Highway, City & Freight Drivers

National Labor Relations Board - Board Decisions

Jul 28, 1980

250 N.L.R.B. 1127 (N.L.R.B. 1980)

HIGHWAY, CITY & AIRFREIGHT DRIVERS
Highway, City and Freight Drivers, and Dockmen
and Helpers, Local Union No. 600, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America (Commercial Lovelace, et al.) and
Hubert R. Thompson. Case 14-CB-4717
July 28, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PEN-ELLO, AND
TRUESDAI.E
On February 29, 1980, Administrative Law
Judge Frank H. Itkin issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Highway, City
and Airfreight Drivers, and Dockmen and Helpers,
Local Union No. 600, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen and Helpers of America, St. Louis, Mis-
souri, its officers, agents, and representatives, shall
take the action set forth in the said recommended
Order.
' Respondent has excepted to certainl credibility findings made by the
Administrative L as Judge It is the Board'h estahlished policy not to
overrule an administrative laws judge's resoluilons with respect tlo credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us ihat ihe resolutions are incorrect Standard Dry Wall Products:
Inc.. 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have
carefully examined ihe record and find no basis for reversing his findings
The Administrative Law Judge quoted. without specifically crediting,
Reaspondent president's testimony that leaflets which employees Roth and
Minor had passed out in opposition to the dues increase contained false-
hoods. We note ihat Respondent failed to prove, however. that any (f
the leaflets passed out by these employees contained falsehoods
DECISION
FRANK H. ITKIN, Administrative Law Judge: The
unfair labor practice charge in this case was filed on Oc-
tober 16 and the complaint issued on November 19, 1979.
The case was heard in St. Louis on December 19, 1979.
Briefly, General Counsel alleges that Respondent Union
violated Section 8(b)(1)(A) of the National Labor Rela-
tions Act by threatening to refuse to refer employees for
future employment and t, making other threats to em-
ployees because they had engaged in protected union ac-
tivities. Respondent Union denies that it has violated the
Act as alleged. Upon the entire record, including my ob-
servation of the witnesses, and after due consideration of
the briefs filed by counsel, I make the following findings
of fact and conclusions of law:
FINDINGS OF FACT
Commercial Lovelace, Frisco Transportation Compa-
ny, and McLean Trucking Company are admittedly em-
ployers engaged in commerce as alleged. Respondent
Union is admittedly a labor organization as alleged.
Theodore N. Welch is admittedly president of Respond-
ent Union and its agent as alleged.
Lee Roth testified that he was, until recently, em-
ployed by Frisco Transportation Company; that he is a
member and steward of Respondent Union; and that he
is also a member of the TDU (Teamsters for a Demo-
cratic Union) and PROD. Roth noted that the TDU and
PROD "are reform groups made up of members of the
Teamsters Locals . . . to work on abuses within the
Teamsters Union .... " Roth further testified that on
September 29, 1979, "there was a meeting of members of
our Union . .. " at the Lenox Hotel, "for information
about the $5 dues increase." Roth explained: ". . . there
was a proposal in our Union to increase our dues by $5
and some people were opposing it, and some people
were just trying to put out information on it that was
more accurate .... " Roth, as he testified, "passed out
copies of [a] fact sheet . . . at the meeting .... " Roth
and fellow employee Ken Manley "had put together"
this "fact sheet." (See G.C. Exh. 2.)
Roth recalled that subsequently, on October 8, 1979,
he had the following telephone conversation with Union
President Theodore N. Welch:
Well, he [Welch] called me at my home on Octo-
ber 8, at 9 o'clock approximately, and he said that it
was Teddy Welch, and I told him that I recognized
his voice because I had spoken to him before on the
telephone concerning other matters, and he said: "I
sent the lawyers over to the printers and I found
out that Manley put out this sheet." [G.C. Exh. 2.] I
said that Manley and myself had both worked on it.
He said: "Well, I'm going to get you bastards for
putting this stuff out; it's going to cost you your
job." He called me a jack-off, a mother fucker, and
said that I was going to lose my job, he was going
to kick me out of the Union, and that he was going
to make sure that I never got a job any place where
there was a union, and then he made a specific
statement, he said: "I'm going to kick you out of
the Union." I said: "Well, in other words, anybody
that disagrees with you, you are going to kick them
out of the Union?" He said: "Well, we've got our
ways of taking care of all you people who put out
this shit, this anti-union stuff, and you just don't
250 NLRB No. 109
1127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know how much power I have and I'm going to
use it on you."
He said: "I'm sending Tommy [Welch's nephew]
down to McLeans to straighten out Manley tomor-
row." I said: "Well, why don't you come down
there yourself." He said: "Well, I'm sending
Tommy down." I said: "If you're going to threaten
me like this, why don't you come down and do it in
front of the men and we can discuss it in front of
the men and we can discuss the issues in front of
the men." He said: "I'm sending Tommy down." I
said: "Why don't you come down?" He said: "Some
other jack-off has got me going to court tomorrow
so I can't come then." I said: "Can we meet with
you because we're considering some action, we're
considering a temporary restraining order to stop
the voting due to the inaccuracy and the lies that
the Union had put out, and the threats to the mem-
bership who would vote for this, and we want to
talk to you about that." He said that he could meet
with us next week, and I told him that next week
was too late. He said that that was the best he could
do and he then repeated: "I'm going to have you
fired; we've got ways of taking care of you and
that's all I've got to say." He then hung up.'
John Minor testified that he was employed, until re-
cently, by Commercial Lovelace; that he is a member of
Respondent Union; and that he too is a member of
PROD. Minor recalled that he, on behalf of PROD, dis-
tributed to members of Respondent Union "literature at
the Union hall" on October 14, 1979. General Counsel's
Exhibit 3 was identified by Minor as a copy of the litera-
ture which he distributed "at the Union hall on the elec-
tion day." Minor testified that Union President Welch
made the following statements to him while he was
"passing these documents out":
He [Welch] came up to me and he asked me
what I was doing, and I told him that I was giving
out literature, and he then said to me: "How about
signing one of them and giving it to me." I didn't. I
told him that I didn't think that I had to and that I
wouldn't.
He told me that he was going to bring me up in
front of the executive board and have my Union
book pulled.
Roth acknowledged on cross-examiliatioii that he has since heen fired
by Frisco Transporaltion Company as a consequence of an arguncnlt
with the Employer concerning a "space heater" Roth also acknowledged
that the Respondenl Union is "performing its function on Ihis] behalf in
connection with [his] reinstatement .. " at Frisco Transportation Com-
pany Further, Roth acknowledged that he initially had telephoned
Welch on October 8 and "left a message fior [Welch] to call." Roth ex-
plained
we'd been considering some . legal action on this $5 dues in-
crease. ., I wanted to have a meeting with him about that
He told me he didn't want to see me out at the
Union hall, and also that he didn't want to see me
in his office, and that he wouldn't help me get a
job, he wouldn't help me do anything.
Mike Rundell testified that he is a member of Re-
spondent Union; that he too is a member of PROD; and
that he "helped hand out these leaflets [G.C. Exh. 3] in
front of the hall" on October 14, 1979. Rundell recalled:
The only thing I seen, Mr. Welch poke [Minor]
with his finger and yelled out, "don't ever come to
my office no more for no help." And he [Welch]
said, "also, I'm going to take you before the execu-
tive board and try to get your book pulled." 2
Union President Welch testified that the Union "had
to raise dues" during 1979 as a consequence of an out-
standing judgment and related settlement of that obliga-
tion; that if "the $5 dues increase had not passed" the
Local would become "defunct"; that he actively cam-
paigned among the members for the "dues increase"; and
that about late September he first observed "opposition
literature to the settlement increase." Welch further testi-
fied, in part as follows:
Q. Did you undertake to find out in the course of
the campaign for the dues increase vote, where the
literature was actually coming from and who it was
that was distributing it?
A. Yes sir, what I did when I seen that one piece
which is the two-page report, I took that union bug
number off of it and I called the printer and I asked
the printer who had had this literature printed at his
firm.
At first he was uncooperative and I told him that
there was a law that says if you use your union bug
and you don't want to say who printed that litera-
ture, that you could be held accountable for its con-
tents. At that time, he told me that a friend of his,
which is Mr. Manley, had solicited that to be print-
ed, and his neighbor actually wrote the check for
the literature, and they came down and picked it
up.
Q. And did you have some encounter that you
can recall with Mr. John Minor on the 14th of Oc-
tober, on the day of the dues voting?
A. Yes sir, I did.
Q. Would you explain to us what that encounter
was about and what happened?
A. Well, later on in the afternoon I went out
there and seen who was passing the literature out, I
went out to talk to everybody. As everybody came
out there I talked with them, I shook their hand, I
2 O1 cross-exami nalion. Runldell claimed that Welch had stated to
Minor that he would "pull his hbook" Rundell acknowledged Ihat he
presently has a lawsuit pending against Rcspondenl IUnilon in Ihe United
States district coiurl.
1 128
HIGHWAY, CITY & AIRFREIGHT DRIVERS
thanked them for participating in the election. At
no time did I say vote for or vote against the dues,
just that I appreciated and thanked them very much
for participating in their Union affairs.
* * * * *s
Q. All right, go ahead, if you will, about the en-
counter then with Mr. Minor?
A. I went out there and I was just going around
talking to the various people that were passing out
literature and as I seen them passing literature out I
would ask them, you know, did they believe in the
literature, did they know, and I carried a copy of
our International constitution with it, that showed
that various statements in that literature was totally
untrue.
When I got to Mr. Minor, it surprised me, I had
known that he had been a member with the PROD
organization ever since I've known him and I asked
Mr. Minor, you know, it really shocked me to see
him passing literature out, and I said, John, what
have I done wrong, or what bothered you about
what took place on this dues increase? And he says,
"well, I'm just against it."
Arid I said, it just don't make sense, don't you
feel that you was a good enough friend of mine,
that we've been personal friends and been good
friends, that you couldn't have called me and asked
me and I could have cleared up some of the ques-
tions in regards to this? He said, "well, you know
that the dues structure has doubled since you've
been in office." And I said, that's true, John, I said,
but the main thing is the membership themselves
has always voted on a dues increase, you can't pass
a dues increase in our Local, and I said, it always
has passed everytime we have asked the members
for an increase it has passed by at least a four-to-one
or five-to-one margin.
Q. At anytime in the course of that conversation,
to your knowledge, did you make any threat to the
man?
A. No, sir, I didn't, not in regards to that.
Q. Can you recall ever physically touching him
or encountering him?
A. No, sir, it has been a policy of mine, I have
never touched a person in my life unless I have
done what I set out to do, but to touch a person
physically while I'm talking to him, I've never done
that in my life. I don't like people to touch me or
put their hands on me and I don't put my hands on
nobody unless I intend on doing a job.
Welch further testified, in part as follows:
Q. Can you recall, Ted, this conversation in early
October with Mr. Lee Roth?
A. Yes, sir.
Q. Telephone conversation?
A. Yes, sir.
Q. Have you had previous conversations with
Roth?
A. Yes, sir.
Q. And on the evening of that conversation, will
you tell us your recollection of the events that lead
to you placing a call to him.
A. Well, I got home, it was after 10:00 o'clock
that night, a little after 10:00 when I arrived home
and my wife keeps a thing by the phone there of
whoever calls our home, and she says "return this
call, return this call," and it has various calls. And
it is a practice that I have that I always return the
calls, and I made that night approximately 5 phone
calls, I don't know whether he was one of the first
or one of the last calls that I made that night, but I
did call Mr. Roth.
And I asked him, that I said that I had spoken
with Mr. Manley that day and that Mr. Manley had
informed me that he and Roth had written this lit-
erature and I wanted to know how they could write
literature like that and put the statements they put
in there, because there are quite a few of the state-
ments that were in there were totally untrue.
Q. Well, had you then for some reason initiated a
call to Roth or was he actually calling you?
A.I had put in a call, I don't know whether-no,
I told Manley when I spoke with Manley, I says,
now, I don't know Roth's home phone number, but
I had it at home that night, somebody had called
my home and talked to my wife. I would assume
that it was Mr. Roth that called my home. I don't
know because my wife took the call, like I say I
always have five or six calls when I get home at
night that I have to return.
Q. Now, in the course of the conversation, can
you recall, did you refer to Roth as a bastard?
A. I'll put it this way, I'd been up since 5:00
o'clock that morning for quite a few days and I
don't remember whether I did, about 8:30 that night
is when we quit visiting the barns, I stopped with a
few of the agents that was with me, we drank for a
couple of hours, had a few beers which is normal
for a human being and when I got home I made the
call. I do use profanity at times, I'm not going to
say I don't, but I did not say that I was ever going
to pull his book, I have never said that I will black-
ball a person or that I will ever fire a person. That's
something, it's not my character, I've never done it
since I've been in this Union.
Q. Is there anyway, if you wanted to do it in the
worst way, that you could do such a thing?
A. No, sir, there is no way that I could do the
things like that, it's not in my power and it's just
something that I don't do.3
I credit the testimony of Roth, Minor, and Rundell as
quoted supra. Their testimony is in part mutually cor-
3 Phillip Tapley testified that he is a member of Respondent Union;
that he is also a shop steward at Commercial Lovelace; and that he wit-
nessed a "conversation between Union president Welch and Minor, a
Union member." on October 14. Tapley claimed that he did not "hear
Welch [state] what [he] considered to be a threat of any kind to Mr.
Minor" Ben Watson, a member of Respondent Union and employee at
Commercial Lovelace, also claimed that Welch did not do or say any-
thing to Minor on October 14 "that [he] would consider to be a threat to
Minor."
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roborative. Their testimony is also substantiated in part
by the testimony of Welch. I am persuaded here that
Roth, Minor, and Rundell have accurately and carefully
recalled the cited statements and conduct of Union Presi-
dent Welch. Insofar as Welch's testimony contradicts the
testimony of Roth, Minor, and Rundell, I do not credit
Welch. He did not impress me as a trustworthy or reli-
able witness. Further, I do not credit the conclusionary
assertions of Tapley and Watson to the effect that Welch
did not threaten Minor as alleged. On this record, includ-
ing the demeanor of the witnesses, I find and conclude
that Welch, angered by the role of Roth and Minor in
opposing a union dues increase, made the statements and
engaged in the conduct attributed to him by Roth and
Minor.
Discussion
The controlling legal principles were restated by the
Board in United Steel Workers of America Local 1397.
AFL-CIO (United States Steel Corp.), 240 NLRB 848
(1979), as follows:
In judging whether or not [a union representa-
tive's] statements violated Section 8(b)(1)(A) of the
Act, the test of misconduct is not what [he] may
have subjectively intended by his comments, nor
whether any employee was in fact coerced or in-
timidated by the remarks. Rather, the test is wheth-
er the alleged offender engaged in conduct which
tends to restrain or coerce employees in the rights
guaranteed them in the Act. . . That an employ-
ee's right to engage in intraunion activities in oppo-
sition to the incumbent leadership of his union is
concerted activity protected by Section 7 is, of
course, elementary. Thus, we have previously held
that a threat to have an employee discharged in re-
taliation for that employee's dissent over intraunion
matters violates Section 8(b)(1)(A) of the Act. . .
We have likewise held that union threats to employ-
ees that the union would not represent them also
violates that section, particularly when made by a
union officer with the apparent capability of effec-
tuating the actions threatened. . Such is the case
before us.
Applying these principles to the credible evidence of
record here, as detailed supra, I find and conclude that
Union President Welch threatened Roth and Minor as al-
leged, in violation of Section 8(bXI)(A) of the Act.
Welch, angered over Roth's opposition to the proposed
dues increase, admonished the employee member: "I'm
going to get you bastards for putting this stuff out; it's
going to cost you your job"; he "was going to kick
[Roth] out of the Union and . . . he was going to make
sure that [Roth] never got a job any place where there
was a union"; and "we've got our ways of taking care of
all you people who put out this shit .... " Welch, in
like vein, warned employee member Minor: "he didn't
want to see [Minor] out at the Union hall . . . he didn't
want to see [the employee member] in his office and he
wouldn't help [the employee member] get a job, he
wouldn't help [the employee member] do anything."
Welch, at the same time, threatened to "have [Minor's]
Union book pulled." As the Board stated in United Steel
Workers, Local 1397, supra:
Such threats would obviously tend to chill employ-
ees in the exercise of their rights to engage in activi-
ties in opposition to the policies and activities of
Respondent's incumbent officers, for to do so would
be to run the risk of losing one's job while at the
same time being denied the representation to which
one is rightfully entitled in contesting that adverse
action. We find such statements prima facie tend to
restrain and coerce employees in the exercise of
their Section 7 rights.
CONCI USIONS OF LAW
1. Respondent Union is a labor organization as alleged.
2. Commercial Lovelace, Frisco Transportation Com-
pany, and McLean Trucking Company are employers
engaged in commerce as alleged.
3. Respondent Union violated Section 8(b)(1)(A) of the
Act by threatening to cause the discharge of an employ-
ee member; by threatening to refuse to refer employee
members for future employment; by threatening an em-
ployee member from working in the trucking industry;
by threatening an employee member with reprisals; by
threatening an employee member with internal union dis-
cipline; and by threatening an employee member with a
refusal to represent the employee member, because the
employee members had engaged in protected union ac-
tivities.
4. The unfair labor practices found above affect com-
merce as alleged.
RL MEDY
Having found that Respondent Union violated Section
8(b)(l)(A) of the Act, it will be ordered to cease and
desist from engaging in the conduct found unlawful
herein, and engaging in like or related conduct, and to
post the attached notice.
ORDER 4
Respondent Highway, City and Airfreight Drivers,
and Dockmen and Helpers, Local Union No. 600, affili-
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, St.
Louis, Missouri, its officers, agents, and representatives,
shall:
I. Cease and desist from:
(a) Threatening to cause the discharge of its employee
members; threatening to refuse to refer its employee
members for future employment; threatening its employ-
ee members from working in the trucking industry;
threatening its employee members with reprisals; threat-
ening its employee members with internal union disci-
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations oif the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, he adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes.
I 130
HIGHWAY. CITY & AIRFREIGHT DRIVERS
pline; and threatening its employee members with a re-
fusal to represent them, because the employee members
have engaged in protected union activities.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its offices and meeting places in and about
St. Louis, Missouri, copies of the attached notice marked
"Appendix. " s Copies of said notice, on forms provided
by the Regional Director for Region 14, after being duly
signed by Respondent's authorized representative, shall
be posted by 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 Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Forward signed copies of said notice to the Re-
gional Director for Region 14 for posting by Commer-
cial Lovelace, Frisco Transportation Company, and
McLean Trucking Company, if willing, in conspicuous
places, including all places where notices to employees
are customarily posted.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
" In the event that this Order is enforced by a Judgmentl of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Courl of Appeals
enforcing an Order of the National Lahor Relations Board"
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THI
NATIONAL LABOR REL.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT threaten to cause the discharge of
our employee-members; threaten to refuse to refer
our employee-members for future employment;
threaten our employee-members from working in
the trucking industry; threaten our employee-mem-
bers with reprisals; threaten our employee-members
with internal union discipline; and threaten our em-
ployee-members with a refusal to represent them,
because our employee-members have engaged in
protected union activities.
WE WIL L NOT in any like or related manner re-
strain or coerce employees in the exercise of their
rights protected by Section 7 of the Act.
HIGHWAY, CITY AND AIRFREIGHT DRIV-
ERS, AND DOCKMEN AND HELPERS, LOCAL
UNION No. 600, AFFILIATED WITH THE IN-
TERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA
1131