General Teamsters, Local 890

National Labor Relations Board - Board Decisions

Oct 29, 1971

193 N.L.R.B. 1048 (N.L.R.B. 1971)

1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Teamsters, Warehousemen and Helpers
Union, Local 890, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America (Jack M . Roth Company) and Lawrence
E. Campbell , an Individual Case 21-CB-3864
October 29, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 23, 1971, Trial Examiner George H.
O'Brien issued the attached Decision in this proceed-
ing. Thereafter, counsel for General Counsel filed
exceptions and a supporting brief. Respondent filed
an answering 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
authority in connection with this proceeding to a
three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions I and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts the Trial Examiner's
recommended Order and orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
I Counsel for General Counsel excepts to certain statements in the Trial
Examiner's Decision on the ground that they are not supported by the
record We find merit in counsel for General Counsel's exceptions and
hereby correct the statements , however, these corrections in no way affect
our agreement with the Trial Examiner 's ultimate finding since we, too, feel
that, upon the preponderance of the evidence in the entire record
considered as a whole , counsel for General Counsel has failed to sustain
his burden of proof and hence we affirm the dismissal of the complaint.
The corrections are as follows ( I) The Trial Examiner at sec III, C, 2,
par 3 , placed the date of Burdett's conversation with Roth as November
15, 1970, whereas the record shows that this conversation occurred on
November 16, (2) the Trial Examiner at sec III, E , par 1, stated that Roth
and Burdett were in complete agreement as to the substance of their
conversation whereas the record shows that , while Burdett said he
informed Roth that , if Campbell had grounds to support his case, the
Union would be in further contact with Roth, Roth said Burdett made no
comment concerning any future handling of the case , (3) the Trial
Examiner at sec III, C, 3, par 2, stated that Saunders testified he returned
to Yuma on November 23 or 24 whereas the record shows that Saunders
said he met with Campbell in Yuma on November 23 or 24 and not on
November 24 or 25 as the Trial Examiner stated at sec III , C, 3, par 3, (4)
the Trial Examiner at sec III, E, par 5 , stated that if Campbell did mail in
his money order to the Union it was done in November whereas the record
shows that , if done , it was accomplished in August
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE H . O'BRIEN, Trial Examiner : On May 4, 1971, a
hearing was held in the above-entitled matter in Los
Angeles, California . The complaint , issued March 3, 1971,
is based on a charge filed December 18, 1970 , by Lawrence
E. Campbell , an individual , and alleges violations of
Section 8(b)(1)(A) of the National Labor Relations Act by
General Teamsters, Warehousemen and Helpers Union,
Local 890 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America , herein
called Respondent or the Union . Upon the entire record in
this proceeding, including my observation of the witnesses
and after due consideration of the post-hearing briefs, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Jack M. Roth Company, herein called the Employer, a
California corporation with its principal office in Los
Angeles, California is engaged in the manufacture of
vegetable containers and, until about December 28, 1970,
maintained a facility in Walnut , California . Respondent
annually ships products valued in excess of $50,000 from
points within the State of California directly to customers
located outside the State of California.
II. THE LABOR ORGANIZATION INVOLVED
Respondent, with its principal office in Salinas , Califor-
nia, represents for the purposes of collective bargaining
employees of agricultural packinghouses and related
enterprises in principal agricultural valleys of California.
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges in material substance that on or
about November 17, 1970 , Lawrence Campbell attempted
to file with Respondent a grievance protesting his discharge
by Employer and that Respondent refused and continues to
refuse to accept or to process said grievance-
because Campbell was not a member of Respondent
even though Respondent did not request that Campbell
pay dues and Respondent has never requested that
Campbell be discharged by the Employer for failure to
tender periodic dues and initiation fees uniformly
required as a condition of acquiring or retaining
membership.
193 NLRB No. 163
GENERAL TEAMSTERS, LOCAL 890 1049
Respondent argues, in substance, that it did accept and
did process Campbell's grievance. In his post-hearing brief
Respondent 's counsel states:
... at least two officials of Respondent discussed the
grievance with various of Employer's representatives,
one official personally met with Campbell and conduct-
ed a rather thorough investigation of Campbell's
discharge , which investigation indicated Campbell's
culpability. Thereafter, Campbell failed to provide
Respondent with any evidence supportive of his
position, failed to meet with Respondent's official as
suggested , and failed to respond to telephone calls.
Respondent did not demand the reinstatement of
Campbell, nor did it invoke arbitration to compel the
reinstatement of Campbell.
B. The Collective-Bargaining Agreement
The contract between Employer and Respondent,
effective from October 1, 1969, to October 1, 1972, contains
the following pertinent provisions:
SECTION II-HIRING AND DISCHARGE
(a) . . . All future employees shall become members of
the Union within thirty one (31) days after the date of
employment and shall maintain membership through-
out the life of this agreement . The Company shall be
granted a grace period of not to exceed seven (7) days to
replace any employee failing to comply with provisions
herein concerning Union membership.
(b) There shall be no limitation upon the Company's
right to suspend or discharge any employee for cause,
but on the request of any employee suspended or
discharged the Company shall state the reason for such
suspension or discharge, subject to the right of appeal as
contained in Section XIV of this agreement.
SECTION X-HEALTH AND WELFARE INSURANCE
(A) The Company shall pay the sum of thirty-one
dollars and fifty cents ($31.50) per month per each
eligible employee into a fund known as the California
Teamsters Health and Welfare Trust . . . . These
contributions shall be paid by the 10th day of each
month ... .
SECTION XIV-SETTLEMENT OF DISPUTES
(a) A Board of Adjustment shall be created when a
dispute arises, to be composed to two (2) representatives
of the Company and two (2) representatives of the
Union. Said Board shall organize at once and shall elect
a chairman and secretary and shall adopt rules or
procedure which shall bind the contracting parties. Said
Board shall have the power to adjust any differences
that may arise between the parties hereto regarding the
meaning or enforcement of this contract.
(b) Said Board shall meet for consideration of matters
referred to it by either party within forty-eight (48)
hours subsequent to receipt by its secretary of notice of
same . The Board's decision shall be submitted to both
contracting parties in writing, which shall be signed by a
majority of the Board. If the Board cannot agree on any
question referred to it within forty-eight (48) hours, they
shall then choose a fifth member who shall have no
connection with either contracting party and the
decision of a majority of the Board of five shall be final
and binding on both parties. Pending the decision of
any question referred to the Board , work shall continue
in accordance with the provisions of this contract.
(c) Expenses of the Board shall be borne equally by the
parties hereto.
SECTION XVI-CHECK-OFF
Upon written authorization by the employee, the
Company shall deduct initiation fees and dues from the
check of the employee and forward same to the office of
the Local Union by the 10th day of each month.
SECTION XVIII-PENSIONS
Effective with hours worked in September, 1969, the
Company agrees to pay into the Western Conference of
Teamsters' Pension Trust Fund the sum of Seventeen
Dollars and Thirty Cents ($17.30) per month for each
employee who has completed eighty (80) hours work in
the preceding calendar month.
C. Sequence of Events
1. Campbell 's discharge
Lawrence Campbell was hired as a truckdriver at
Employer's Walnut, California, facility on June 3, 1970. He
was laid off June 10, 1970, rehired July 2, laid off August
12, rehired September 23 and discharged November 16,
1970.1 Shortly after October 10, 1970, Jack Roth,
Employer's president, noted that he had not been making
health and welfare and pension payments to the Union in
Campbell's name. Employer's bookkeeper and secretary,
William Bulkeley, told Roth that the payments had not
been made because Campbell was not a member of the
Union. Employer's foreman, Harry Robinson, told Roth
that Campbell was a member of the Union and was paying
his dues directly. Roth then called the Union's office in
Salinas and was told that they had no record of Campbell's
membership.
Shortly after November 9, 1970, Bulkeley told Roth that
Campbell had claimed 9 hours waiting time in Castaic,
California, to have an air leak repaired and that the time
appeared excessive. Roth asked Robinson to investigate.
On November 16, 1970, Robinson told Roth that Campbell
had failed to show the previous midnight for a run which he
had agreed to take and that it was necessary to call a
substitute driver. Roth telephoned the Union's secretary-
treasurer, Ray Burdett, and inquired of him whether
Campbell was a union member Burdett had a secretary
check the records, replied that Campbell was not a member,
and told Roth that he would send a termination notice.
Roth then said that would not be necessary because he was
going to discharge Campbell anyway because he was not
dependable. Campbell had failed to show up for a run, he
I Counsel stipulated these dates Campbell testified that he was hired in
June 1970 and was never laid off, although there was one slack period of
"a week or two or a day or so "
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had stolen 4 hours time over an air leak incident, and on
one occasion he had obtained his check early to bring his
wife back from Oregon and was seen later in a bar. Roth
told Burdett that, "This is not your concern, this is my
concern ." Burdett told Roth, "if a man had grounds to
support his case, that we would be back to see Mr. Roth if
he did discharge the man."
Roth then instructed Bulkeley to discharge Campbell and
the following letter was mailed:
November 16, 1970
Lawrence E. Campbell
P. O. Box 471
La Puente, Calif.
This is to inform you that your services as truck driver
for this company are terminated effective immediately.
On Sunday, November 15, 1970 you were contacted for
a run double with Mel Florence. You did agree to this.
You did not show up for the run at midnight as
directed. At 12:30 another driver had to be procured in
your place. Four other drivers at our Walnut yard
witnessed your absence. You also falsified your trip
record on November 9th claiming 9 hours waiting time
at Castaic to have an air leak repaired. The Inspection
Station records show inspection started at 8:47 a.m. and
was over at 9:03 a.m. Citation was issued at 9:05 a.m.
You stated that you left Castaic at 12:30. This is elapsed
time of 4 hours from inspection to departure.
Signed Jack M. Roth
by William W. Bulkeley
Secretary
2. Campbell's telephone calls to Walnut, Los
Angeles, and Salinas
Campbell testified that upon receipt of the discharge
notice he telephoned his foreman, Harry Robinson, in
Walnut, who referred him to Roth. Campbell then
telephoned Jack Roth at his Los Angeles office. Campbell
told Roth that he was going to the Union, Roth told
Campbell that he had talked to the Union and been told
that Campbell was not a union member. Campbell replied,
"I sure am .... I sent the money in to them . . . . I paid
one month's dues along with the initiation fee . . . and I
thought I was on checkoff." Roth said that he had no
record of any checkoff and the Union had no record of
Campbell being a member.
Campbell testified that he next telephoned the Respon-
dent's office in Salinas and spoke to the secretary-treasurer,
Ray Burdett.
I read the letter to him, and told him I had been
terminated, and explained to him where I felt I should
not have been, and why I should not have been. And he
said, "All right; I will look into it tomorrow. Call me
tomorrow."
Q. (By Mr . Pate) Did you call him the next day?
A. I did call, and talked to an office girl, and she
said that I was to get hold of Bob Saunders in Yuma,
Arizona, and she gave me his telephone number.
Burdett testified that he had never spoken to Campbell
on the telephone. After talking to Roth on Monday,
November 15 he left for San Francisco. When he returned
to Salinas on Thursday or Friday of the same week he was
informed by a secretary, "that Larry Campbell had called,
and he was blowing his top and had given her a bad time
... and she said that he had been discharged, and he
wanted to get ahold of me . . . she said that she had
referred him to Bobby Saunders."
3. Campbell's telephone calls to Yuma
Campbell testified that after talking to Salinas, Wednes-
day, November 18, he called Saunders' number in Yuma
and
Mr. Saunders was in the field, and the lady answered
the phone and took my phone number, and said that
she would have him return the call.. . . He returned the
call the following morning. . . . I read him the letter I
got-the termination letter. And I told him that I did
not think that it was right and so on. And he heard
something about it . He said there was nothing he could
do yet-that he had heard something about it, and he
was checking into it, and he did not know, that they
couldn't find my application of membership in the
union yet, and to call him back the next day.
Q. (By Mr. Pate) Did you call him back the next
day?
A. I did call him, and he said there was nothing he
could do. They could not find any record showing that I
was in the Union, and Ray Burdett had told him to
forget about it, that I was not a member . . . . He did
tell me that he talked to Burdett . . . . He didn't say
exactly when he talked to him . . . . I told [Saunders]
"This is not fair ; I have got the records and stuff here.
How about me bringing the stuff down?" .... I said I
had my letter of termination , and I had this copy-I sent
one copy of two copies to the Union for membership. I
said , "I have this all here ," and that I sent it .... I said
"How about me bringing this to you in Yuma and
showing you, and maybe you can do something from
there." He said, "Well, I don't know if I can do
anything, but if you want to, I will meet you tomorrow
morning." I said , "Okay , we'll meet-" He set the time,
and we met in Yuma , Arizona the next morning.
Saunders testified that when he returned to Yuma from
either Blythe or Tucson on November 23 or 24, he found a
message to call the hall in Salinas . The telephone was
answered by Connie, one of the secretaries , who told him
that Burdett was out of town and-
She said that there had been a guy calling up there . . .
about membership, and she brought up Larry Camp-
bell's name .... Well I remembered the guy from the
August meeting when I first met the guy . . . . She said
that the guy had been calling about his
membership-that he sent a money order, and they told
him evidently-this is what she said "We informed him
GENERAL TEAMSTERS, LOCAL 890
that he is not a member, that we cannot find any record
of it." So I asked her to doublecheck the records, and
since I knew that Ray was out of town I told her to
doublecheck the records and I would call Ray and find
out whether he is or is not a member. "Maybe you will
find it by the time Ray gets back," because they do get
misplaced sometimes . . . . She said that the guy had
been terminated for nonpayment of dues, and he would
probably be getting in touch with me because she had
referred him to me.
Saunders testified that he had no communication with
Campbell between the time of their first meeting in August,
1970, and their meeting in the Greyhound bus station in
Yuma on November 24 or 25. The day before the bus
station meeting "my sister had told me that a guy had kept
calling collect, and she had told the guy that she would not
receive that call." 2 She wrote Campbell's name and phone
number down on a piece of paper. Saunders called the
number but "did not get him."
Campbell's son, Richard, testified that he received a
telephone call from his father
and my dad said that he had an appointment with Mr.
Saunders, and that if I went with him I could talk to Mr.
Saunders, and maybe I could find a place where I could
get employment . . . he said when he called me, we had
to leave within an hour.
Richard Campbell testified further that his father made a
telephone call from El Centro, that they arrived in Yuma
between 8 p.m. and 9 p.m., that his father entered a
telephone booth on the main street and made three
telephone calls, after which,
He said that he had talked to the secretary-the
lady-and that they had not got hold of [Saunders] and
that they were trying to find him, and the best thing that
we could do was to have a place to stay that night, and
that as soon as they found out more in regard to where
he was or whatever, they would let him know that we
were in town and would be there for the appointment.
4. Campbell's meeting with Saunders, Greyhound
bus station, Yuma, Arizona
Campbell testified that he and his son met with Saunders
and his brother-in-law at the Greyhound bus station in
Yuma on Saturday morning, November 21, 1970, and, on
direct examination by the General Counsel:
Q. What was said at this meeting?
A. I gave Mr. Saunders the letter of termination. I
showed him a copy that I sent to the Union.
Q. A copy of what?
A. A copy of my application for membership.
Q. All right.
A. I sent it to the Union, and as far as I knew I
should be a member. I had no knowledge of being; I
couldn't understand at the time, knowing that I was
there and employed by Mr. Roth -which my
1051
employment was never stopped in between. There was a
slack period of a week or two, or a day or so, but I was
never laid off, and I couldn't understand why the union
wouldn 't help me out; why they didn 't come after me
again if they didn't have any record of it. What had
happened to it. He explained to me that they were
hunting high and low for it.
Q. For what?
A. For my application and money order. They had
not found it yet, but if they did find it he would be able
to help me. But until that time he had no authority then
to do anything for me.
Q. Okay. So go on.
A. Well, after the conversation he said, "I will try
once more to see if they could have found it and maybe
I can step in and help you." He went to the pay phone.
He come back from the pay phone, and he said that he
had talked to-
Q. He made a telephone call?
A. I believe he did. He said he had talked to the
Salinas office, and that he had orders to wash his hands
of it-to forget it. There was nothing they could do,
because they could find no record of my being-of the
application or the money order.
Q. Was anything else said?
A. I said, "Well, I will go to the Labor Relations
Board , then , because something has to be done. I am
unfairly fired." He agreed that I had a good gripe.
Q. What did he say in that regard?
A. Well, he said under the circumstances-and so
on-"I think I could solve this real quick for you if I
could get an okay from my supervisor to step into it."
Q. All right. Do you recall anything else being said?
A. No. We dust dropped it at that, and there was
nothing more done about it. I came to the National
Labor Relations Board with it then.
Q. Now since that time has the Union ever changed
its decision to refuse-
A. I have heard nothing about it. Nothing from
nobody. Not the Union or anybody else. I got one letter
that they wanted to change the hearing place from Los
Angeles to San Francisco.
Q. Did you have any further contact?
A. Other than that I have heard nothing.
MR. PATE: No further questions.
Under cross-examination by counsel for the Respondent:
Q. (By Mr. Kovach) I am handing you now what
looks like a Xerox copy of the dismissal notice. Is that
the copy of the document that you had with you on the
day that you met Bob Saunders in the bus station in
Yuma?
A. Yes, it is.
Q. Did you give him that that day?
A. I gave it to him and let him read it, yes . . . . He
did ask me questions about it . . . . He said that he
would see what he could do about it. If they could find
my membership he could take it and have a conference
with Roth; I could file a grievance. He said that he
didn't think it would have to go that far.
Campbell also testified under cross-examination that he
2 The union office in Salinas does accept collect calls.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had exhibited to Saunders the carbon copy of his
application for union membership dated August 10, 1970,
and told Saunders that he had mailed the original to the
Union with a money order. When Saunders asked about
the receipt, Campbell replied that it was with his papers at
home. Campbell asked Saunders about getting a job for
himself and his son in Blythe. Saunders gave him the names
of "people down there" and gave Campbell the name of the
motel where Saunders would be staying. Campbell's cross-
examination concluded with the following:
Q. (By Mr. Kovach) Did Mr. Saunders at the
meeting in Yuma tell you that he would have to check
into the reasons for your discharge further?
A. He told me that he could not do anything; that
his superior had ordered him to forget about it; that
they could find no record of me being in the union.
Q. And that was before or after the phone call that
he made in Yuma?
A. Afterwards.
Q. And only afterwards; is that correct?
A. He told me that he could before the telephone
call, and after he couldn't.
Q. He could not?
A. That's right, but he would try once more and see
if they could possibly have found it. They were hunting
for it in the office at Salinas. He would try once more
before I left to see if they accidentally mislaid it, and
then he could help me.
Richard Campbell testified:
Well in the morning-we were there approximately 8 or
8:30, and we waited around. We ate breakfast and Mr.
Saunders got there around ten o'clock, and came in and
introduced himself to me, and introduced his brother-
in-law and the little boy, and they sat down and we had
coffee, and he explained why he was late. He said that
the night before-that he had not called in or could not
make communication until morning . . . . I can't
remember exactly . . . I think he said that when he did
call and found out that my dad was going to be down at
the Greyhound bus station, he came down.
Afterwards, when he was there, they basically
discussed his relations with Jack Roth and his
termination. I don't know exactly all the details on it.
Q. (By Mr. Pate) Well, to the best of your memory,
what did they say?
A. Well, it was over-if I remember correctly, it
was over something to do with the last time-from a
breakdown, and something else.
Q. Did they discuss the reason for the termination
at that time?
A. In a roundabout way, yes. I didn't clearly
understand it, so I didn't keep myself too informed on
that point.
Then they got into the point of the Union, and my
dad said that he had sent the initiation fee and the
papers by mail to Salinas, to Local 890, and then it
came about that somehow or something it was mixed up
in the mail, and Mr. Saunders said that he had checked,
and that he found no record of it in the office, and
everything, and he couldn't find it.
Q. No record of what?
A. No record of my dad having sent the initiation
fees or anything-even having sent it . . . . and he said
that there was nothing he could do at that point , and the
best thing for my dad to do was to check about that
receipt-the money order-and see if they could come
up with something.
Evidently there had been some kind of a mix-up so after
that they basically discussed-I had asked Mr.
Saunders myself about-you know-about different
work that was there . . . . That was primarily the
reason I went down there ; I was seeking work, and I
heard there was a lot of work down there . . . . And
then after a while he went to the phone ... .
Q. Did he say why he was going to make this
telephone call at that time?
A. I can't remember the discussion exactly why he
said he was going to call, but I presumed it was- ... .
Q. Well to the best of your memory what did he say
in regard to making this phone call?
A. Oh, he said he was going to-let me see . He said
that he was going to call into the office , but now
pertaining to seeing if he could help my dad or not, I
can't remember exactly . . . . And he came out and
said a few more words that I can't remember exactly,
and he said he would get with the office further about
finding the records that were humble -jumble, and if
they would be able to locate them he would contact him
right away ; and that my dad was also to check into his
file for the receipt . And that was all of it.
Q. Did he say anything about the telephone call, or
do you have any memory of what he said about the
telephone call?
A. . . . He said that there was nothing he could do
right now, but that when he did get back to the office
that he would-
Q. What do you mean, nothing he could do?
A. Well, with respect to helping my dad try to get
back to work, or whatever.
Q. Okay.
Saunders testified that as he was driving north on Yuma's
main street he saw Campbell and another man in a car
driving south. Campbell waved, and pulled into the front
entrance of the Greyhound bus station . Saunders turned
into the side of the station . Saunders , had been informed by
his sister that Campbell was in Yuma and looking for him.
When the four men and one boy sat down at a table in the
bus station,
... he started telling me about the money order. He
had sent it to the hall , and they told him he was not a
member . . . . He said something about that the
company was going to cook up some reason for firing
him.
Q. (By Mr. Kovach) Did you have any notice that
he was discharged, or any papers or anything?
A. No.
Q. Did he present any papers to you?
A. No.
Q. Did he have any papers with him?
A. No. I asked him for the money order stub for his
GENERAL TEAMSTERS, LOCAL 890 1053
membership that he said he had. He told me then that
he had left it in his room in Los Angeles; that he was
going to go back and get it and come back to Yuma.
Q. And what about his termination notice? Did he
have it with him?
A. Not that day, no.
Q. Had you seen his termination notice?
A. No.
Q. How about his application for membership?
Was there anything like that on his person that day?
A. I don't think there was; I don't think that he
showed me anything.
Q. What was the discussion. What did you say to
him and what did he say to you, in the bus depot?
A. He told me something about the air hose
leaking. He said . . . they were going to fire him for it
.... He asked me if there was work in Blythe, and I
told him I thought there was, because the deal had just
started, and I was staying in Blythe . . . . He
introduced his son to me and told me he was a truck
driver, and I told his son that there was work there
.... They indicated that they would be back-that
they would go to Blythe. In fact I told them that I was
going to Blythe, and to find me in Blythe if they came
back to Blythe.
Q. Was there any discussion as to whether or not
you would take on his grievance, or argue on his behalf
with the company?
A. He asked me if I would go up to this place and
investigate the discrepancy about the time.
Q. I am asking you, was there anything discussed
relative to whether or not you would take on his
grievance.
A. I don't really remember if he did or not.
Q. Did you agree or not agree to take on his
grievance at the meeting at Yuma on that date?
A. I told him that the information that I was getting
from the hall was that the man had been terminated or
discharged for not paying his dues at that time.
s
Q. Did you give him any instruction as to what to
do or what steps to take?
A. I told him, if I am not mistaken-I told him that
I would get ahold of Jack Roth, and I tried to get ahold
of Ray Burdett, but I was informed that Ray was out of
town, and that I would call Jack Roth and get a copy of
the termination notice-all of the reasons why the man
was fired. And then I would call Ray when he got back
.... I told Campbell that I would be in Blythe at the
Sea Shell Motel, and that if he could not find me there,
that I would be right around the yard, or around the
cooler, where I am always at. Any driver in Blythe
knows where I am at there, if I am in Blythe.
Q. Did you ever mention anything about instruc-
tions that you were working under, or instructions that
you had to follow?
A. Yes, I did. He acted a little mad about me not
jumping in my car and taking off without any
information. And I told him that we had very specific
orders, that we cannot go beyond those orders. In other
words, it would not have done him any good, the way I
put it to go off half cocked.
Q. Had you received any instructions prior to your
meeting in Yuma about Larry Campbell from Mr.
Burdett?
A. No, I did not even get to talk to Ray.
5. Saunders' investigation of Campbell's grievance
Shortly after his meeting with Campbell, Saunders
telephoned Roth from Blythe. Roth told Saunders that he
had talked to Burdett, that he had received no termination
notice from the Union, and that he had discharged Larry
Campbell on the recommendation of his foreman for
multiple reasons. These reasons were being late for work,
being undependable, and cheating on his time. Saunders
asked Roth to send copies of the dismissal letter. Saunders
then telephoned Bulkeley, who amplified the reasons for
Campbell's termination. Bulkeley described an occasion
when Campbell had obtained his check in advance of
payday on the representation that he wanted to go to
Oregon to bring his wife back to California and was seen
later in a bar drinking with a woman. Bulkeley described
the circumstances of the air leak incident and the
investigation which had been made by the foreman in
explanation of his belief that Campbell had falsified his
time record. Bulkeley also stated that he had not received
any termination notice for nonpayment of dues from the
Respondent. The conversation concluded with Saunders'
announcement, "if a man pursued the grievance, that we
would have to go to a hearing."
About 2 weeks after the Yuma meeting, and after his
conversations with Roth and Bulkeley, Saunders received
in the mail a copy of Campbell's notice of termination.
Saunders then talked to Roth's foreman, Harry Robinson,
who described his investigation of the air leak incident and
stated his belief that Campbell had "cheated on his card
four and a half hours." Robinson confirmed the statement
in the termination letter that Campbell had failed to show
for a scheduled run and that it was necessary for the
Employer to obtain a substitute driver at the last minute.
Campbell did not attempt to communicate with Saunders
in Blythe. Saunders made several attempts to call Campbell
at the number which Campbell had given him, but there
was no answer.
In a casual meeting with one of Roth's drivers, Danny
Trailing, Saunders was told by Trailing that "Campbell was
always drinking and late for work and undependable."
6. Campbell's visit with Saunders , January, 1971
Campbell, cross-examined by Mr. Kovach, testified:
Q. Your last statement on direct testimony was that
you didn't ever contact the Union after the meeting in
Yuma with Bobby Saunders, and that following that
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting you only made one more telephone call to
Salinas, is that correct?
A. I didn't say I made other phone calls after that
meeting. I said Mr. Saunders made a call at that
meeting. I don't know if he called Salinas or not. He
went to the pay phone.
Q. So the meeting was then the last time that you
contacted the Union or its officials relative to your
discharge and your status as a union member; is that
correct?
A. I met Mr. Saunders in Yuma, Arizona, a few
weeks later . . . . I happened to be down there and I
went by his house to see if anything had materialized as
yet . . . . I asked him-not merely for this, but other
reasons too.
Q. What other reasons?
A. Personal.
Q. Pardon?
A. Personal. I asked him about this, but other
reasons too.
Q. Well, tell us about those other reasons. Tell us
what those other reasons were-why you contacted
him.
A. That has nothing to do with this case.
s
TRIAL EXAMINER: Would you please, Mr. Campbell,
let the chips fall where they may, and tell us your
conversation with Mr. Saunders at his home in Yuma.
THE WITNESS: It was the evening, I went there to see
him to find out how things were going around the
countryside, where the work was, if he knew of anybody
that was hiring-any driving. I asked him if he had
heard anything yet on my deal with Roth, and I believe
that is dust about the general conversation-trying to
find out where any work was more than anything else.
s s s * s
Q. (By Mr. Kovach) You recall having something
to drink that evening before you came to his house?
A. Well, naturally.
Saunders testified that Campbell had come to his house
in Yuma about 10:00 p.m. one night in January, announced
that the money order had been found, and that charges had
been filed against the local union. Campbell asked
Saunders if he would go to court if the matter went to court
and Saunders replied that he would be there if subpenaed.
They talked about work in the area.
Saunders, cross-examined by the General Counsel
testified:
Q. After you talked to another driver [Trailing] did
you do anything else in processing Mr. Campbell's
grievance?
A. I don't think so.
Q. Now, why not? What were your reasons?
A. . . . Larry told me that night that he had filed
charges-that his attorney had told him to file charges;
that they had been filed at that time ... Larry told me
that he had already filed the charges against the Local
Union for cashing that money order then and not
having any record of it, and for refusing to process his
grievance. In other words, no representation. He at that
time said, "If we have to go to court, will you be there?"
and I said, "sure." 3
D. Campbell's Application for Union Membership
Respondent's printed form is both a membership
application and an authorization for deduction of union
initiation fees and dues. There are two copies with a carbon
between. The upper sheet is thin, white paper. The lower is
very heavy, yellow paper. The lower carbon copy is
retained by the Union for its records. The upper white sheet
is presented by the Union to the applicant's employer and
constitutes his authority to withhold from the pay of the
employee, and transmit to the Union, initiation fees and
dues.
Campbell on direct examination testified that in August
1970 in Roth's shop in Walnut:
[Bob Saunders] asked me if I was in the Union at the
time, and I said no. He offered me an application,
which he gave to me and told me there was a $50
initiation fee, plus $7.50 dues.... I filled it out and got
a money order for $57.50 and sent it to the Teamsters
Local 890 in Salinas, California . . . . I mailed it
personally . . . . Approximately on the 10th of August,
1970.
# s * s
Q. After you mailed this application, did the Union
ever again request that you pay your initiation fee or
dues.
A. They did not. I was on check-off.
Under cross-examination by Respondent's counsel,
Campbell testified:
Q. Now, from the very first contact that you had
with Bobby Saunders in August of 1970, do you
remember making an assertion to the Union that you
would not permit any money to be taken from your pay,
and you would not participate in any check off?
A. I said I did not want it that way, but if that is the
way it should normally be handled, then I said okay. He
told me that was the way it was handled.
Q. You agreed in August-about August 10th, I
believe your testimony was-you agreed on that date
with Mr. Saunders that the Union could check off your
dues; is that right?
A. Yes.
Q. Do you recall Mr. Saunders giving you several
envelopes that day, union envelopes?
A. Yes. He gave me one.
Q. You don't remember him giving you any more
than one for the function-for the purpose of sending
your dues to the Union monthly?
A. No. He gave me applications . . . and an
envelope to send it to Salinas.
Q. One envelope?
3 Campbell testified that he did not recall telling Saunders that a charge
had been filed.
GENERAL TEAMSTERS, LOCAL 890
A. To the best of my knowledge, yes.
Q. So then you went out and bought a money
order?
A. Yes.
Q. Where did you buy your money order?
A. Buy-Fair Market, La Puente.
Q. Do you have a receipt for that?
A. They have it-trying to find the money order
now. They have not been able to get the money order
back the last time I talked to them.
They had not been able to find the money order.
Q. When was the last time you talked to the Buy-
Fair Market?
A. Well I talked to the manager approximately a
week ago . . . . They don't have it, the company that
issues the money orders-it has not come back to them
yet....
Q. Did they make any statement to you that it was
not cashed, according to their records?
A. They don't know. They have not received it
back.
Q. Where is your receipt for the money order?
A. They have it at the Buy-Fair Market.
*
Q. When did you first present that receipt to the
Buy-Fair Market for the money order?
A. I went through my records after I came back
from talking to Mr. Saunders, and I finally found it. I
would say that it was about a week after coming back
from talking to Mr. Saunders at Yuma.
Q. This would be then approximately late Novem-
ber or early December?
A. That is correct.
Q. And at that time you turned over that receipt to
Buy-Fair Market?
A. And they went from there to the people that
issue the money orders to them.
Q. Have you ever gone back to Buy-Fair Market
for the purpose of this proceeding and asked them to let
you have the receipt or a copy thereof9
A. No, I have not asked for it. I have not been
asked to have it.
Saunders testified that he first met Campbell in August
1970 and
I asked him if he was a member of the Union when I
noticed that I had never seen him before. He said no. So
I asked him if I could take an application, and he said
no, that he wanted to take the application himself and
mail it in when he got his check . . . I gave him a blank
application and some envelopes and some health and
welfare forms, and I explained to him the standard
procedure that you explain to anyone-any new person
asking for membership . So he said he would get a
money order and get into the hall, and I did not see him
any more.
Q. Did he agree to sign the check-off at that time?
A. No, he did not want to do that That is why he
said he did not want me to take the application, because
I explained to him that I gave the white copy to Jack
Roth to take out of his check for the month . . . He
1055
wanted to mail his own dues in and his own initiation
fee. I said , "That is your prerogative ; you are entitled to
do that."
Q. How many envelopes did you give him.
A. Five, I think.
Q. Was there any conversation with him that day
relating to whether or not he would mail his dues in
monthly?
A. Yes. He asked me, did he have to send the whole
$57.50 at one time . And I told him that he didn ' t have to
send the whole $57. 50; I would give him time to send in
three payments . Like he could send $32 . 50 and then the
next check , if he could afford it , he could send the
balance , or he could skip a week . And then from that
day forth he could send the dues in monthly, and
request anything from the hall with a note inside, saying
whatever he needed . If he wanted more envelopes, or
up-to-date information on the pension , and so on and
so forth.
E. Concluding Findings
1. Campbell did not speak to Ray Burdett on the
telephone on November 16 1970, nor on any other date.
Roth was a reluctant , disinterested , and wholly reliable
witness. He and Burdett are in complete agreement as to
the substance of their November 15 conversation. If
Campbell had spoken to Burdett immediately after the
Burdett -Roth conversation , the series of misunderstandings
which gave rise to this complaint would not have occurred.
2. Campbell did not speak to Saunders on the
telephone . At no time did Campbell show Saunders his
discharge letter , nor did he read the discharge letter to
Saunders , nor did he tell Saunders that he had been
discharged for failure to report for a Sunday midnight run.
This testimony is purely the product of Campbell's
imagination . It is not corroborated by Campbell's son.
Saunders in Yuma accepted at face value Campbell's
assertion that he had mailed in his initiation fee and that his
dues were being checked off. Saunders also believed, in
reliance upon the secretary 's representation, that the Union
had requested Campbell's discharge . If Campbell had not
deliberately withheld from Saunders the true reason for his
discharge , there certainly would have been some discussion
of whether or not Campbell had agreed to take the
midnight run and if so whether he had appeared or whether
he had been delayed for some legitimate reason.
3. Campbell did not exhibit to Saunders in Yuma the
carbon copy of his application for membership. If he had
done so, Saunders would have immediately recognized it as
the copy which belonged in the Union' s files and advised
Campbell of that fact.
4. Roth's statements and conduct demonstrate that he
believed that the contract was solely for the benefit of the
Union and applied only to union members . Upon being
assured that Campbell was not a union member, Roth
saved $48.80 per month by not making fringe benefit
payments in Campbell's name and told Burdett that
Campbell's discharge was no concern of the Union's.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Campbell's conduct following his discharge was
governed by the same belief as that entertained by Roth,
i.e., that only members had rights under the union contract.
It is useless to speculate as to whether or not Campbell
mailed a money order to the Union on November 10,
although it is a fair inference from all of the testimony that
he did not. In testifying before me, Campbell believed that
he had mailed this money order. His sole concern in
telephoning Salinas and in making the trip to Yuma was to
straighten out his union membership. He assumed that if he
could persuade Saunders that he was a member in good
standing, that Saunders had the power to restore his job,
regardless of any prior misconduct. All of Campbell's
testimony to the effect that Saunders said that union
membership was a prerequisite to union action on
Campbell's behalf is a dramatic reconstruction in Camp-
bell's imagination of the basic false assumption entertained
by both him and Roth.
6. The Union did not refuse to accept Campbell's
grievance.
7. The Union did process Campbell's grievance. When
Saunders learned from Roth the stated reason for
Campbell's discharge, he checked the validity of these
reasons by talking to Bulkeley and Robinson. When
Campbell failed to show in Blythe, Saunders attempted
without success to reach him on the telephone. On the
information which Saunders then had, arbitration would be
futile . He made no decision , "because there was no decision
to make." He did nothing further, because there was
nothing more that he could do until he obtained in detail
Campbell's version of the incidents which resulted in the
discharge. There is not a scintilla of evidence that a union
member in acknowledged good standing would have
received any different or better service.
8. When Campbell finally called on Saunders in
January 1971, Saunders should have questioned him about
the Employer's assertion that he had "stolen" 4-1/2 hours,
and had failed to show up for work, and was unreliable.
Saunders should have then evaluated this information and
advised Campbell whether or not in his opinion arbitration
would succeed, and asked Campbell whether or not he
wanted the Union to proceed to arbitration. Saunders
should not have abandoned his investigation of the
grievance because "he had already filed the charges against
the local Union for cashing that money order and not
having any record of it." But this culpability must be shared
with Campbell. Campbell had withheld from Saunders the
stated reasons for his discharge. Campbell had made no
effort to communicate with Saunders following their
meeting in Yuma. Campbell did not, at Saunders' home in
January, ask the Union to proceed further with his
grievance nor state any fact or extenuating circumstance
which would give the Union any reason to proceed.
CONCLUSIONS OF LAW
1. Jack M. Roth Company is an employer within the
meaning of Section 2 (2) of the Act engaged in commerce
and in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act and the volume of its
business exceeds the direct outflow standard of the Board
for the assertion of jurisdiction.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not , on this record , engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(bx1)(A) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.