on January 25. Mull advised him notice to the
05 Denson placed the date of the discussion at Respondent Union as
January 18 while Salinas claimed it occurred on January 20. Mull testi-
fied he was aware that Salinas was considering filing a grievance when
Guest telephone him on January 18 or 19. 1 find the conversation in ques-
tion occurred on January 18 as claimed by Denson.
iS GC. Exh. 11. The original grievances filed by Salinas and Duck-
worth were completed by hand Both were subsequently typed for ad-
ministrative reasons.
17 G.C. Exh 9.
other local unions affected would have to be given and
he would be unable to get the grievance on the agenda
of the committee meeting in Florida.'
5. The disposition of Cabrera's grievance
Cabrera's grievance protesting his termination by Auto
Convoy was heard in Brownsville, Texas, by the South-
ern Conference Automobile Transporters Grievance
Committee during their session which extended from
April 5 through April 7, 1982. Three union representa-
tives and three employer representatives sat on the griev-
ance committee. While none of the representatives were
directly affiliated with Auto Convoy, Local 657, or
Local 988, Albert Matheson, the attorney contacted by
Guest before he decided to terminate Cabrera, chaired
the committee. The issue considered was whether article
46, section 2, of the Agreement entitled Cabrera to rein-
statement with full seniority. Mull, accompanied by Ca-
brera and Denson, represented Cabrera, and Guest pre-
sented Auto Convoy's case. Cabrera was permitted to
participate in the proceeding and agreed at the conclu-
sion of the meeting that he had been fairly represented.
The decision of the committee was as follows: 9
DECISION:
Based upon the facts and evidence presented in
this case, the Committee finds that Mr. Cabrera
did not have a valid leave of absence at the time
he sought to return to work in January, 1982 be-
cause he had not compiled with Section 2 of Ar-
ticle 46 of the contract.
In view of all the facts, including the fact that
there was some confusion as to the proper way
to seek a leave of absence, the Committee rules
that Mr. Cabrera should be placed on a preferen-
tial list for hire as a driver by the Company.
When hired, he shall have his original date of
hire solely for fringe benefit purposes. His senior-
ity for all other purposes shall be his first day
worked as a driver when hired from a preferen-
tial list.
6. Contentions of the parties
The General Counsel contends the facts in this case
reveal that Respondent Union violated Section 8(bX)(IA)
and (2) by threatening to fire Cabrera from his business
agent position on January 7 and 8 because he elected to
run for the position of trustee of Joint Council 58, and
by thereafter retaliating when Cabrera did seek and win
election to such office by causing Auto Convoy to dis-
charge him.
In addition to claiming that the General Counsel has
offered insufficient evidence to prove any of the viola-
tions alleged, Respondent Union contends no violation
based on the January 7 and 8 events should be found be-
cause: (1) Cabrera was not engaged in protected activity
i' Mull credibly testified that as seniority at Auto Convoy is system-
wide, notice of all grievances involving seniority must be sent to all other
locals which represented Auto Convoy drivers.
i9 See Resp. U. Exh. 5. p. 3.
1195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when he sought to be elected as a trustee of Joint Coun-
cil 58; (2) As Cabrera was an employee of Local 657 on
January 7 and 8, any violation by Local 657 occurred in
its capacity as an employer and no violation of Section
8(b) of the Act should be found. Finally, Respondent
Union contends the Board should defer to the April de-
cision rendered pursuant to the mandatory grievance
procedure of the Agreement.
Respondent Employer contends that the record re-
veals it discharged Cabrera because he had no seniority
rights under the Agreement when he was reinstated on
January 11, 1982. It further claims that the General
Counsel has failed to adduce evidence which reveals it
fired Cabrera at Local 657's request as alleged.
II. ANALYSIS
A. The Deferral Issue
While the Board will defer to the grievance-arbitration
procedure of the parties if (1) the proceedings appear to
have been fair and regular, (2) all parties have agreed to
be bound by the decision, and (3) the decision is not re-
pugnant to the policies and purposes of the Act,2 0 in
Raytheon Co., 140 NLRB 883 (1963), the Board modified
the described doctrine to also require that the arbitrator
has considered the unfair labor practice(s) in his decision
before deferral is appropriate.
Deferral would clearly not be appropriate in the in-
stant situation for two reasons. First, the record reveals
that attorney Albert Matheson, who chaired the griev-
ance committee, was consulted by Auto Convoy before
Cabrera was discharged and he subsequently failed to
excuse himself from the committee when the legality of
Cabrera's discharge was considered by the committee. In
the circumstances, it appears the proceedings were not
"fair and regular." Second, the only issue considered by
the grievance committee was whether Cabrera was enti-
tled by the Agreement to reinstatement with full seniori-
ty on January 11, 1982; the grievance committee did not
decide whether Respondent Union requested that the
employee be discharged because he had elected, contrary
to Mull's wishes, to run for the position of trustee of
Joint Council 58.
For the reasons stated, I find that deferral to the April
decision of the Southern Confrence Automobile Trans-
porters Grievance Committee would be inappropriate.
B. The Threat to Discharge Issue
As indicated, supra, I have found that Respondent
Union's secretary-treasurer, Ketchman, told Cabrera on
January 7, 1982, that business manager Mull had stated
he would fire Cabrera from his business agent position if
he ran for trustee of Joint Council 58. I have further
found that Mull denied, rather than reiterated the threat,
on January 8.
With respect to Respondent Union's claim that Ca-
brera was not engaging in protected activity when he
elected to run for the trustee position, Local 657 relies
upon the Board's decision in Shenago Inc., 237 NLRB
1355. There, the Board indicated that issues such as the
20
Spielberg Mfg. Co., 112 NLRB 1080 (1955).
one presented require ". . . balancing the employee's
Section 7 right to engage in internal union affairs against
the legitimacy of the union interest at stake in the par-
ticular case."
Mull credibly indicated during his testimony that he
asked Cabrera not to run for the trustee position on the
Joint Council 58 because the principal officers of the
member locals normally served on the executive commit-
tee of the council and Local 988, the largest local in the
council, had no representation on the council while
Local 657 had two representatives on it. In the circum-
stances, I find that Mull had a legitimate interest in at-
tempting to cause Cabrera to refrain from running for
the trustee position. While Cabrera, as a Local 657 dele-
gate, had a right to participate in the affairs of Joint
Council 58,21 he was, in his position as business agent,
obligated to consider the legitimate opinions and advice
of his superior, Business Manager Mull. It appears he
chose not to consider Mull's opinion and advice on the
Joint Council 58 matter and was, therefore, in a sense, an
insubordinate employee.
In sum, having balanced Cabrera's right to seek elec-
tion to a position on Joint Council 58 against Respondent
Union's legitimate interest in seeking to place a Local
988 representative in the trustee position sought by Ca-
brera, I conclude Respondent Union's interest outweighs
Cabrera's interest in seeking the trustee position. I there-
fore find that by threatening to fire Cabrera if he persist-
ed in his effort to gain election to the trustee position
under discussion, Respondent Union did not violate Sec-
tion 8(b)(1)(A) and (2) of the Act as alleged. Assuming,
arguendo, Respondent Union had no legitimate interest
which would justify its attempt to cause Cabrera not to
seek the position under discussion by threatening him
with discharge, I would nevertheless refrain from finding
the violation alleged as the threat was to fire him from
his employment by Local 657. In my view, Respondent
Union correctly argues the violation, if any, would have
been an 8(a) rather than an 8(b) violation.
C. The Alleged Respondent Union Request That Auto
Convoy Terminate Cabrera
In the absence of direct evidence which would reveal
that Mull unlawfully requested that Cabrera be dis-
charged by Auto Convoy, the General Counsel claims I
should find that Mull's threat to fire Cabrera if he ran for
the Joint Council 58 trustee position, viewed in conjunc-
tion with record evidence which reveals that neither
Mull nor Guest knew when the latter decided to fire Ca-
brera, that Salines was going to file a grievance, and
other evidence which reveals that Mull and Guest were
close friends warrants an inference that Cabrera was ter-
minated at Mull's request because he ran for and ob-
tained the trustee position. I find no merit in his conten-
tions.
The actual picture portrayed by the instant record is
one which Mull threatened to fire Cabrera from his busi-
ness agent's position rather than any position he held
21 The record reveals that Cabrera was an elected trustee of Local
657, and was therefore one of the delegates to Joint Council 58.
1196
AUTO CONVOY CO.
with Auto Convoy. As I have found, supra, Salinas vi-
sisted Mull on Monday. January 18, rather than Wednes-
day, January 20, to indicate that he was inclined to file a
grievance because Cabrera, the man immediately above
him on the seniority roster, was reinstated with full se-
niority. Finally, while Guest admitted that he and Mull
enjoyed a close business relationship, he also indicated
they were not social friends. In short, the evidence of-
fered by the General Counsel does not support the infer-
ences he would have me make.
In the final analysis, the record simply reveals that
Mull told Guest, before the latter finalized his decision to
terminate Cabrera, that Salinas intended to file a griev-
ance to protest the fact that Cabrera was reinstated with
full seniority after he had been a business agent for 17
months. The record fails to reveal that Mull said or did
anything further to cause Auto Convoy to terminate Ca-
brera. In the circumstances, I find that the General
Counsel has failed to offer sufficient evidence to show
that Mull or anyone in Local 657 requsted that Auto
Convoy fire Cabrera. 22
D. The Alleged 8(a)(1) and (3) Violation by Auto
Con voy
The consolidated complaint alleges that Respondent
Employer discharged Cabrera on January 20, 1982, be-
cause Respondent Union, through Mull, complained
about the reinstatement of Cabrera and warned Auto
Convoy that grievance would be filed regarding Ca-
brera's reinstatement.
As indicated above, the General Counsel failed to
offer any direct evidence which would reveal that Mull
complained to anyone at Auto Convoy because Cabrera
had been reinstated. While I have found that Mull did
tell Guest, before the latter made his final decision to dis-
charge Cabrera, that Salinas intended to file a grievance
protesting Cabrera's reinstatement with full seniority, I
22 Cabrera testified that in July 1982 Mull attempted to cause him to
run for office on his (Mull's) slate by telling him he had nothing to do
with him getting fired by Auto Convoy-that Canales and Hammond
did. While the instant record does not cause me to even suspect that Mull
asked Guest to fire Cabrera, Guest's equivocation at points, and the de-
scribed Cabrera testimony, cause me to suspect that Canales and/or Ham-
mond may have been implicated in the matter.
note that Guest indicated during his testimony that he
was unaware at the time that Mull was unhappy with
Cabrera because of the Joint Council 58 matter.
In sum, the record in this case reveals that Mull and
others informed Guest, directly or through his assistant,
Whitesides, after Cabrera was reinstated, that grievances
would be filed to protest the fact that Cabrera had been
reinstated with full seniority after he had acted as busi-
ness agent for 17 months. As article 46, section 2, of the
applicable contract reveals leaves of absences are limited
to 180 days, and Guest testified he elected to discharged
Cabrera of his own volition to avoid monetary claims by
other drivers, a valid ground for the discharge existed. In
the circumstances, I find that the General Counsel has
offered insufficient evidence to show Respondent Em-
ployer discharged Cabrera because Local 657 requested
that it take such action.
CONCLUSIONS OF LAW
1. Auto Convoy Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Union has not engaged in conduct
which violates Section 8(bX1)(A) and (2) of the Act as
alleged in the consolidated complaint.
4. Respondent Employer has not engaged in conduct
which violates Section 8(aX)(1) and (3) of the Act as al-
leged in the consolidated complaint.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER2 3
The complaint is dismissed in its entirety.
23 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.
1197