Lee Way Motor Frieght, Inc.

National Labor Relations Board - Board Decisions

May 20, 1977

229 N.L.R.B. 832 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Teamsters, General
Drivers, Chauffeurs and Helpers Local Union No.
886 (Lee Way Motor Freight, Inc.) and Donald J.
Feeney. Case 16-CB-I 110
May 20, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On December 1, 1976, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
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 this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
In this proceeding, the Respondent, International
Brotherhood of Teamsters, General Drivers, Chauf-
fuers and Helpers Local Union No. 886, is alleged to
have violated Section 8(b)(1)(A) of the Act through
certain statements of one of its stewards, Richard
Siers. The Administrative Law Judge found that Siers
was not acting in his capacity as a steward when he
made the statements General Counsel alleges as
violations, and accordingly recommended dismissal
of the complaint. We disagree with the Administra-
tive Law Judge's conclusions for the reasons set forth
below.
The Employer involved here, Lee Way Motor
Freight, Inc., an interstate motor carrier, employs
approximately 1,200 over-the-road truckdrivers. Re-
spondent represents these truckdrivers, utilizing
approximately seven stewards, with other stewards
for dockhands, warehousemen, and other employees.
In December 1975, an intraunion election was held
among Respondent's members. Employees Jack
Farrell and Donald Feeney supported Jack Boat-
man, a fellow union member, who ran against the
incumbent, B. H. Pannel, for presidency of Respon-
dent. Pannel won the election. Thereafter, Farrell
filed protests of the election with various authorities,
including Respondent's International and the U.S.
Department of Labor, and Farrell and Feeney also
circulated petitions to Respondent's members re-
questing an investigation into alleged irregularities in
the election.
On February 2 or 3, 1976, Union Steward Siers
spoke with Farrell's wife. During the approximately
l-l1/2-hour conversation, Siers asked Mrs. Farrell,
"What's Jack trying to prove . . . You know if Jack
goes through with this thing he's going to get fired."
During a second conversation alleged to be violative
of the Act, Siers encountered Feeney at a truckstop
in Brazil, Indiana. After some discussion, Siers said,
"Feeney, I'm telling you right now you had better get
out of this election protest. You're going to fool
around and throw this [Union] into a receivership. If
you should get fired there will be no one [to] back
you." The General Counsel alleges Respondent
violated the Act through these remarks of Siers.
As noted, however, the Administrative Law Judge
found that Siers was not acting in his capacity as a
union steward when he made the remarks and,
accordingly, he found the remarks were not imput-
able to Respondent. In finding Respondent was not
so chargeable, the Administrative Law Judge con-
cluded that Respondent's bylaws and the parties'
collective-bargaining agreement, in which the duties
of a steward are spelled out, nowhere manifested to
third parties a delegation of authority to stewards in
the areas in which Siers chose to act.
We note, however, that Section 2(13) of the Act
provides that:
In determining whether any person is acting as an
"agent" of another person so as to make such
other person responsible for his acts, the question
of whether the specific acts performed were
actually authorized or subsequently ratified shall
not be controlling.
Rather, responsibility attaches if, applying the
"ordinary law of agency," it is made to appear the
union agent was acting in his capacity as such. Local
760, International Brotherhood of Electrical Workers,
A.F. of L. (Roane-Anderson Company), 82 NLRB 696,
712 (1949). And, as the Board has indicated in
International Longshoremen's and Warehousemen's
Union, C...0., Local 6, et al. (Sunset Line and Twine
Company):
A principal may be responsible for the act of his
agent within the scope of the agent's general
authority, or the "scope of his employment" if the
agent is a servant, even though the principal has
not specifically forbidden the act in question. It is
enough if the principal actually empowered the
229 NLRB No. 132
832
TEAMSTERS, LOCAL UNION NO. 886
agent to represent him in the general area within
which the agent acted.'
As the Second Circuit in N. L.R. B. v. Local Union No.
3, International Brotherhood of Electrical Workers,
AFL-CIO [New York Telephone Company],2 noted,
"[c]ommon law rules of agency govern; authority
may be implied or apparent, as well as express."
In the instant case, we note that Respondent's
bylaws and the parties' contract give stewards, inter
alia, the responsibility and power to investigate and
present grievances to management. Further, the
bylaws also give stewards the power to transmit
messages and information originating from and
authorized by Respondent. 3 While the record indi-
cates that stewards cannot refuse a grievance, they
are able to express their opinion on its merits.
On the basis of all the foregoing, we conclude that
Siers was acting within the scope of his authority
when he made the threats to Mrs. Farrell and
Feeney. As noted above, it is clear that Siers' express
authority was that of an agent of Respondent to
receive, process, investigate, and insure employer
compliance on employee grievances concerning
wages, hours, and working conditions and to trans-
mit messages from Respondent to its members.
Although it is clear from the record that Respon-
dent's stewards are not empowered to refuse to
accept a grievance, this policy is not reflected in the
contract or Respondent's bylaws. In addition, there
is no evidence in the record which reflects that
individual members of Respondent knew or should
have known that this was the case. Accordingly,
rank-and-file members of Respondent, when faced
with statements of Respondent's stewards that the
Union would get them fired and/or not represent
them, would believe these statements or threats to
have meaning as they were coming from an agent
whose basic responsibility was that of administering
the grievance machinery on behalf of the Union.4
The threats of Siers were therefore in the area of his
apparent authority as steward and he, by virtue of his
stewardship, was apparently capable of effectuating
them. 5 In addition, he had access to information of
both the Union's and Employer's intentions from the
Union's hierarchy (or the Employer) by virtue of his
79NLRB 1487, 1509(1948).
2 467 F.2d 1158 (1972).
3 This latter duty is limited by the admonition that such messages and
information
a. have been reduced to writing, or
b. if not reduced to writing, are of a routine nature and do not
involve work stoppages, slow-downs, refusal to handle goods, or any
other interference with the Employer's business.
4 It is argued that the fact that Siers was a friend of Farrell precludes a
finding that his statements were coercive. While Siers may have intended his
statements to be "friendly," that is no defense in the circumstance of this
privileged position, and he was in a position, by
virtue of being able to express his view of the merits
of a grievance, to affect the action of Respondent
concerning it.
Accordingly, we find Respondent violated Section
8(b)(1)(A) of the Act through Siers' remarks.6
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall recommend
that it cease and desist therefrom and take such
affirmative action necessary to effectuate the purpos-
es of the Act.
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Gen-
eral Drivers, Chauffeurs and Helpers Local Union
No. 886 is, and at all material times has been, a labor
organization within the meaning of Section 2(5) of
the Act.
2. By threatening to cause the discharge of an
employee if he persisted in protesting Respondent's
intraunion election, and by threatening an employee
that Respondent would not represent him should he
be fired if he did not refrain from pursuing protests
to Respondent's intraunion election, Respondent has
violated Section 8(b)(IXA) of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
International Brotherhood of Teamsters, General
Drivers, Chauffeurs and Helpers Local Union No.
886, Oklahoma City, Oklahoma, its officers, agents,
and representatives, shall:
I. Cease and desist from:
(a) Threatening to cause the discharge of employ-
ees if they persist in protesting Respondent's intra-
union election.
case to the coercive nature of the statements. See Dixisteel Buildings, Inc.,
186 NLRB 393, 402 (1970); N.LR.B. v. Marval Poultry Company, Inc., 292
F.2d 454 (C.A. 4, 1961).
s The Board has noted in other instances that "lal steward is the first
union representative the members look to, and the man from whom they
take their cues insofar as union policy is concerned." United Brotherhood of
Carpenters & Joiners of America, Local Union No. 2067, AFL-CIO. et al.
(Batterman Construction, Inc.). 166 NLRB 532, 540 (1967); Glaziers &
Glassworkers Local No. 513 (Linclay Corporation of America), 191 NLRB
461,465 fn. 10(1971).
s Cf. Local 761. International Union of Electrical, Radio and Machine
Workers, AFL CIO (General Electric Company), 126 NLRB 123. 125 (1960).
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening employees that Respondent would
not represent them if they are fired unless they
refrain from protesting Respondent's intraunion
election.
(c) In any like or related manner restraining or
coercing employees of the Employer, its successors,
or assigns, in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at all its offices and union halls copies of
the attached notice marked "Appendix." 7 Copies of
said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by
Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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 after receipt of unsigned copies of
said notice from the Regional Director, return to him
a sufficient number of signed copies for posting by
Lee Way Motor Freight, Inc., if the latter is willing,
at all places where notices to employees are custom-
arily posted.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to cause your discharge
of threaten you with a refusal to represent you
because you protest against our internal union
election.
WE WILL NOT restrain or coerce you in any like or
related manner in the exercise of your rights
guaranteed in Section 7 of the National Labor
Relations Act.
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, GENERAL
DRIVERS, CHAUFFEURS
AND HELPERS LOCAL
UNION No. 886
DECISION
STATEMENT OF THE CASE
HENRY L. JALETrE, Administrative Law Judge: This
proceeding involves allegations that a union steward
threatened employees with discharge if they continued in
their efforts to overturn an intraunion election of officers
and that Respondent thereby violated Section 8(bXIXA) of
the Act. The proceeding was initiated by a charge filed by
Donald J. Feeney, an individual, on March 23, 1976.1 The
charge was amended on April 23, and complaint issued on
May 11. On July 28, hearing was held in Oklahoma City,
Oklahoma.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs of the
parties, I make the following:
FrNDINGS OF FACT
A. The Facts
Lee Way Motor Freight, Inc., is an interstate motor
common carrier with a facility at Oklahoma City, Oklaho-
ma. 2 At the times material herein, Lee Way employed
about 1,200 over-the-road truckdrivers who were represent-
ed by Respondent. Lee Way and Respondent were parties
to the National Master Freight Agreement and Southern
Conference Area. Donald Feeney and Jack Farrell are
members of Respondent and employed by Lee Way as
over-the-road truckdrivers on the East Wheel (that is, runs
east of Oklahoma City). Richard Siers was the union
steward on the East Wheel.
In the period between December I and December 6,
1975, Respondent had an election of officers. Feeney and
Farrell supported one Jack Boatman for president. The
incumbent was B. H. Pannel and he won. Thereafter,
Farrell filed a protest of the election through various
organizational units of the Teamsters Union to the
International, alleging several irregularities in the conduct
of the election. On March 15, no decision having been
rendered on his protest, Farrell filed a complaint with the
U. S. Department of Labor pursuant to Section 402(a) of
the Labor-Management Reporting and Disclosure Act of
1959.
In addition to filing a protest, and while the matter was
pending, Farrell, aided by Feeney and others, circulated
petitions among the members of Respondent requesting an
investigation into election irregularities. Feeney, in addi-
tion, sold raffle tickets and sponsored an affair at his wife's
bar to raise money for attorney fees in connection with the
protest.
I Unless otherwise indicated, all dates are 1976.
2 Jurisdiction is not in issue. Lee Way meets the Board's standard for the
assertion ofjurisdiction over common carriers.
834
TEAMSTERS, LOCAL UNION NO. 886
Farrell and his wife had met together socially with Siers
and his wife during their employment together and, on
February 2 or 3, Siers called Farrell's home and spoke to
Mrs. Farrell. According to her, Siers asked her what Jack
was trying to prove. She said she did not know what he
meant and Siers said "if Jack goes through with this thing
he's going to get fired."
On March 6, Feeney encountered Siers at a truck stop in
Indiana and they had a conversation in which, according
to Feeney, Siers suggested Feeney get out of the protest
action stating "You're going to fool around and your're
going to get yourself in trouble hanging around with that
Farrell bunch," and "You're going to fool around and
throw this [Union ] into a receivership," and "If you should
get fired there will be no one [to] back you."
B. Analysis and Conclusions
General Counsel contends that the remarks of Siers
described above constituted threats violative of Section
8(b)(1)(A) of the Act. Respondent denies any violation of
the Act, asserting that Siers did not make the remarks
attributed to him; that, if made, the remarks described
were too vague and ambiguous to be coercive; that they
were made out of friendship and directed at the interests of
the employees, or during heated exchange and banter; and
that, in any event, Respondent is not liable for Siers'
remarks.
I see no need to discuss each of these defenses, because
while I credit Mrs. Farrell's and Feeney's versions of their
conversations with Siers, I conclude that Respondent is not
chargeable with Siers' threatening statements. In crediting
Mrs. Farrell and Feeney, I rely on the fact that both
appeared to me to be candid and, although both could be
said to be interested witnesses in the sense that both (Mrs.
Farrell indirectly so) are opposed to the incumbent
president of Respondent, I cannot believe that such interest
would be so compelling as to mislead them into giving false
testimony for the sake of a cease-and-desist order and a
notice-posting requirement.
In asserting that Respondent is liable for Siers' remarks,
General Counsel adverts to Section 2(13) of the Act,3 and,
while conceding, as he must, that there is no evidence that
Respondent authorized Siers to make the remarks in
question, he asserts that Siers had apparent authority to do
so. "[A]pparent authority to do an act is created as to a
third person by written or spoken words or any other
conduct of the principal which, reasonably interpreted,
causes the third person to believe that the principal
consents to have the act done on his behalf by the person
purporting to act for him." Restatement (Second), Agency
§27 (1958). "Apparent authority is created by the same
method as that which creates authority, except that the
manifestation of the principal is to the third person rather
than to the agent. For apparent authority there is the basic
requirement that the principal be responsible for the
information which comes to the mind of the third person,
similar to the requirement for the creation of authority that
the principal be responsible for the information which
3 Sec. 2(13) provides:
In determining whether any person is acting as an "agent" of
comes to the agent. Thus, either the principal must intend
to cause the third person to believe that the agent is
authorized to act for him, or he should realize that his
conduct is likely to create such belief." Restatement
(Second), Agency §27, comment a (1958).
Applying these principles to the present case, one must
ask by what writings or conduct did Respondent manifest
to third parties that Siers was authorized to act in the area
in which he undertook to act. General Counsel points to no
conduct other than the fact that Siers was a steward, and
the only writing he relies on is that which sets forth the
duties of a steward. These duties are spelled out in
Respondent's bylaws and repeated in the collective-bar-
gaining agreement and, in brief, consist of nothing more
that the duty to investigate and process grievances.
Nothing in the delegation of authority to stewards in those
areas manifests to third parties a delegation of authority to
act in the area in which Siers chose to act.
In effect, General Counsel is arguing that Siers had real
authority to act as he did, that such conduct was within the
general area in which stewards are authorized to act. I do
not agree. Stewards are frequently limited or specific
agents as contrasted, for example, with business agents. In
this case, the bylaws of Respondent and the collective-
bargaining agreement clearly delineate the duties of
stewards, and members of Respondent and employees of
Lee Way were on notice of the extent of the stewards'
duties and authority. In my judgment, such duties did not
confer authority on Siers to act as he did.
In truth, it is evident that Siers was not acting in his
capacity as steward when he spoke to Mrs. Farrell and to
Feeney. The conversation which led to the remarks about
Farrell's possible loss of job were made in a conversation
attributable to a social history between the Farrells and
Siers rather than a steward-member relationship. The
Feeney-Siers conversation arose out of a chance encounter
when Siers, like Feeney, was engaged in his principal
function, that of truckdriver.
Finally, General Counsel asserts that Respondent may
be held liable for Siers' threats by reason of its failure to
disavow them. I find no merit to the assertion. Siers denied
making the threats alleged herein and presumably his
denials reflected what he told Respondent. Ratification
may not be inferred from a failure to disavow in such a
circumstance.
In light of the foregoing circumstances, I conclude that
Respondent Union is not liable for the statements of Siers
and I shall recommend dismissal of the complaint.
CONCLUSIONS OF LAW
I. Lee Way Motor Freight, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Brotherhood of Teamsters, General
Drivers, Chauffeurs and Helpers Local Union No. 886 is a
labor organization within the meaning of Section 2(5) of
the Act.
another person so as to make such other person responsible for his acts.
the question of whether the specific acts performed were actually
authonzed or subsequently ratified shall not be controlling.
835
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent is not liable for the statements of [Recommended Order for dismissal omitted from publi-
Richard Siers and, accordingly, did not violate Section cation.]
8(b)(1XA) of the Act as alleged in the complaint.