Chauffeurs Local Union No. 1040

National Labor Relations Board - Board Decisions

Mar 13, 1969

174 N.L.R.B. 1153 (N.L.R.B. 1969)

CHAUFFEURS LOCAL UNION NO. 1040
Local Union No. 1040, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and
Helpers of America ( American Dr . Pepper
Bottling Company of Bridgeport , Connecticut,
Incorporated ) and Paul L . Blawie, Esq. Case
2-C B-4606
March 13, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On November 15, 1968, Trial Examiner Arthur
M Goldberg issued his Decision in the
above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that the
Respondent had not engaged in other unfair labor
practices and recommended the dismissal of such
allegations. Thereafter, the General Counsel filed a
brief, and the Respondent filed exceptions to the
Decision and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Local Union No. 1040,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, and representatives,
shall take the action set forth in the Trial
Examiner's Recommended Order.
'We find it unnecessary to pass on the Trial Examiner's finding that the
fines were not tainted, since, as noted by the General Counsel, the legality
of the fines was not in issue before the Trial Examiner and, accordingly, is
not before the Board
TRIAL EXAMINER'S DECISION
1153
ARTHUR M. GOLDBERG, Trial Examiner. The
complaint herein was issued on May 14, 1968,' by the
Regional Director for Region 2 based upon a charge filed
on February 5, by Paul L. Blawie, Esq (herein called
Blawie). The complaint alleged that Local Union No
1040, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein called the Union or the Respondent), at a union
meeting on January 15, had threatened to bar employees
from future employment if they failed to pay union fines
and had otherwise threatened employees with reprisal
These acts were alleged to have violated Section
8(b)(1)(A)2 of the National Labor Relations Act, as
amended (herein called the Act )3 Respondent denied
generally all the material allegations of the complaint.
All parties participated at the hearing in Bridgeport,
Connecticut, on October 7 and 8, and were afforded full
opportunity to be heard, to introduce evidence, to examine
and cross-examine witnesses, to present oral argument,
and to file briefs Oral argument was waived and briefs
were filed by General Counsel and the Respondent
Respondent's motions to dismiss all or part of the
complaint on which ruling was reserved are disposed of by
my findings below
Upon the entire record in the case, my reading of the
briefs, and from my observation of the witnesses and their
demeanor, I make the following.
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
The complaint alleged, the answer did not controvert,
and I find that American Dr Pepper Bottling Company
of Bridgeport, Connecticut, Incorporated (herein called
American Dr Pepper or the Company), is and has been at
all times material herein a Connecticut corporation with
its office, plant, and place of business in the city of
Bridgeport, Connecticut, where it is engaged in the
manufacture, bottling, sale, and distribution of carbonated
beverages and related products During a representative
12-month period the Company, in the course and conduct
of its business, had a direct inflow of goods and materials
in interstate commerce valued in excess of $50,000, which
were shipped to its Bridgeport plant from points outside
the State of Connecticut
The Company is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and meets the
Board's standards for asserting jurisdiction
11 THE LABOR ORGANIZATION INVOLVED
Local Union No. 1040, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act
'Unless otherwise indicated all dates herein are in 1968
229 U S C 158 (b)(I)(A)
'An additional complaint allegation was withdrawn by General Counsel
at the hearing
174 NLRB No. 175
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A Background
The employees of American Dr Pepper were organized
by the Union in 1962 and have been covered by a
collective-bargaining agreement since that time. The
current contract provides, inter alia , that in the event a
delivery truck is loaded with more than 200 cases of
beverages there shall be assigned to such vehicle a helper
as well as the regular driver
On January 6 the Union conducted hearings against a
number of company employees on charges that these men
had violated the foregoing provision of the contract by
taking out trucks carrying more than 200 cases of
beverages without a helper General Counsel does not urge
any violation in connection with the intraunion charges or
the hearings thereon
B The Events of January 15
On January 15 the Union held a meeting at its offices
for the Company's employees, at which time the results of
the hearings of January 6 were announced Present at this
meeting were almost all American Dr Pepper employees
as well as James Simonelli, secretary-treasurer of the
Union, and Wilbur Finn, recording secretary of Local
1040 The verdict as read by Finn provided a fine of $250
against Ernest Evan on a finding that he had driven his
delivery truck overloaded. Stephen Balogh was also found
guilty of overloading and a fine of $200 was levied against
him. Evan's fine was greater than Balogh's because at the
time of the contract infraction, Evan was the union
steward A third employee, Alan Di Stassio, was fined
$200 on a finding that after completing his regular tour of
duty as a driver, Di Stassio had worked at the Company's
yard at wages below the contract minimum for the work
he was performing and in violation of the contract's
overtime provision
In the discussion which followed the announcement of
the fines, Simonelli advised the men that one half of the
fines levied would be remitted if payment was made within
30 days Simonelli also explained the intraunion appeal
procedure. However, the three men involved stated that
they would not pay the fines During the course of this
discussion, tempers flared and the exchange became
heated Di Stassio stated that he would not pay the fine
since he was going to California S At this point Simonelli
angrily and in loud tones stated that he did not care where
Di Stassio went, that if he did not pay the fine, Simonelli
would blackball him and prevent his securing employment
wherever he went. Simonelli then turned to the other men
and said he would blackball them as well 6
'Article XXIX, Hours, (f)
'A finding that Di Stassio implied he was moving to California or
merely indicated that the trip was for a vacation , as was the fact, can
neither add to nor detract from the illegal nature of Simonelli's remarks
which followed Accordingly, I do not resolve the conflict as to the
meaning Di Stassio sought to convey
'This finding of Simonelli ' s remarks is based upon a synthesis of the
credited testimony of the many employees who testified While their
versions of the events at the January 15 meeting vary in detail, their
testimony was mutually corroborative as to the essential events , including
Simonelli ' s remarks Whether they recalled that Simonelli had made the
flat statement that he would prevent A Di Stassio and the others from
getting a Job anywhere (testimony of A Di Stassio , Burns, Shaw, Wilkus,
Evan, and T Di Stassio ) or had said he would bar them from getting a job
with the Teamsters (testimony of Balogh and T Di Stassio as to
employees other than A Di Stassto ), all employee witnesses testified that
Following Simonelli's exchange with Di Stassio, the
discussion at the January 15 meeting turned to the men's
attitude and behavior toward the Union Stephen Balogh
testified that, during the course of this discussion, he
accused Simonelli of having attempted to cause his
discharge some years before Simonelli denied the
accusation. At this point Robert Burns, company
dispatcher and son-in-law of the Company's principal
owner, gave the lie to Simonelli's denial A number of
employees testified that at that point Simonelli turned to
Burns and said, "Coy little Bobby, I'll take care of you
later " It was Simonelli's testimony that when Burns
controverted his denial of Balogh's accusation, Simonelli
had dismissed Burns' intervention in the conversation with
a comment along the line that his accuser just forget
about it at the present time Having observed Simonelli on
the stand and having credited testimony that a major part
of the discussion at the January 15 meeting consisted of
unprintable language, I cannot credit the claim that
Simonelli would have dressed down his accuser with the
words "Coy little Bobby " On the other hand, I do not
accept Simonelli's claim to have brushed aside a direct
accusation of lying with a quiet suggestion that his accuser
forget the matter at the moment. The remark "Coy little
Bobby, I'll take care of you later" was alleged in the
complaint to have been a threat directed against Burns in
violation of the Act Based upon the record therein, I can
find neither that the remark was made in the form
testified to by General Counsel's witnesses nor can I
determine what Simonelli's words were in this exchange
with Burns Thus, I find that General Counsel has failed
to meet his burden of proving the allegation that a threat
was directed against Burns . Accordingly, I shall
recommend dismissal of this allegation of the complaint
C Findings and Conclusions
While sanctioning a union fine imposed for conduct
arising during the course of employment, the Board noted
that it had ". . not been empowered by Congress to
police or to pass judgment on the penalties a union
may impose on a member so long as the penalty does not
impair the member 's status as an employee " Local 283,
United Automobile , Aircraft, etc (Wisconsin Motor
Corporation), 145 NLRB 1097, 1104. (Emphasis
supplied ) As heretofore found, Simonelli's threat on
January 15 was to blackball the employees from
employment rather than to prevent their securing
membership in other Teamsters locals Thus, Simonelli's
means of collecting the otherwise untainted fines did
"impair the member's status as an employee" and violated
Section 8(b)(1)(A) of the Act The protection afforded a
union by the proviso to Section 8(b)(l)(A) of the Act
freeing from Board surveillance a union's rules with
respect to acquisition or retention of membership does not
cloak with immunity union efforts to enforce its rules or
to collect its fines by entering the area of
Simonelli ' s threat of blackball was directed against their obtaining
employment rather than continued Teamsters membership The employees
impressed me as having truthfully and honestly attempted to recall the
events and I credit their testimony On the other hand , Simonelli claimed
that on January 15 he had said that if the fines were not paid, he would so
advise other Teamsters locals throughout the country and would thereby
prevent the three employees involved from securing membership in other
affiliates of the Teamsters I do not credit Simonelli 's version Simonelli
impressed me as an outspoken , hot-tempered individual who in the heat of
argument would not adhere to the fine distinction in blackballing which he
claimed to have exercised
CHAUFFEURS LOCAL UNION NO. 1040
employer-employee relationships , Local 248, United
Automobile , Aerospace, etc (Allis-Chalmers
Manufacturing Company), 149 NLRB 67, 70
Accordingly, I find that Simonelli's threat on January 15
addressed first to Di Stassio and then to the other
employees to blackball them from employment if they
failed to pay the union-imposed fines restrained and
coerced the employees in violation of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
American Dr. Pepper as set forth in section 1, above, have
a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take further action that I
find necessary to effectuate the policies of the Act
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
I American Dr Pepper Bottling Company of
Bridgeport, Connecticut, Incorporated, is an employer
within the meaning of the law
2. Local Union No. 1040, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
the Act
3. By engaging in the conduct described in section III,
above, Respondent has restrained and coerced employees
in the exercise of rights protected by Section 7 of the Act,
and, thereby, has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(b)(1)(A)
of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5 Respondent has not engaged in other unfair labor
practices as alleged in the complaint.
RECOMMENDED ORDER
The Respondent Local Union No 1040, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, its officers, agents, and
representatives, shall
1. Cease and desist from threatening to blackball
members and employees from employment because of
their failure to pay fines imposed by the Respondent or, in
any like or related manner, restraining or coercing
employees in the exercise of rights guaranteed in Section 7
of the Act
2 Take the following affirmative action which, it is
found, will effectuate the policies of the Act.
(a) Post at its office and meeting places in Bridgeport,
Connecticut, copies of the attached notice marked
"Appendix "' Copies of said notice, on forms provided by
the Regional Director for Region 2, after being duly
signed by Respondent's representative, shall be posted by
1155
it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Promptly, upon receipt of copies of said notice from
the Regional Director, return to him signed copies for
posting by American Dr Pepper Bottling Company of
Bridgeport, Connecticut, Incorporated, it being willing, at
all places where notices to the Company's employees are
customarily posted.
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.'
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges unfair labor practices not
specifically found herein
'in the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL UNION No. 1040,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA AND EMPLOYEES OF AMERICAN DR PEPPER
BOTTLING COMPANY OF BRIDGEPORT, CONNECTICUT,
INCORPORATED
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that
WE WILL NOT threaten to blackball you from
employment if you fail or refuse to pay fines which we
have imposed upon you.
Dated By
LOCAL UNION No. 1040,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 36th Floor,
Federal Building, 26 Federal Plaza, New York, New York
10007, Telephone 212-264-0306