Teamsters, Local 70

National Labor Relations Board - Board Decisions

Jun 16, 1971

191 N.L.R.B. 227 (N.L.R.B. 1971)

TEAMSTERS , LOCAL 70 227
Brotherhood of Teamsters & Auto Truck Drivers Lo-
cal No. 70, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America
and Grinnell Company of the Pacific . Case 20-CB-
2172
June 16, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On March 19, 1971, Trial Examiner Stanley Gilbert
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in certain
unfair labor practices alleged in the complaint, as set
forth in the attached Trial Examiner's Decision. There-
after, the General Counsel filed timely exceptions to the
Trial Examiner's Decision 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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Trial Examiner: Based on a charge
filed on January 21, 1970, by Grinnell Company of the Pa-
cific, hereinafter referred to as Grinnell or the Company, the
complaint herein was issued October 29, 1970. The complaint
alleges that Brotherhood of Teamsters & Auto Truck Drivers
Local No. 70, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, referred
to hereinafter as the Respondent or the Union, violated Sec-
tion 8(b)(1)(A) of the Act by citing Charles Frizado, an em-
ployee of Grinnell, to appear before the Respondent's execu-
tive board and by finding him. Respondent, in its answer,
denies that it violated the Act as alleged in the complaint.
Pursuant to notice, a hearing was held in San Francisco,
California, on January 7 and 11, 1971. Appearances were
entered on behalf of all of the parties and briefs were received
from them within the time designated therefor.
191 NLRB No. 43
Upon the entire record in this proceeding and my observa-
tion of the witnesses as they testified, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Grinnell, a California corporation, has a plant located in
Emeryville, California, and at all times material herein has
been engaged in the wholesale sale and distribution of metal
pipe and pipe fittings. During the calendar year preceding the
issuance of the complaint, Grinnell, in the course and con-
duct of its business operations, purchased and received at its
facilities in the State of California goods and products valued
in excess of $50,000 directly from suppliers located outside
the State of California.
As is admitted by Respondent, Grinnell is, and at all time
material herein has been, an employer engaged in commerce
and operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by the Respondent, it is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
It is alleged in paragraph VI of the complaint as follows:
(a) At all times material herein, Respondent has been
the exclusive representative for the purposes of collective
bargaining, of all truck drivers employed by Grinnell at
its plant in Emeryville, California.
(b) At all times material herein, Respondent and
Grinnell, have been parties to a collective bargaining
agreement, covering the employees in the unit described
above in paragraph VI(a), effective, on its face, from July
1, 1967 to June 30, 1970.
The aforesaid allegations are admitted' by Respondent and
found to be supported by the record.
It is alleged in paragraph VII of the complaint as follows:
(a) On or about December 18,,1969 and continuing
thereafter, Respondent disciplined employee Charles
Frizado by. citing him to appear before Respondent's
Executive Board for exercising rights guaranteed to him
in an oral arrangement construing certain working con-
ditions encompassed by the collective bargaining agree-
ment described above in paragraph VI(b). ,
(b) On or about January 13, 1970 and continuing
thereafter, Respondent fined employee Charles Frizado
for exercising rights guaranteed to him in an oral ar-
rangement construing certain working conditions en-
compassed by the collective bargaining agreement de-
scribed above in paragraph VI(b).
In its answer, Respondent denies the entire paragraph VII of
the complaint. It appears from the record, however, that the
Respondent does not dispute that it cited Charles Frizado to
appear before Respondent's executive board on December 18,
1969, and that on about January 13, 1970, it fined Frizado the
sum of $171,.
The aforesaid collective-bargaining agreement contains, in-
ter alia, the[ following provision in section 11C thereof:
Whenever possible, and when desired by the employee,
he may stagger or spread his vacation period throughout
the year. However, in no case shall any portion of a
vacation be less than one (1) week.
It is undisputed that Frizado took a 2-day vacation on
November 6' and 7, 1969, and a 3-day vacation on December
4, 5, and 8, 1969.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears that the citation and fine were based upon a
charge brought by William Botelho, who at the time and for
approximately 7 years prior thereto, served as shop steward
at the Company's Emeryville plant. It further appears that
the charge recited that Frizado had taken his vacation in
increments of 2 days and 3 days on the aforementioned dates.
According to the Bill of Particulars filed by General Coun-
sel, the oral arrangement referred to in paragraph VII(a) and
VII(b) of the complaint was entered into by the Company's
Branch Manager Kurt Schroers "and/or" Warehouse Super-
intendent Louis Wilson on behalf of the Company and Shop
Steward William Botelho on behalf of Respondent. It is fur-
ther alleged in the Bill of Particulars that the oral arrange-
ment was made on December 3, 1969, and that the aforesaid
arrangement was "to permit employee Charles Frizado to
take a vacation consisting of less than 1 week and Botelho
thereafter gave oral approval to employee Charles Frizado to
take a vacation of less than one week."
It is well established that a union does not violate the Act
by levying fines against its members in support of a legitimate
union interest. N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S.
175, and Scofield v. N.L.R.B., 394 U.S. 423. It would appear
that union members' adherence to the terms of a collective-
bargaining agreement under which they are working consti-
tutes a legitimate union interest. It follows that Respondent's
citing Frizado and levying a fine against him for splitting his
vacation in increments of less than 1 week (contrary to the
aforementioned provision of the collective -bargaining agree-
ment under which he was working which prohibited such
action) would not, without more, constitute a violation of the
Act. During the course of the hearing the General Counsel
apparently so conceded.
The General Counsel contends, however, that certain con-
duct of Botelho introduced circumstances that made Re-
spondent's action against Frizado (which would otherwise
have been lawful) unlawful. The said alleged circumstances
may be summarized as follows: (1) that Botelho on behalf of
the Union entered into an oral agreement with Grinnell to
permit Frizado to take his vacation in increments of less than
1 week; and (2) that Botelho's motive in filing the charge
against Frizado was to support his own grievance against
Grinnell for having laid him off and, therefore, the ensuing
citation and fine were not in support of a legitimate union
interest but rather, in the circumstances, were "arbitrary and
invidious." In addition, the Charging Party argues that
BoteIlio informed Frizado that he could take his 3-day vaca-
tion in December and, therefore, the Union was estopped
from lawfully fining him for proceeding to take his vacation
in reliance on Botelho 's representation.
Schroers became branch manager of the Emeryville plant
in'the latter part of October 1969. Shortly thereafter, in order
to work out the vacation schedules for those employees who
had not taken all of the vacation due them, he called in
Frizado and, upon Frizado's request, agreed that Frizado
could take his week 's vacation split into the aforementioned
2 days in early November and 3 days in early December. It
appears that, at the time, Schroers was not aware of the
provision in the collective-bargaining agreement which pro-
hibited splitting employees ' vacations into increments of less
than 1 week, but that Frizado was aware of it. It further
appears that Schroers was not made aware of such provision
until just before Frizado took the remaining 3 days of his
vacation in December. It is found from the credited evidence
of'Botelho that it was not until a day before Frizado was due
to start his 3-day vacation in December that he (Botelho)
learned of Frizado's vacation arrangement.' Botelho's cred-
ited testimony with respect thereto is as follows:
He [Wilson] told me, he said, "Chuck is going to be off
three days on vacation so that will give me time to work
on his truck." I then asked Wilson how did he end up
with three days on his vacation and he proceeded to tell
me he took the 4th, 5th and 6th of November. [The
correct dates are November 6 and 7.] I then told him, I
said, "He can't do that. It is against the contract." Lou
shrugged his shoulders and walked off. Then I proceeded
up to Mr. Frizado ....
Botelho then confronted Frizado with respect to his having
arranged to split his vacation. There is some confusion in the
record as to whether this occurred on December 2 or 3. It is
inferred that it occurred in the morning of December 3.
Botelho testified to his conversation with Frizado as follows:
He was out in front of the bay tying his truck. I walked
up and I said, "Chuck, you know it is against the rules
to split your vacation." He turned to me and he said,
"You are not my boss. Kurt Schroers is my boss and he
wants me to use my vacation up." I decided there was
no use in saying anything by the tone of his voice because
he would get into a fight. I turned around and I said,
"O.K., I will go see the boss." That is when I proceeded
to Mr. Schroers's office.
Frizado's testimony is consistent with the above-quoted tes-
timony of Botelho, and, in addition, Frizado testified that he
admitted to Botelho that he knew he could not split his
vacation into increments of less than 1 week. Botelho's above
testimony is credited as well as Frizado's testimony with
respect to his aforesaid admission.
Botelho then proceeded to Schroers' office and, according
to his credited testimony, he asked Schroers if he knew
Frizado was splitting his vacation (ostensibly in increments
of less than 1 week); Schroers asked him what was wrong
with that; he pointed out to Schroers the provision in the
contract which prohibited such action; Schroers said, "What
do you want me to do? He has got it coming, I have got to
pay him"; and Botelho replied, "I guess there is nothing you
can do. It is a union problem." Schroers testified that he was
not aware of the provision in the contract against splitting
vacations and his further testimony with respect to their con-
versation was consistent with that of Botelho except that he
could not recall referring to the contract. However, he admit-
ted it was possible that it could have happened. Further,
Schroers admitted that he understood from his conversation
with Botelho that Botelho did not agree to Frizado splitting
his vacation.
After his above-outlined conversation with Schroers,
Botelho then spoke with Frizado. According to Frizado, he
(Frizado) was standing next to Albert Nobriga, shipping fore-
man, when Botelho walked up to him. Frizado and Nobriga
testified that Botelho stated to Frizado that he "had it all
fixed up" with Schroers for Frizado to go ahead and take his
vacation and that Botelho also cautioned Frizado not to let
it happen again . On the other hand, Botelho testified that
when he spoke to Frizado the second time that day he merely
said, "Chuck, I talked to Schroers and I will take care of it."
Botelho denied that he said anything to Frizado to the effect
that it was all right to take his vacation on a split basis or that
he cautioned him not to let it happen again. He further-tes-
tified that he did not notice whether Nobriga was present at
the time. Further, Botelho testified that he told-Frizado that
he "was going to cite him" and explained that that was con-
' Frizado testified that he did not tell Botelho of his arrangement to split his vacation because he knew it was prohibited.
TEAMSTERS , LOCAL 70 229
veyed to Frizado when he told him he " was going to take care
of it."2
Louis Wilson, who was warehouse superintendent from
October 1969 to December 15, 1970, testified that he had a
conversation with Botelho apparently on the morning of
December 3. His testimony with respect thereto is as follows:
The witness: The conversation began like this, that he
had been into the office talking to Mr. Schroers about
Mr. Frizado's vacation and he asked me did I know that
he had split his vacation and I said I did, that I gave him
permission to split his vacation. He asked me did I know
that that was against the contract or against the rules
and I didn't.
And so he said it was all right for him to do it this
time, but don't let it happen again.
Botelho denied that he had ever had such a conversation with
Wilson. It appears from Botelho's testimony that he only had
one conversation with Wilson that morning about Frizado
and that it occurred prior to his confronting Frizado and,
therefore, prior to his conversation with Schroers.' The Trial
Examiner is of the opinion that Botelho's denial of a conver-
sation with Wilson after confronting Frizado should be cred-
ited. The testimony of Botelho and Schroers clearly indicated
that in their conversation Botelho did not agree to or approve
of Frizado splitting his vacation. It appears unlikely that
immediately thereafter Botelho informed Frizado or Wilson
that he did approve of it. Botelho's testimony that he stated
to Frizado, "I will take care of it" is too ambiguous to be
construed as indicating that he approved or, for that matter,
disapproved of Frizado taking a split vacation. It does appear
likely, and it is inferred, that Botelho warned Frizado not to
split his vacation again, as Norbiga and Frizado testified,
which warning coupled with Botelho's statement that he
would "take care of it" could have been construed by Nobriga
and Frizado as meaning that Botelho had "it all fixed up"
with Schroers as they testified.
It is concluded that General Counsel has failed to sustain
his contention that there was an agreement between the Com-
pany and Respondent that Frizado could split his vacation.
Frizado's arrangement to take a split vacation was made in
the latter part of October or the first part of November and
Frizado took the first 2 days of his split vacation in early
November. It was not until December 3 that Botelho learned
of the arrangement. Thus, the split vacation was a fait accom-
pli when Botelho learned about it. It does not appear from
the credited evidence that it is appropriate to conclude that
the Union through Botelho's conduct retroactively agreed to
Frizado's split vacation.' At the most, it appears that, after
Schroers pointed out to him that Frizado had 3 more days'
vacation due him, Botelho did not object to Frizado complet-
ing his split vacation, that he merely acquiesced in Schroers'
statement of Grinnell's obligation to give Frizado the balance
of his vacation.'
t It does not appear that Frizado could reasonably have understood the
meaning Botelho testified he intended.
' Botelho's testimony, which is quoted hereinabove and which is cred-
ited, is that he learned about Frizado's split vacation from Wilson in his
conversation with Wilson that morning.
° It is clear that Botelho made no such agreement with Schroers and it
appears from his credited testimony that he made no such agreement with
Wilson
5 It is noted that Frizado testified that he did not know of any occasion
when Botelho "made any kind of an arrangement that would be different
when the contract for one of the employees " There is no showing that
It appears that the Charging Party 's contention that the
Respondent was estopped from lawfully fining Frizado for
taking his 3 -day vacation in December is not well conceived.
Frizado was fined for taking a split vacation starting on
November 6 and 7 and , therefore , the argument that he took
his split vacation in reliance on a representation by Botelho
not made until December 3 could not constitute a basis for
finding that Respondent was estopped from lawfully finding
him. The conduct for which he was fined commenced a
month prior to the representation upon which the Charging
Party claims Frizado relied . Frizado testified that at the time
he arranged to take the split vacation he knew that it was
prohibited by the union contract and that because he was
aware of the prohibition he did not tell Botelho of the ar-
rangement. Thus, it cannot be said that he took his vacation
on a split basis in reliance upon a representation by Botelho.
By letter dated December 2, 1969 , Botelho was notified
that he was being laid off due to the "slackness of work."
According to Botelho 's testimony , which is credited, on the
evening of the day he confronted Frizado with splitting his
vacation and stated his objection to the arrangement to
Schroers, Botelho reported Frizado 's action to Union Agent
Bob Windsor, who told him to fill out a citation and leave it
at the union office . Botelho testified that this was on the
evening of December 2. However, it appears that the report
to Windsor was made on the evening of December 3. The
following morning Botelho left the citation form (which was
partially filled out by Botelho) at the union office. This form
contained the charge by Botelho that Frizado took a split
vacation of 2 days in November and 3 days in December.
It is the General Counsel 's contention that Botelho's mo-
tive in filing the charge against Frizado was to bolster the
grievance he filed against Grinnell for laying him off. It ap-
pears that a basis ' of the grievance was that he was laid off
because he protested Frizado's split vacation. In effect, the
General Counsel argues therefrom that because Botelho was
a union steward (and thus an agent of Respondent ) and his
motive in filing the charge against Frizado was for personal
reasons, Respondent 's citing of Frizado and fining him were
unlawful in that they were not in implementation of a legiti-
mate union interest.
The Trial Examiner is of the opinion that the record cannot
support a finding that Botelho's motive in filing a charge
against Frizado was to bolster his grievance against Grinnell.
Frizado credibly testified as follows:
Q. Would it be a fair statement, then , Mr. Botelho had
the reputation among the drivers of being very insistent
upon sticking to the letter of the contract?
A. Yes, very.
Q. And he enforced the contract against Grinnell to
make sure there would be no violations , isn't that right?
A. That is true.
Q. And he had that reputation, didn't he?
A. Yes.
The Trial Examiner is of the opinion that Botelho brought
the charge against Frizado in accordance with his reputation
of being a strict constructionist of the union contract. It does
not appear that Botelho had any reason to believe that Schro-
ers would dispute the fact that he (Botelho) had protested
Frizado splitting his vacation and, therefore , it is unlikely
that Botelho would have believed it necessary to file a charge
against Fnzado in order to establish that he had made such
a protest. In addition , even if it be assumed that he believed
it necessary , it appears unlikely that on the very same day he
received notice of his layoff he would have exercised the
extraordinary foresight to bring a charge against Frizado in
Botelho ever made such an arrangement for any employee.
230 DECISIONS'OF NATIONALL1ABOR RELATIONS BOARD,
order to support a grievance with respect to his layoff. (It
appears that Botelho made the protest on the morning of
December 3 before he received notice of his layoff, but, con-
trary to his testimony, it is found that he notified the union
agent of Frizado 's split vacation on the evening of December
3, subsequent to receiving his layoff notice.)'
It is, therefore, concluded that General Counsel has failed
to sustain his contention that Botelho's motive for filing a
charge was to bolster his grievance against Grinnell, and that
there is no merit to General Counsel's argument that the
citation issued against Frizado and his fine were not to imple-
ment a legitimate union interest.?
' Botelho testified that he protested the split vacation on December 2,
notified Windsor on the evening of December 2 and received his notice of
layoff on December 3.
' This conclusion should not be construed as an indication that, if Botel-
ho's motive had been as contended by General Counsel, it would have been
found that the citation and fine were unlawful. This issue has not been
considered, in view of the disposition of the premise upon which General
Counsel bases his contention that Respondent 's action was not to implement
a legitimate union interest.
Upon the, basis of the foregoing findings of fi ct`and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Grinnell is , and at all times material herein has been, an
employer engaged in commerce and operations affecting
commerce within the meaning of Section 2(2), (6),,and*(7) of
the Act.
2. The Respondentais, and at all times , material herein-has
been, a labor organization within ,, the-meaning of Section 2(5)
of the Act.
3. The :General Counsel has failed_to prove by a preponder-
anoe _of the evidence the allegations4n the:.complaintFthat
Respondent violated Section S(b)('I)(A) ofathe;A''ctb cWng5,
Frtzado to appear before R'espondent's executive board of or,
about December -18, 1969; and by,,fining him an or `about'
January 13, 1970..
Upon the foregoing findingsof 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 herein should be, and is hereby, dismissed
in its entirety.