Teamsters Local 87

National Labor Relations Board - Board Decisions

Feb 7, 1985

273 N.L.R.B. 1838 (N.L.R.B. 1985)

1838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Teamsters and Food Processing Local 87,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
and Harry Shain and Don H. Williams and
James W. Carpenter. Cases 31-CB-5242, 31-
CB-5276, 31-CB-5419, and 31-CB--5299
7 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 28 June 1984 Administrative Law Judge Joan
Wieder issued the attached decision. The General
Counsel filed exceptions and a supporting brief,
and the Respondent filed cross-exceptions and a
supporting brief.
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge's rulings, findings, 1 and conclusions as modi-
fied 2 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are Incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or
1951) We have carefully examined the record and find no basis for re-
versing the findings
2 Chairman Dotson and Member Dennis agree with the judge's dismis-
sal of the 8(b)(1)(A) allegations pertaining to the 1 July 1983 incident at
the hiring hall In doing so, however, they find that Williams was not
engaged in protected concerted activity when he became involved in an
altercation with the office manager following his discovery of the Inad-
vertent omission of his name from an unofficial work dispatch list They
also find in these circumstances that Sham's failure to restrain Williams
did not constitute a refusal to Interfere with the protected activity of an-
other Accordingly, they find that further credibility resolutions are un-
necessary and that the Union did not violate Sec 8(b)(1)(A) when it fined
and disciplined Williams and Sham following this incident
Member Hunter finds merit to the General Counsel's exception that the
judge's finding that Williams threatened Harer is not presently supported
by the credited testimony and that the judge further erred in finding testi-
mony regarding the 1 July 1983 incident in the hiring hall "undisputed"
while failing to resolve clear inconsistencies in testimony as noted in her
earlier factual findings Accordingly, he would remand this portion of the
decision to the judge for appropriate credibility resolutions
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case
was tried before me on 15 and 16 February 1984 in Ba-
kersfield, California, on the General Counsel's complaint,
as amended, which alleges that the Respondent labor or-
ganization, General Teamsters and Food Processing
Local 87, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union or Respondent) engaged in violations of Section
8(b)(1)(A) and (2) of the National Labor Relations Act
Specifically, the General Counsel alleges that Re-
spondent violated Section 8(b)(1)(A) and (2) of the Act
by refusing to allow Don W. Williams, James Carpenter,
and Wendell Bell to register for employment and by fail-
ing and refusing to refer them for employment. Respond-
ent answers that these individuals are owner-operators
and, as such, have been previously ruled to be independ-
ent contractors, citing, among others, General Contractors
v. NLRB, 564 F.2d 271 (9th Cir. 1977); Teamsters Local
36 (California Dump Truck Owners), 249 NLRB 386
(1980), affd. 669 F 2d 759 (D.C. Cir. 1981), Associated In-
dependent Operators v. NLRB, 407 F.2d 1383 (9th Cir
1969); Teamsters Joint Council No. 42 v. NLRB, 671 F.2d
305 (9th Cir. 1981); Teamsters Joint Council No. 42 v. As-
sociated General Contractors of California, 520 F.Supp. 3
(1981), affd. per cunam 662 F.2d 531 (9th Cir. 1981),
cert. denied 109 LRRM 3016 (1982).
The General Counsel also asserts that the Union vio-
lated Section 8(b)(1)(A) of the Act by bringing charges
against, assessing fines on, and disciplining Don H Wil-
liams and Harry Sham. Respondent generally denies
committing any violations, asserting that Williams is not
protected since he is an independent contractor; the
Union's actions were solely matters related to the acqui-
sition and retention of membership, not their employ-
ment status; and Sham was not engaged in protected
concerted activity.
On the record as a whole, including my observation of
the witnesses, briefs, and arguments of counsel, I make
the following
FINDINGS OF FACT
I. BACKGROUND
The Union 1 has been involved in a series of legal pro-
ceedings involving owner-operators of dump trucks and
grading and excavating equipment wherein it was found
by two circuit courts of appeals that these owner-opera-
tors are independent contractors, not employees. The in-
stant proceeding involves owner-operators of water
trucks. Historically the Union has taken the position that
the owner-operators who hire out to contractors en-
gaged in construction are employees.
A partial precis of these decisions and the Union's re-
action thereto follows: In Associated Independent Owner-
Operators v. NLRB, supra, owner-operators of grading
and excavating equipment working on the jobsite, dig-
ging trenches, etc, were found to be independent con-
tractors, reversing the Board's decision.
In J. K Baker Trucking Co., 181 NLRB 515 (1970), the
Board found owner-operators of dump trucks working at
construction sites in southern California to be employees
This decision was affirmed in Teamsters Joint Council No.
42 v. NLRB, 450 F 2d 1322 (D.0 Cir. 1971). In response
' It is undisputed that the companies and associations contracting with
the Union are employers engaged in interstate commerce within the
meaning of Sec 2(2), (6), and (7) of the Act, and that the Respondent is a
labor organization within the meaning of Sec 2(5) of the Act
273 NLRB No. 225
TEAMSTERS LOCAL 87 1839
to this decision, the Union modified its master labor
agreement covering the heavy construction industry in
southern California to clearly treat owner-operators as
employees. 2
In 1971, certain of the owner-operators covered by the
master labor agreement filed a decertification petition.
The Board found the petitioners to be employees. Associ-
ated General Contractors of California, 201 NLRB 311
(1973).
2 Compare art. XIX, sec. 1903, of the 1965-1968 master labor agree-
ment, entitled "Owner-Operator," which provides, as here pertinent:
When a truck or piece of equipment is driven or operated by its
owner as an Independent contractor and is used on jobsite work cov-
ered by this agreement, the owner-driver or operator of said truck,
or piece of equipment, shall receive a rate of pay not less than that
specified in this Agreement. Such operator shall be, and remain, a
member in good standing of the Union, and shall have a valid, cur-
rent clearance from the Local Union covered by this Agreement
having area jurisdiction.
with art. XIX, secs 1900, 1901, 1902, 1917, and 1918, which provide:
ARTICLE XIX
OWNER-OPERATOR
1900. Owner-Operator is an individual that holds legal or regis-
tered title to a motor vehicle or to the power equipment unit thereof
in his name and who personally drives such vehicle or unit in the
performance of work covered by this Agreement.
1901. The Contractor expressly reserves the right to control the
manner, time, means and details of, and by which the Owner-Opera-
tor performs his services, as well as the ends to be accomplished, and
shall be the sole judge of the capability of the Owner-Operator's
equipment to perform the work required to be performed and may if
the Contractor determines that the Owner-Operator's equipment is
not capable of performing the work required to be performed, termi-
nate such Owner-Operator's services; provided, however, that the
Owner-Operator may file and process a grievance under Paragraph
1919 hereof on the grounds that the Contractor's determination that
the Owner-Operator's equipment is inadequate was a pretext for ter-
minating the Owner-Operator's services. Failure to work the day or
one-half (1/2) day out, as directed, shall terminate the Owner-Opera-
tor's employment and he shall be paid only for actual time worked
prior to such failure. The Contractor shall not pay for time spent by
the Owner-Operator in repairing, servicing, or maintaining his equip-
ment after termination or employment or before or after his shift or
half-shift, as the case may be.
1902. The Owner-Operator shall be carried on the payroll of the
Contractor as an employee and as such, all the terms and conditions
of this Master Agreement and any amendment or amendments there-
to, shall be applicable to him except as provided elsewhere in this
Article and except that in the event that it is determined that the
services of an Owner-Operator were terminated without just cause,
any payment for time lost shall be limited to the wage and fringe
benefit payments provided in this Agreement, and shall not in any
event include any payment with respect to the equipment or the loss
of use thereof; and except, further, that Owner-Operator shall not be
subject to the provisions of Paragraph 204, sub-paragraph 204.1
through 204.7.1.1 inclusive.
1917. It is understood by the parties that this Agreement provides
for an Employer-Employee Relationship between the Contractor or
Sub-contractor and each Owner-Operator of equipment used hereun-
der.
1918. It is recognized that many Owner-Operators have executed
"short-form" agreement with the Teamsters Union which incorpo-
rate by reference provisions of this Master Labor Agreement. The
provisions of such "short-form" agreement shall be applicable to said
Owner-Operators only in their capacity as employers, i.e., when such
Owner-Operators are employing one or more employees. When
Owner-Operators are working on a job covered by this Master
Labor Agreement their employment shall be covered by the Owner-
Operator clause of this Agreement.
Similar provisions were included in the master labor agreement executed
in 1974, 1977, and 1980.
In Associated General Contractors of California v.
NLRB, supra (564 F.2d 271), the court reversed a Board
decision involving an alleged violation of Section 8(a)(2)
and (1) of the Act and found that the owner-operators of
dump trucks were independent contractors. The Board,
on remand, dismissed the complaint and the decertifica-
tion petition filed in Associated General Contractors of
California, supra, accepting the circuit court's decision as
the law of the case, 239 NLRB 686.
The Union did not modify its agreement and contin-
ued to treat owner-operators as employees. The General
Counsel issued a complaint alleging Respondent was vio-
lating Section 8(e) and Section 8(b)(4)(i) and (ii)(A) of
the Act by including these owner-operators in the agree-
ment since they are independent contractors, under the
law of the case in Associated General Contractors of Cali-
fornia, id. The Board held that the issue of whether the
owner-operators were independent contractors, in Team-
sters Joint Council No. 42 (Irvine-Sante Fe Co.), 248
NLRB 808 (1980), was res judicata, affd. 671 F.2d 305
(9th Cir. 1981).
In Teamsters Joint Council No. 42 v. Associated General
Contractors of California, 520 F.Supp. 3 (C.D. Calif.
1981), affd. per curiam 662 F.2d 531 (9th Cir. 1981), cert.
denied 455 U.S. 1021 (1982), it was held that, subject to
the provisions of Section 302 of the Taft-Hartley Act,
trust funds could not accept contrtibutions made on
behalf of the dump truck owner-operators since they
were found to be independent contractors. In the 1983-
1987 master labor agreement, entitled "Owner-Opera-
tors," the provisions of the 1971-1983 agreement were
modified to delete all references to owner-operators
being employees and/or under the control of the con-
tractor being placed on the payroll, receiving contract
wages or maintaining union membership. Also section
2304 of the 1983-1987 master labor agreement provides
that owner-operators are covered by the "owner-opera-
tor clause of the agreement" except when action in their
capacity as employers when they operate under a "short-
form agreement" incorporating by reference the master
labor agreement. In sum, the Union determined to treat
all owner-operators as independent contractors. Thus the
Union precluded all owner-operators from registering
with the Union as employees and being referred for em-
ployment. To do otherwise, the Union argues, would
risk contempt of court proceedings and lawsuits under
Section 303 of the Act.
In January 1984, the Regional Director for Region 31
issued an order consolidating cases, second amended
consolidated complaint and notice of hearing asserting, in
part, that water truck owner-operators are sufficiently
different from dump truck and excavation equipment
owner-operators to be deemed employees
II. ALLEGED VIOLATIONS OF THE ACT
A. Failure to Register and Dispatch
It is undisputed that in mid-September the Union had a
meeting to ratify the 1983-1987 master labor agreement
which, as described above, greatly modified the section
covering owner-operators. Shortly thereafter, Williams,
1840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenter, and Bell were informed that they had to sign
a declaration of nonownership before they could register
with the Union as out of work and be dispatched. Since
at least 1 October 1983, Respondent has refused to allow
Bell and Carpenter to register or to refer them for em-
ployment, and Williams since about 1 December 1983,3
the General Counsel asserts that the applicable law is the
right-to-control "test of employee status" as promulgated
in NLRB v. United Insurance Co. of America, 290 U S.
254 (1968), which holds that all of the incidents of the
relationships must be assessed and weighed with no one
factor being decisive.
In order to find a violation, it must be determined that
Williams, Carpenter, and Bell are employees. Section
2(3) of the Act specifically excludes "any individual
having the status of independent contractor from its defi-
nition of 'employee." Only employees must be registered
and dispatched by the Union. 4 This exclusion was en-
acted in 1947 to ensure the application of "general
agency principles in distinguishing between employees
and independent contractors under the Act." NLRB v.
United Insurance Co. of America, 390 U.S 254, 256 (1967),
citing 93 Cong Rec. 6441-6442, 2 Leg Hist. of the Labor
Management Relations Act 1537 (1947). See H.R. Rep
No. 245, 80th Cong., 1st Sess., 18, 1 Leg Hist., 1947, p
309, H.R. Conf. Rep. No 510, 80th Cong., 1st Sess , 32-
33, 1 Leg Hist. 536-537 (1947) See also Merchants
Home Delivery Service v. NLRB, 58 F.2d 968 at 975 (9th
Cir. 1978), discussing the effect of amendment to the Act
on the holding in United States v. Silk, 331 U.S. 704 at
719 (1947), as follows.
[W]here the arrangements leave the driver-owners
so much responsibility for investment and manage-
ment as here, they must be held to be independent
contractors These driver-owners are small business-
men. They own their own trucks. They hire their
own helpers . . . It is the total situation, including
the risk undertaken, the control exercised, the op-
portunity for profit from sound management, that
marks these driver-owners as independent contrac-
tors
The Ninth Circuit Court of Apeals held in Merchants,
supra at 976, that the economic realities discussed in the
Silk case were still applicable.
The legislative history of Section 2(3) is not antipodal
to this finding. House Report No. 245 on H R. 3020
3 The alteration in the master labor agreement is not determinative of
employment status Todd v Bernal Concrete Construction, 710 F 2d 581
(9th Or 1983)
4 Sec 8(b)(1)(A) and (2) provides
(b) It shall be an unfair labor practice for a labor organization or
its agents—
(1) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7 Brooded, That this paragraph shall not
impair the right of a labor organization to prescribe its own rules
with respect to the acquisition or rention of membership there
(2) to cause or attempt to cause an employer to discriminate
against an employee in violation of subsection (a)(3) or to discrimi-
nate against an employee with respect to whom membership in such
organization has been denied or terminated on some ground other
than his failure to tender the periodic dues and the initiation fees uni-
formly required as a condition of acquiring or retaining membership
(Leg. Hist. of the Labor Management Relations Act of
1947, Vol. 1, p 309) provides:
(D) An "employee," according to all standard
dictionaries, according to the law as the courts have
stated it, and according to the understanding of
almost everyone, with the exception of members of
the National Labor Relations Boad, means someone
who works for another for hire But in the case of
National Labor Relations Board v. Hearst Publica-
tions, Inc. (332 U.S 111 (1944)), the Board expand-
ed the definition of the term "employee" beyond
anything that it ever had included before, and the
Supreme Court, relying upon the theoretic "expert-
ness" of the Board, upheld the Board. In this case
the Board held independent merchants who bought
newspapers from the publisher and hired people to
sell them to be "employees." The people the mer-
chants hired to sell the papers were "employees" of
the merchants, but holding the merchants to be
"employees" of the publisher of the papers was
most far reaching. It must be presumed that when
Congress passed the Labor Act, it intended words it
used to have the meanings that they had when Con-
gress passed the act, not new meanings that, 9 years
later, the Labor Board might think up. In the law,
there always has been a difference, and a big differ-
ence, between "employees" and "independent con-
tractors." "Employees" work for wages and salaries
under direct supervision. "Independent contractors"
undertake to do a job for a price, decide how the work
will be done, usually hire others to do the work, and
depend for their income not upon wages, but upon the
difference between what they pay for goods, materials,
and labor and what they receive for the end result,
that is, upon profits It is inconceivable that Con-
gress, when it passed the act, authorized the Board
to give to every word in the act whatever meaning
it wished On the contrary, Congress intended then,
and its intends now, that the Board give to words
not far-fetched meanings but ordinary meanings. To
correct what the Board has done, and what the Su-
preme Court, putting misplaced reliance upon the
Board's expertness, has approved, the bill excludes
"independent contractors" from the definition of
"employee." [Emphasis added.]
The risk of loss, or opportunity for profit, has been a
traditional consideration in determining independent con-
tractor status. 3 The Restatement of Agency refers to
5 For example, Restatement 2d, Agency § 220 (1957), provides
Definition of servant
(1) A servant is a person employed to perform services in the af-
fairs of another and who with respect to the physical conduct in the
performance of the services is subject to the other's control or right
to control
(2) In determining whether one acting for another is a servant or
an independent contractor, the following matters of fact, among
others, are considered
(a) the extent of control which, by the agreement, the master may
exercise over the details of the work,
Continued
TEAMSTERS LOCAL 87 1841
"the extent of control" as only one of the elements to be
considered in defining employee status. As the court held
in Teamsters Local 36 v. NLRB, supra, 669 F.2d .759 at
674 (D.C. Cir. 1981):
The Act does not define "independent contractor,"
but Congress intended the Board and the courts to
"apply general agency principles in distinguishing
between emplyees and independent contractors
under Act." In applying agency principles the
Board and the courts look at all aspects of an indi-
vidual's relationship with the putative employer. Al-
though no one part of the relationship is determina-
tive, the degree of supervision over the means and
manner of performing the task assigned is most im-
portant in determining whether a relationship is that
of employee or independent contractor.
The Board, in Comedy Store, 265 NLRB 1422 (1982),
considered business expenses incurred by the individuals
found to be independent contractors. Thus by using the
catch phrase "right to control test," the other general
principles of agency used to distinguish between employ-
ees and independent contractors cannot be ignored. All
the aspects of the water truck owner-operators' relation-
ship with the contractors, as presented in the record, will
be considered.
One test is whether the contractor exercised control
over the manner and means of performance. Seafarers
Local 777 v. NLRB, 603 F.2d 862 (D.C. Cir. 1978).
Before October 1983, when the owner-operators got a
job, after soliciting various construction companies, usu-
ally by telephone, and leaving their names with dispatch-
ers, they went on the companies' payroll at the rate es-
tablished in the master labor agreement, with deductions
for taxes and stated benefits, and they rented their trucks
to the contractor at an hourly rate.° The owner-operator
kept track of the hours worked which was certified daily
by the job superintendent or other agent of the contrac-
tor. There is no requirement that the owner-operator
take a job offered by a contractor or give any reason for
such a refusa1. 7 Bell has admitted that the rental rate for
leasing his truck to a contractor was subject to negotia-
tion. Id. at 280. 8 This evidences a relative bargaining
(b)whether or not the one employed is engaged in a distinct occu-
pation or business;
(c) the kind of occupation, with reference to whether, in the local-
ity, the work is usually done under the direction of the employer or
by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumental-
itieA tools, and the place of work for the person doing the work;
(ft the length of time for which the person is employed;
(g) the method of payment by the time or by the job;
(h) whether or not the work is a part of the regular business of the
employer;
(i) whether or not the parties believe they are creating the relation
of master and servant; and
(j) whether the principal is or is not in business. [Emphasis added.]
6 According to Thomas C. Blevms, a dispatcher for the contractor C.
W Poss, brokers call him all the time to get work for water truck owner-
operators.
7 See Associated General Contractors, supra, 564 F.2d at 279.
8 After 1 October 1983, the owner-operators worked for contractors at
a flat hourly rate.
power not indicative of an employer-employee relation-
ship. NLRB v. Associated Diamond Cabs, 702 F.2d 912,
921 (11th Cir. 1983):
The owner-operators have the responsibility of getting
the equipment to the jobsite. Generally, water trucks are
used to control dust and for soil compaction. On the
days their services are needed, they generally keep the
same work hours as the contractor's employees and their
hours can be unilaterally changed by the employer. Id. at
280. They are paid if they are idle on the project for a
few hours, unlike dump truck drivers in the other cases
involving this Union, cited above. There was no showing
if this operating practice was necessary to properly meet
the demands of limper performance by general contrac-
tors or subcontractors using the water trucks. If the
owner-operator is not needed for a few hours or a day
or two, there was no bar by the contractor against their
working for another contractor. Id. at 280. In fact, Wil-
liams did this on at least one occasion (Tr. 85).
The owner-operators are responsible for filling their
own water trucks. They did not punch a timeclock. As
noted above, they kept record of the hours they worked
as certified by the superintendent or another agent of the
contractor on a daily basis. There was no showing how
employees such as laborers kept track of their time.
After filling the trucks, they either went to an agent of
the contractor for brief instructions, or just went to the
worksite knowing what to do from the previous day's
activities. The owner-operators are skilled in their occu-
pation, knowing at times where to spray water without
instructions. Occasionally a foreman, superintendent, or
grade checker would have an application needing in-
struction where to spray or the amount of spray. At
times it is necessary to communicate with the owner-op-
erator using hand signals, but the majority of times the
owner-operators would know where to go after they de-
termine what the job requires. After a break in time,
communication of a supervisory or instructional nature
averages about 5 minutes a day. The amount of instruc-
tion time at the commencement of a job was not shown
to be appreciably greater. The owner-operators often
move from job to job but this is not unusual in the con-
struction industry. These factors therefore do not clearly
betoken employee status.
The contractor could disqualify an owner-operator
based on dissatisfaction. Although there was a belief that
owner-operators could receive discipline in the same
manner as employees, such as suspension, there was no
evidence that discipline other than discharge was ever
imposed. Discharge is the exercise of a right of contrac-
tual control by being bound only to persons who can sat-
isfactorily perform the work. NLRB v. Associated Dia-
mond Cabs, supra, 702 F.2d at 921. The right to dis-
charge, therefore, is not demonstrative of employee
status.
The extent of control the contractor exercises over the
owner-operators in this case is not a clear indicia of em-
ployment status. The techniques and skills of driving a
water truck do not require extensive oversight if the
driver is qualified. The right to control the manner of
performance is not clearly established in this record
1842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where the drivers are often on their own and follow es-
tablished procedures and practices. There are few occa-
sions for the assertion of control over the water truck
drivers for most of their work. In such cases as this, con-
sideration must be given to the "important distinction
. between service under an agreement to accomplish
results or to use care and skill in accomplishing results."
Restatement 2d, Agency § 220, comment (e) (1957). The
various indicia of control must be balanced and individ-
ually examined There is no convincing showing that the
contractor controlled the manner and means of the driv-
ers' performance compared to mere control over the end
result. Seafarers Local 777, supra, 603 F.2d at 874-875;
NLRB v. Deaton, Inc., supra, 502 F.2d at 1224
While the control elements presented in this case are
not a cler indication of status, the other indicia are clear-
ly characteristic of independent contractors. The owner-
operators own their own equipment and use only that
equipment while so employed As the court held in Sea-
farers Local 777, supra, 603 F.2d at 878.
In the usual employment relationship, the employer
not only owns the instrumentalities of labor, but
also supplies them free of charge to the worker.
Rather than leasing out tools so that the "employ-
ees" can pursue their chosen ends, the typical em-
ployer hires the employees to operate his machines
in order to accomplish his chosen ends
They also maintain their own equipment, provide the
tools for the maintenance, and pay for insurance, gaso-
line, oil, tires, and licensing. They deduct depreciation
for their vehicles on their tax returns. The owner-opera-
tors' involvement is substantial. Williams purchased a
water truck for about $15,000 which he currently valued
at $10,000. 9 He has a 1967 Ford pickup which he uses to
carry his maintenance tools and it has a fuel tank to fuel
the water truck. He operates under the name of Williams
Water Truck Service A separate checking account is
maintained in this name. Prior to October 1983, the bills
for leasing of the truck to various contractors were sent
with a letterhead reading, "Williams Water Truck Serv-
ice." On 1 July 1975, Williams signed a "Southern Cali-
fornia Teamsters Construction Short Form" indicative of
his right to hire others to drive the water truck.") Wil-
liams identified a document as "the check file signature
card for the water truck business." This statement indi-
cates that the acquisition of work was done under the
belief he was operating a business separate and apart
from the contractor."
Among the factors considered significant at
common law in connection with the "right to con-
trol" test in determining whether an employment
9 New water trucks cost between $65,000 and $80,000
10 Williams claims he sold his water truck to his son on 1 May 1983
His son is attending college full time, never drove the truck, and was
never credibly shown to have entered Into a good-faith purchase The
failure of the Union to register and refer Williams after this asserted sale
is not indicative of a proscribed motive, or a violation of the Act
" Capitol Parcel Delivery Co, 256 NLRB 302 at 303, remanded and
supplemental decision and order issued at 269 NLRB 52 (1984) The
remand and subsequent decision did not disavow the factors deemed sig-
nificant in the original decision
relationship exists are (1) whether individuals per-
form functions that are an essential part of the com-
pany's normal operation or operate an independent
business, (2) whether they have a permanent work-
ing arrangement with the company which will ordi-
narily continue as long as performance is satisfac-
tory, (3) whether they do business in the company's
name with assistance and guidance from the compa-
ny's personnel and ordinarily sell only the compa-
ny's products; (4) whether the agreement which
contains the terms and conditions under which they
operate is promulgated and changed unilaterally by
the company; (5) whether they account to the com-
pany for the funds they collect under a regular re-
porting procedure prescribed by the company; (6)
whether particular skills are required for the oper-
ations subject to the contract; (7) whether they
have a proprietary interest in the work in which
they are engaged, and (8) whether they have the
opportunity to make decisions which involve risks
taken by the independent businessman which may
result in profit or loss.3
3 Standard al Company, 230 NLRB 967, 968 (1977), citing
NLRB v United Insurance Company, supra, NLRB v Pepsi
Cola Bottling Co of Mansfield, Ohio, 455 F 2d 1134, 1141 (6th Cm
1972), and Restatement of Agency 2d § 220 (1958)
Bell owns two water trucks, a 1961 International and a
1948 Peterbilt respectively valued by him at $25,000 and
$15,000 He also has two pickup trucks, a 1971 Ford that
has a fuel tank and tools in it which is valued at between
$2500 and $3000 and a 1982 Ford pickup with tools and
a fuel tank worth about $12,000. Bell uses the pickup
trucks to transport fuel and to have tools available for
the water trucks when he is on a job He fuels and main-
tains the water truck before and after work. He drives
the International most of the time and rents the Peterbilt
truck to a contractor on an hourly basis. The contractor
provides the driver, and pays the driver's wages and
other benefits for the Peterbilt truck. The Peterbilt truck
has the name "Bell's Water Truck Service" on it; no
name appears on the International There is undisputed
evidence that owner-operators' water trucks often have
names other than the contractor affixed to them.
Carpenter owns a Kenworth truck valued at between
$20,000 and $30,000 and a 1972 Ford pickup truck which
has fuel tanks and toolboxes. Carpenter's truck does not
have a logo or sign on it. None of the owner-operators
who testified affix the contractor's name to their trucks.
It is found that the owner-operators have a substantial
financial involvement in equipment and bear the risk of
any loss or damage to the equipment. Associated General
Contractors v. NLRB, supra, 564 F.2d at 281, citing SIDA
of Hawaii v. NLRB, 512 F 2d 354 (9th Cir. 1975); Brown
v. NLRB, 462 F.2d 699 (9th Cir. 1972), cert. denied 409
U.S. 1008 (1972). The owner-operators retain all the at-
tributes of ownership even though they lease the equip-
ment to the contractor Merchants Home Delivery Service
v. NLRB, supra, 580 F.2d at 975. The individual's ability
to make a profit is determined by his own skill and initia-
tive, he may refuse any and all offers of work Usually,
TEAMSTERS LOCAL 87 1843
the water truck owner-operators, like any individuals
who make their livelihood in the construction industry,
often work for several contractors, moving from job to
job. Restatement 2d, Agency § (2)(f) There was no show-
ing that the employer retained the right to reject owner-
operator's vehicles which failed to meet any set stand-
ards Georgia Pacific Corp., 249 NLRB 1280 (1980). Nor
were the drivers subjected to any examination. No other
drivers could be assigned unilaterally to operate the
truck by the employer. Propane Transport, 247 NLRB
966 (1980)
Thus, under the standard common law criteria, it is
concluded that the water truck drivers in this case are
independent contractors within the meaning of Section
2(3) of the Act, not employees The Union was correct
in informing the owner-operators that they could not be
dispatched as owner-operators and then be free to oper-
ate as independent contractors The Union instituted
membership requirements which it deemed necessary to
insure that they dispatched only employees The require-
ment of signing a declaration of divestiture of equipment
was designed to meet these requirements and was not al-
leged, in itself, to be violative of the Act. The owner-
operators all testified they wished to be dispatched as
employees and operate their own equipment There was
no evidence that they were denied registration and refer-
ral as employees who would not operate their own
equipment. Thus, while the divestiture requirement may
arguably be too severe, it was not argued or shown to be
an unlawful restraint on membership, registration, and/or
referral. The failure to register and/or refer individuals
who are indpendent contractors is not a violation of Sec-
tion 8(b)(1)(A) and/or (2) Section 8(b)(1)(A) only pro-
tects employees in their exercise of Section 7 rights
Roofers Local 66 (Sierra Employers Assn.), 267 NLRB 601
(1983) Similarly, finding watei truck drivers are inde-
pendent contractors within the meaning of Section 2(3)
of the Act requires a conclusion that Respondent has not
violated Section 8(b)(2) of the Act. Teamsters Local 814
(Santini Bros.), 208 NLRB 184 (1974), reaffd. 223 NLRB
752 (1976), enfd. 546 F.2d 989 (D.C. Cir. 1976). This al-
legation of the complaint should be dismissed. See Oper-
ating Engineers Local 18 (Ohio Contractors Assn.), 204
NLRB 681 (1973), remanded per curiam 496 F.2d 1308
(6th Cir. 1974), reaffd 220 NLRB 147 (1975), enf denied
555 F.2d 552 (6th Cir. 1977). Teamsters Local 515
(Roundway Express), 248 NLRB 83 (1980)
B. Allegations Derivative from the Events of July 1
1. Pleadings
The General Counsel charges in the complaint that
Respondent violated Section 8(b)(1)(A) of the Act as fol-
lows
8 At all times material herein, pursuant to the
collective-bargaining agreement as described above
in paragraph 6, Respondent has maintained and ad-
ministered an exclusive job referral system at Re-
spondent's Bakersfield, California office whereby
Respondent is the sole and exclusive source of re-
ferrals of employees to employment with the van-
ous employer-members of the Contractors operating
within the jurisdiction of Respondent's Bakersfield,
California office Such referral system includes em-
ployment lists as defined in Article II of the collec-
tive-bargaining agreement 12
9 On or about July 1, 1983, at Respondent's Ba-
kersfield, California office, Williams, in the presence
of Sham, complained to Jessie Harer, hereinafter
called Harer, about his placement on the employ-
ment list as maintained by Respondent at its Bakers-
field, California office 13
10 On or about August 1, 1983, Respondent,
acting through Harer, filed intra union charges
against Williams and Sham
11. On or about August 28, 1983, Respondent,
acting through its seven-member Executive Board
comprised of George Branson, Lawrence Burke,
Bill Elliott, Wayne Epperson, Shirley Holt, Willie,
Seay, and William Joyner:
(a) expelled Williams and Sham from member-
ship in Respondent effective July 1, 1983;
(b) imposed court collectible fines of $1,500
each on Williams and Sham;
(c) prohibited both Williams and Sham from
entering Respondent's property for any purpose
whatsoever, and
(d) removed Sham from his office as Respond-
ent of Respondent and barred him forever from
holding any office with Respondent."
2. Events of 1 July
The finding that Williams is an independent contractor
does not eliminate the need to discuss his involvement in
these allegations for he could still register as an employ-
ee if he took reasonable steps to not assume the work as
an owner-operator independent contractor, and the alle-
gations also pertain to Sham, who is admittedly an em-
ploye as defined in the Act.
It is undisputed that Sham, the president of the local,
and Williams casually met the morning of 1 July 1983
and came into the union hall to register as out of work,
as required by the valid union procedure. Sham went to
Barbara McNeil's window and started to register Prior
to registering, Williams checked a posted out-of-work list
and noticed that his name was not on the list, another
name, Steve Casen, appeared twice at numbers 30 and
31. Williams should have been number 30 The posted
list was admitted to be unofficial and in error. Williams
went to the window manned by Jessie Harer, Respond-
ent's office manager and recording secretary to the
local's board, an elected position Williams asked why his
name was not on the list He also told her to "keep her
damn hands off his name on the out of work list." Harer
admitted the error. The subsequent actions and state-
ments of Williams and Harer are in dispute. Harer asserts
Williams was yelling at her in a threatening manner and
when he told her to keep her hands off his name on the
12 Respondent admits this allegation
" Respondent denies this allegation
I 4 Respondent denies this allegation
1844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
list he shook his fist and finger at her. Harer was very
upset over the incident, which reduced her to tears Wil-
liams denies making any verbal or physical threats.
All the individuals in the small office area, save the
office clerical, Barbara McNeil," did not observe Wil-
hams screaming and yelling at Harer, threaten Harer
either verbally or physically. Alan De Gough, a member
of the Union, did overhear Williams tell Harer in a loud
voice she was to keep her "goddamned hand off his
name on the out-of-work list." De Gough would not
characterize Williams as screaming, his tone was close to
a shout. De Gough left before Williams. Albert Mat-
thews, another member present at the start of the inci-
dent, testified Williams "raised his voice a little bit" and
asked Harer about his name not being on the out-of-work
list. Matthews then left with Shain Later that day, Mat-
thews called Harer because "I just like Jessie and felt
like that mainly she would enjoy somebody consoling
her," because "he [Williams] had his voice raised a little
high"
Wayne Young, who also was present only for the first
part of the conversation, corroborated the testimony that
Williams spoke in a louder than normal voice, he did not
shout, and did not make a verbal or physical threat in his
presence. Based on demeanor, clarity of recall, and posi-
tion as an uninvolved neutral observer, Young's testimo-
ny is credited
McNeil testified she asked Sham if he could stop Wil-
liams Her testimony is devoid of any indication that
Shain heard her. When McNeil testified, she was very
soft spoken. Sham did not respond or look up. McNeil
did not repeat the request. There was no testimony indi-
cating Sham heard her and ignored or refused her re-
quest. Sham testified without refutation that he did not
hear McNeil make such a request. There is also no indi-
cation that Shain knowledgeably refused or refrained
from interfering with Williams in his protest or any other
actions considered protected by the Act. See Myers In-
dustries, 268 NLRB 493 (1984). Shain left with Matthews
and Young shortly after the Williams-Harer conversation
started. Williams came out of the office shortly thereaf-
ter. McNeil did not ask anyone else for help and did not
use the telephone or other instrumentatily to seek help."
This inaction contradicts her claim of fear and concern.
However, this contradiction was not shown to have been
known to Respondent prior to this trial.
Shortly after Williams left Barer, Don Frazer, a busi-
ness representative and vice president of the Union, ar-
rived at the union hall. McNeil told him Barer was in
the bathroom crying and her version of what transpired
with Williams. Frazer knew Williams was standing on
the front porch and asked him to step inside Art Bran-
son's 17 office. Frazer asked Williams:
" McNeil was not a credible witness based on demeanor principally
She tended to embellish the facts to bolster the Union's case, rather than
testify in a candid, forthright manner
16 McNeil's testimony is inconsistent Initially she said Sham was sign-
ing his name when she asked him to help and he Just said, "la-de-da-de-
da " Subsequently she said Sham was looking at her when she said she
made the request, getting ready to sign his card
17 Branson is the secretary/treasurer of the Union, the chief executive
officer
. . . what the problem had been and he said that his
name had been left off the out-of-work list, and I
advised him at that time that that wasn't a very log-
ical reason to be terrorizing the office staff, that
their job function was to help the members when
they come in with health and welfare problems, to
write letters and answer the telephone, such likes as
that. If he had a problem with the way the union
was being run, he should bring that problem to
Branson or myself.
Q. Did he respond to that?
A. He no doubt had something to say but not a
great lot. I don't really recall what he said specifi-
cally I was pretty—pretty angry myself.
Q. How long did the conversation last?
A. Not very long I advised him that the only
thing that kind of conduct would get him would be
a trip in front of the executive board and he
wouldn't like that. And then I asked him to leave,
and he did
About a month later, on 1 August, Harer filed the fol-
lowing charges:
This will serve to advise you that I am filing
charges against Brother Don Williams and Presi-
dent Harry Sham for the following offenses consti-
tuting a violation of the International Constitution,
Article XIX—Section 6—(b) 1, 2, 5, & 618 and
Local 87's Bylaws, Section 19, (E) 1 & 3."
18 These sections of the International constitution provide
(b) The basis for charges against members, officers, elected Busi-
ness Agents, Local Unions, Joint Councils or other subordinate
bodies for which he or It shall stand trial shall consist of, but not be
limited to, the following
(1) Violation of any specific provision of the Constitution, Local
Union Bylaws or rules or order, or failure to perform any of the
duties specified thereunder
(2) Violation of oath of office or the oath of loyalty to the Local
Union and the International Union
(5) Conduct which is disruptive of, interferes with, or induces
others to disrupt or interfere with, the performance of any union's
legal or contractual obligations Causing or participating in an unau-
thorized strike or work stoppage
(6) Disruption of Union meetings, or assaulting or provoking as-
sault on fellow members or officers, or failure to follow the rules of
order or rulings of the presiding officer at meetings of the Local
Union, or any similar conduct in or about union premises or places
used to conduct union business
16 The bylaws state
E Responsibility of Members to the Local Union
1 Every member by virtue of his membership in this Local Union
is obligated to abide by these Bylaws and the International Constitu-
tion with respect to his rights, duties, privileges and immunities con-
ferred by them Each member shall faithfully carry out such duties
and obligations and shall not interfere with the rights of fellow mem-
bers
3 No member shall interfere with the elected officers or business
agents of this organization in the performance of their duties, and
each member shall, when requested, render such assistance and sup-
port in the performance of such duties as may be required by them,
provided that this does not interfere with the individual rights of
members Each member and officer shall adhere to the terms and
conditions of pertinent collective bargaining agreements and shall re-
frain from any conduct that would Interfere with the performance by
this Local Union of its legal or contractual obligations
TEAMSTERS LOCAL 87 1845
On Friday, July 1, 1983, Brother Don Williams
and President Harry Shain came into the office to-
gether President Harry Sham went to Barbara
McNeil's window, Brother Don Williams came to
my window Brother Williams immediately initiated
a violent attack and verbal assault upon me for a
clerical error that occurred in our office
He shouted, cursed, screamed and threatened2°
me in the presence of members and told me to
"keep my god damn hands off his name on the con-
struction out of work list"
President Harry Shain refused to assist another
Officer in performance of duties, altho he was re-
quested to do so, nor would he defend the integrity
of the Local Union He stood idly by and witnessed
the entire abusive confrontation without offering as-
sistance and left with Don Williams.
I hereby respectfully request that the charges be
heard at the earliest possible date.
Harer explained the delay of a month in filing charges
as being occasioned by discussions she had with her hus-
band over the incident where she felt that a clerical em-
ployee should not be subjected to such incidents and her
own knowledge that the executive board did not meet
until August. Harer was of the opinion that she should
not have been subjected to the confrontation as a means
of retaining her job and that Sham, as president of the
Local, had a responsibility to protect her "in her repre-
sentation of the union."
It is the General Counsel's position that Williams was
engaged in protected concerted activity for he was com-
plaining about the operation of the hiring hall, i e., his
name being left off the out-of-work list. Derivatively, it
is alleged that Respondent violated the Act because
Shain was charged and disciplined for conduct which
was the failure to interfere with the protected act of an-
other. The threshold issue therefore is whether Williams'
conduct was protected
The finding that Williams was an owner-operator and
therefore an independent contractor does not alter the
fact that on July 1 he was attempting to sign the out-of-
work list as an employee. There 'were occasions when he
accepted dispatches in a role other than owner-operator
There was no showing that any of the activities on July
1 were related to his role as owner-operator. There is no
contention that he did not have the right on 1 July to
register on the out-of-work list as an employee and that
his actions were other than an attempt to so register.
There is also no showing that he would not accept em-
ployment from a referral as an employee rather than an
owner-operator or independent contractoi.
The next matter to be considered is whether the Re-
spondent Union was motivated by Williams' past intraun-
ion activities, including opposition to Respondent's deci-
sion to lay off Sham and retain Frazer as a business
agent; his criticisms of Frazer about March 1983 with
regard to dispatches of two nonmembers, one Frazer's
20 In her testimony, Harer admitted Williams did not verbally threaten
her, and she also testified elsewhere that the only i eason she filed the
charges was because Williams yelled at her As indicated above, the
threat was asserted to be shaking his finger and fist at her
son-in-law, to what was referred to as the "Mason job"
in Caliente; and a complaint to Frazer about overtime
and the filing of a charge about the misdispatches on 12
August 1983 Respondent argues that the record is insuf-
ficient in showing the reasons for the discipline were
pretexts, that an employee engaged in activity which was
improper and even if this occurred during protected
action, it does not save him from discipline for such im-
proper conduct. The nexus to determining whether a
violation occurred therefore is determining whether the
Union processed the charges and disciplined Williams
and Sham for prescribed reasons
Harer filed the charge on 1 August, approximately 1
month after the incident. Her chare filed against Wil-
liams and Shain prior to Williams' filing charges against
the Union for misdispatching on 12 August 1983 Ac-
cordingly, it cannot be found that Harer's actions were
in any way induced by Williams engaging in the protect-
ed activity of filing a charge against the Union.
In contemplation of filing charges, Harer asked Frazer
to act in a position analogous to prosecutor in the con-
duct of the trial board. Frazer, consonant with the re-
quirements of the Union's constitution and bylaws,
stepped down from the executive board to assume this
pseudoprosecutorial role Harer also was not going to sit
on the panel. In fact, of approximately seven executive
board members, only two sat on the panel, George Bran-
son and Tiny Burke. Prior to 1 August, again in contem-
plation of the filing of the charges, Frazer asked several
union members if they would serve on a trial board.
Branson interviewed five individuals, telling these pro-
spective trial board members that the subject matter was
delicate, that one union official was charged as well as a
member for an incident occurring in the office, and they
wanted to ensure that the prospective trial board mem-
bers could render a fair and unbiased decision. It is un-
disputed that Frazer's asking individuals if they would be
interested in serving on the trial board was unprecedent-
ed and occurred prior to the actual filing of the charge.
Frazer's solicitation of three members to sit on the trial
board 2 ' was not considered by Branson to be proper
procedure. However, Branson interviewed them all. No
one who served on the trial board as voting members
were called to appear and testify and there was no indi-
cation that only members of a particular proclivity were
selected or that Frazer's actions bespeak discriminatory
motive
At the trial board Branson, who was chairman of the
trial board and did not have a vote, called Sham a liar
and accused him of stirring up trouble with members
ever since he was laid off as a business agent. Sham was
laid off as a business agent in January 1983. The decision
was Branson's Branson decided to retain Frazer as busi-
ness agent. Sham complained to Branson that Frazer had
less seniority with that local than he. Branson replied
that, in his view, Frazer was doing a better job, that he
did not have a contract and was not obligated to follow
seniority in hiring and firing or any other executive deci-
sion. Williams told Frazer in early 1983 that he thought
21 Wayne Epperson, Shirley Holt, and Bill Joyner
1846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Shain was a better business agent. Frazer candidly
admitted a personal dislike for both Williams and Sham,
stating he felt that Sham was less than candid and opin-
ing Williams was a loudmouth rebel who liked to intimi-
date others. There was no showing that Frazer partici-
pated in the trial board's decisionmaking process
The trial board, held on 20 August, after Sham and
Williams filed charges with the Board, included Frazer
raising questions about Sham being guilty of misdispatch-
ing. Frazer asserts he raised this issue as demonstrative of
credibility. Harer read a statement to the trial board
wherein she mentioned Williams failed to register on one
occasion on the out-of-work list and she, consonant with
established practice, removed his name from the list.22
Harer explained she raised the incident as a possible ex-
planation for Williams' conduct on 1 July for she could
not understand why the typographical error on the list,
known to be unofficial and not used by the Union for
dispatching, could have so upset him
The trial board found Williams and Sham guilty of all
charges, expelled them from membership in the Union
effective 1 July; removed Sham from the office of presi-
dent and barred him from future office holding, fined
them $1500 each; prohibited them from entering the
union's property for any purpose whatsoever; and ex-
tended to them the right to register and be dispatched by
telephone. This decision was appealed to the Joint Coun-
cil of Teamsters No. 38 which found there was no clear
showing that Sham heard the argument and, thus, that he
did not violate the International constitution or local
bylaws as charged by Harer. All penalties imposed by
the trial board, as here pertinent, were removed with
regard to Sham. Williams was found guilty of abusive
verbal conduct, fined $500 of which $300 was suspended
provided he did not engage in similar conduct within a
year. All other penalties, as here pertinent, were revoked
and both were restored to membership in good standing.
The International's reversal of the Local Union's
action and its removal of all penalties imposed by the
Local because of Harer's charges 23 does not abrogate
any potential violation by the Local Union for its actions
because the joint board of the International did not repu-
diate the Local's conduct Auto Workers Local 1989 (Cat-
erpillar Tractor Co)., 249 NLRB 922 at 924 (1980).
"Thus, the mere withdrawal of charges against the em-
ployees in an absence of action specifically repudiating
the coercive effect of Respondent's conduct is clearly in-
sufficient."
3 Discussion
The General Counsel argues that by disciplining and
fining Sham and Williams, the Union illegally restrained
and coerced members in the exercise of Williams' right
22 There is no allegation of wrongdoing by Williams with regard to his
failure to register on the out-of-work list Williams' unrefuted testimony
is that he worked overtime the first few days of the job and did not have
access to a telephone during the union business office hours It was not
unusual where members delayed several days in informing the Union that
they have found work
23 Sham was fined for another matter that was completely unrelated to
the Issues in the complaint as stipulated to by the parties herein
to protest hiring hall procedures in violation of Section
8(b)(1)(A) of the Act.
Section 8(b)(1)(A) of the Act makes it an unfair labor
practice for a union
. to restrain or coerce . employees in the ex-
ercise of the rights guaranteed in section 7, Provid-
ed, That this paragraph shall not impair the right of
a labor organization to prescribe its own rules with
respect to the acquisition or retention of member-
ship therein.
The sweeping nature of the proviso to Section 8(b)(1)(A)
was described by the Supreme Court in NLRB v. Allis-
Chalmers Mfg. Co., 388 U S. 175, 181, as follows
Integral to . . federal labor policy has been the
power in the chosen union to protect against ero-
sion of its status under that policy through reasona-
ble discipline of members who violate rules and reg-
ulations governing membership
This proviso results in the granting of some immunity
to the unions for what may arguably be considered re-
straint or coercion of employees in the exercise of Sec-
tion 7 rights For example, the Board has found that a
union fining members respecting the acquisition or reten-
tion of membership does not violate the Act See, e.g.,
Musicians (George Doerner), 165 NLRB 798 (1967), enfd.
395 F.2d 401 (2d Cir 1968).
However, as held in Teamsters Local 557 (Liberty
Transfer), 218 NLRB 1117, 1120 (1975):
It is now well established that the immunity accord-
ed a union by the proviso with respect to the inter-
nal enforcement of its rules and policies is not an
unqualified one The proviso, it has been held, does
not leave a union free to enforce union rules or
policies which serve no legitimate union interest or
run counter to other public policies of an overriding
nature that Congress has imbedded in the labor
laws.
As the Supreme Court stated in Scofield v NLRB, 394
U S 423, 430 (1969).
Section 8(b)(1) leaves a union free to enforce a
properly adopted rule which reflects a legitimate
union interest, impairs no policy Congress has im-
bedded in the labor law, and is reasonably enforced
against union members who are free to leave the
union and escape the rule
In applying this test to the facts in Scofield, the Court
"focused its inquiry on the legitimacy of the union interst
sought to be encouraged by the rule and the extent to
which the rule contravened any policy of the Act." Op-
erating Engineers Local 39 (San Jose Hospital), 240 NLRB
1122 (1979). The fact that any action taken by the union
in conjunction with the rule may be internal "affords no
immunity to a union when . [that action] 'invades or
frustrates an overriding policy of the labor laws — Thus,
to determine the legitimacy of the umon action, "we
must balance the legtimacy of the union interest at stake
TEAMSTERS LOCAL 87 1847
with the interest claimed to be contravened by the union
action." Id at 1123.
Scofield listed the following requirements for lawful
imposition of union discipline under the Act:
Section 8(b)(1)(A) leaves a union free to enforce (1)
a properly adopted rule which (2) reflects a legim-
tate union interest, (3) impairs no policy which
Congress has imbedded in the labor laws, and (4) is
reasonably enforced against union members who are
free to leave the union and escape the rule. [Supra
at 423 ]
Respondent's argument that Williams was an Inde-
pendent contractor and not entitled to the protections of
Section 7 has been found above to be unpersuasive since
there was no showing by the Union that he was register-
ing solely to work as an owner-operator and would
refuse any dispatches as an employee Respondent also
argues that since Williams' conduct was directed against
a clerical employee, his actions were removed from the
protection of the Act This argument is also found to be
without merit The charges filed by Harer specifically
stated that Sham "refused to assist another officer in per-
formance of duties" The trial board found him guilty of
those charges. Harer is also the recording secretary of
the board and the bylaws and constitution refer to obli-
gations to officers; Harer is also a union member and
member of the executive board. This argument does not
address the General Counsel's position that the allegation
by Harer was a mere ruse to hide the fact that Williams
and Sham were being discriminated against because of
their engaging in protected activity, including Williams'
filing of grievances and charges with the board or
Sham's failure to interfere with Williams' engaging in
such protected rights as complaining to the union about
its operation of the hiring hall
The question is whether Respondent subjected Wil-
liams and Sham to the trial board and disciplined them
because they violated legitimate union rules or because
of prescribed motives aroused because Williams and
Sham engaged in rights protected by Section 7 of the
Act.
Initially, it is found that the Union did not breach its
duty of fair representation to Sham and Williams by
holding the trial board and disciplining them. As the
Board held in Elevator Constructors Local 8 (San Francis-
cio Elevator), 243 NLRB 53, 55 (1979)
The duty of fair representation sterns from a union's
exclusive representative status for the employees of
the employer 8 This duty is relevant only at such
times as the union is acting in this representative ca-
pacity or otherwise affects the member's employ-
ment status Here, Respondent's actions against
Finney were unreleated to any representation of
Finney vis-a-vis any employer Nor did Respondent
seek to affect his status as an employee Therefore,
we find its conduct could not constitute a violation
of the duty of fair representation.
We therefore find that Respondent did not act
unlawfully in fining and removing Finney from
office. Accordingly, we dismiss these allegations of
the complaint 9
8 Miranda Fuel Company, Inc , 140 NLRB 181 at 184 (1962)
9 The General Counsel's allegation of breach of duty of fair
representation was not specifically stated in the complaint It is
found that the allegation had been encompassed in the verbiage of
the complaint even though not specifically alleged
As held in Vaca v. Sipes, 386 US 171 at 177 (1967):
[T]he exclusive agent's statutory authority to repre-
sent all members of a designated unit includes the
statutory obligation to serve the interest of all mem-
bers without hostility or discrimination toward any,
to exercise his discretion with complete good faith
and honesty, and to avoid arbitratry conduct . .
It is obvious that [plaintiff's] . . . complaint alleged
a breach by the union of duty grounded in federal
statutes . . . . Though the allegation is found to be
inapplicable to these facts, it is also found to have
been fully and fairly tried
Unit Tram Load Sales, 234 NLRB 1265, 1272 (1978). Al-
exander's Restaurant & Lounge, 228 NLRB 165 (1978),
enfd. 586 F.2d 1300, 1304 (9th Cir 1978) See also Free-
Flow Packaging Corp, 219 NLRB 925 (1975), enfd. 556
F.2d 1124 (9th Cir 1978); and Retail Clerks Local 770
(Frito Co.), 138 NLRB 244 (1962), enfd. in relevant part.
330 F 2d 458 (9th Cir 1964). It is concluded that this al-
legation of breach of duty of fair representation is with-
out merit and does not support the finding of a violation
of Section 8(b)(1)(A) of the Act. 24 There was no show-
ing that either Sham's or Wiliams' employment was af-
fected. There was no evidence that they were denied any
information concerning employment or were denied
proper dispatch The penalties were not shown to be an
action that invades or frustrates overriding policies of
labor law. The lack of any proof on this point precludes
the drawing of an inference that Respondent, in its oper-
ation of an exclusive hiring hall, denied Sham or Wil-
liams access to employment or information concerning
employment or that any labor policy or Federal policy,
such as the Labor Management Reporting and Disclo-
sure Act of 1979, had been violated or frustrated See
Carpenters Local 22 (Graziano Construction), 195 NLRB I
(1972) citing Teamsters Local 663 (Continental Oil), 193
NLRB 581 (1971) Cf. Southern Steamship Co. v. NLRB,
316 U.S 31 (1942). Compare Carpenters Local 1976 (Sand
Door) v. NLRB, 357 U S. 93 (1958), and Caesar's Palace,
194 NLRB 140 fn 5 (1971)
The question of the penalties imposed does have rel-
evance to determination of the issue of whether the
charges were brought, pursued, and discipline resulted
therefrom based on discriminatory motive. It is undis-
puted that the charge had already been filed at the time
the trial board met. There was no showing that any of
24 The General Counsel did not argue nor proffer any testimony that
the penalties imposed by the Union abrogated an employee's right to be
free from unfair, Irrelevant, or invidious treatment by their bargaining
representative in matters affecting their employment (Miranda Fuel Co,
Id)
1848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the voting trial board members knew of this filing at the
time of the trial board. None of the trial board members
other than Branson was called to appear and testify.
Branson did not vote. Therefore there was an absence of
a showing of a causal nexus between the decision to find
a violation of the Union's bylaws and constitution and
the filing of an unfair labor practice charge against the
Union. Similarly, it is undisputed that Williams com-
plained to Frazer about an employer's payment of over-
time. There was no indication that Frazer harbored any
animus based on this action or even that this action in
some manner indicated ineptitute or other adverse infer-
ences in the way Frazer was handling his position Fur-
ther, Frazer, in his pseudoprosecutorial role, removed
himself from the decision-making milieu of the trial
board. Again there was a failure to indicate that any of
the voting members of the trial board knew of Williams'
filing of grievances or complaints with Frazer or any
other official of the Union.
Another basis for the thesis of the General Counsel
that the Union disciplined Williams and Shain for exer-
cising rights protected by Section 7 of the Act was the
execssive penalty imposed upon the finding of violations
of the Union's constitution and bylaws. The record clear-
ly shows that during Branson's 23-year tenure as secre-
tary-treasurer and additional 3-year tenure preceding that
as business agent, he could not recall any fine exceeding
or even totaling $500. The only other fine Branson could
recall in recent history was one trial board in 1981 or
1982 involving a bakery driver being cited for breaching
a contract. He believes that discipline was a fine with
suspension and probation The fine he does not think was
as much as $500. Save the instant case, he cannot recall
any fines or disciplines more severe than the bakery
truckdnver. It appears, to place these matters in context,
that there were no other charges brought against mem-
bers that were similar to those brought against Sham and
Williams As found in NLRB v. Boeing Co., 412 U.S. 67
(1963), that the reasonableness of a fine is not one of the
criteria for establishing a violation of Section 8(b)(1)(A)
of the Act. This, however, does not preclude the consid-
eration of the severity of the fine or discipline in ascer-
taining the reason or purpose for the fine. See Operating
Engineers Local 138 (Charles S. Skura), 148 NLRB 679
(1964), and Carpenters Local 1620 (David M Fisher Con-
struction), 208 NLRB 94 (1974) As the Carpenters case,
id. at 99, indicates, the severity of the fine is imparted
pertinence in its relationship to past practice and then is
considered as part of the total picture in ascertaining the
reason or purpose for the fine In this proceeding, we are
not afforded the opportunity to contrast the severity of
the fine or discipline with a similar situation. The record
does not contain the details of trial board proceedings of
the Union; thus there is no facility to evaluate the actions
of the trial board based on such a record.
As found in Carpenters Local 1913 (Michael R. Amato),
189 NLRB 521 at 528 (1971)
The correlative result of a conclusion that the
conduct for which Amato was disciplined is not
protected by Section 7 is that a judgment as to the
reasonableness of the penalty is not the province of
the National Labor Relations Board That is not to
say that the Board may not take the scope of the
penalty into account in the process of determining
whether a union member has been punished for ex-
ercising a protected right. Conceivably, in given
cases, unprotected conduct may be used as a pretext
to punish a union member for exercising a protected
right, or the motive for the discipline may be ob-
scure, and in such situations, the relative severity of
the penalty might help shed light on its purpose.
But multiple factors may govern an inquiry
whether a penalty was aimed at the exercise of pro-
tected rights, and the mere fact that its scope may
run counter to the factfinder's perception of what is
reasonable does not inevitably spell out an invasion
of Section 7 rights. Perceptions of the reasonable in
penalties may reasonably vary widely, conditioned
by such factors as variations in the behavioral
standards of those charged with the responsibility of
forming a judgment, or degrees of awareness of the
need for the discipline imposed. Wide, but accepta-
ble variations, in assessing damages or imposing
penalties are a common experience in the courts.
And in examining the range of the penalty as part
of an examination of its underlying aim, one not
charged with the responsibilities of Local 1913 and
the District Council should exercise appropriate
caution, lest he improperly invade their province
. . I am unable to find in the discipline such un-
reasonableness as to warrant a conclusion that its
aim was suppression of any protected right of pro-
test
While there is no question that Williams may freely
and fully state his concern or dissatisfaction with the
manner with which Respondent conducted its business,
there must be a showing that the discipline was because
he was exercising Section 7 rights and not because of the
manner in which they were exercised The General
Counsel has failed to show pretext for it has failed to
show that Respondent's conclusions were not based on
Williams' and Shain's actions which were construed as
improper and threatening the maintenance of orderly op-
eration of the union hall and abusive conduct to one of
the Union's officers and employees. As found in Elevator
Constructors Local 8 (San Francisco Elevator), 243 NLRB
53 at 54 (1979):
Whether or not we agree with that determination is
of no moment. Respondent has a right to maintain
order and discipline in its meetings and the conduct
of its affairs. Its actions in doing so here are not
such that can be said to have acted outside its legiti-
mate area of interest and in such a way as to impair
any overriding policy of labor law.
In Carpenters Local 1913 (Michael R. Amato), supra,
189 NLRB at 527, it was held that
Granting that union discipline of a member, obligat-
ed to belong to the union as a condition of employ-
ment for conduct protected by Section 7 violates
TEAMSTERS LOCAL 87 1849
Section 8(b)(1)(A) if the penalty, although other-
wise proper, exceeds reasonable limits, 1 6 there is an
underlying fallacy in the General Counsel's thesis,
and that is that Amato was disciplined for exercis-
ing Section 7 rights.
It is true as the General Counsel points out, that
Local 1913 acts as the agent of the contracting em-
ployers in dispatching employees subject to the
agreement to jobs, that Section 7 protects the right
of such an employee to protest the operation of the
contractual dispatch machinery to deny him a refer-
ral, and that, as the Seventh Circuit has said, "not
every impropriety committed during such (Section
7) activity places the employee beyond the protec-
tive shield of the Act" (N.L.1?.B. v. Thor Power Tool
Company, 351 F 2d 584, 587) But it is also true, as
the Court pointed out, that "flagrant conduct of an
employee, even though occurring in the course of
Section 7 activity, may justify disciplinary action by
the employer . . . The employee's night to engage
in concerted activity may permit some leeway for
impulsive behavior, which must be balanced against
the employer's right to maintain order and respect"
(id) And one need hardly add that a union that
serves as the employer's hiring agent has a compa-
rable "right" at its hiring facility.
16 Scofield v NLRB, 394 U S 423, see also NLRB v Allis-
Chalmers Mfg Co, 388 U S 175, and NLRB v Industrial Union of
Marine and Shipbuilding Workers, 391 1U S 418
The General Counsel asserts that Williams' conduct
was not so flagrant as to justify disciplinary action by the
employer during the course of his Section 7 activity. The
General Counsel does not dispute that the Union has a
right to maintain peace and ordei in its facility and to
protect its employees, members, and officers against
undue harassment as a method of retaining trust in the
fairness of the operation by its members and to protect
its representatives and agents from unwarranted abuse
while conducting their duties. It is undisputed that Wil-
liams, after being told that the list did contain a typo-
graphical error, that he was on the list, that a name ap-
peared twice, for which Harer apologized, and Williams
continued to be very abusive, using strong language in a
strident voice despite assurances that the matter would
be corrected immediately. Harer clearly felt threatened
and the threatening of an individual engaged in the dis-
patch process is a matter to be avoided and was not the
exercise of a Section 7 rights
The evidence of record requires the conclusion that
Harer filed charges against Williams and Sham which re-
sulted in their discipline, not because Williams disagreed
with or protested the clearly erroneous unofficial dis-
patch sheet but because of the manner of raising that
protest which reduced Harer to tears, greatly upset her,
and disturbed the peaceful and orderly operation of the
hiring hall
The General Counsel did not claim or demonstrate
that the filing of the charges and the conduct of the pro-
ceedings violated the regular disciplinary procedures of
the Union or the International Although Frazer's solici-
tation of potential members for the trial board occa-
sioned by the unusual nature of the events occurred prior
to the actual filing of the charge, this has not been
shown to be contrary to any bylaw or constitutional pro-
vision nor was it shown to be other than diligence in en-
suring orderly processing in an expeditious manner of a
forthcoming charge. As noted above, there is no warrant
supporting a conclusion that the trial board based its de-
cision on any matter other than the evidence before it
The evidence was not shown to have mentioned the
filing of a charge by Williams with the Board, Williams'
grievance or complaints filed with the Union or other-
wise, or Sham's intraunion activities
There was no basis to find that the evidence before the
trial board, which was not clearly described in this
record, may have led individuals who were not used to
adjudicating in a legal sense and should not be judged by
the criteria normally utilized in determining the proprie-
ty of evidentiary hearings and judicial proceedings,
could not have reasonably led to the conclusion that
Williams abused an employee, member, and representa-
tive of the Local while in the discharge of her dutnes
Similarly, the record fails to show that the disciplinary
action against Sham was motivated by proscribed rea-
sons Branson candidly admitted that ShaM was dissatis-
fied, and was stirring up trouble with members since he
was laid off as a business agent in January 1983. Al-
though Shain testified at this trial that he intended to run
for the position of secretary-treasurer, Branson's unrefut-
ed testimony was that the first day he heard of it was 16
February 1984 and it cannot be found as a motivating
factor in Respondent's actions. Branson had planned to
retire at the end of his current term but reacted to
Sham's announcement of his plans to oppose Branson by
stating that that altered his plans and he intended to run
again Sham's grousing was not alleged nor was it shown
to be a motivating factor in the decision to file charges
or to discipline him As noted above, neither Branson
nor Frazer voted. The evidence presented to the trial
board was not specifically detailed
It is found that the facts do not support the General
Counsel's allegation and it has not been shown by the
preponderance of the evidence that Respondent took its
action against Sham and Williams for reasons other than
attempting to maintain order in the union hall It is not
unreasonable for a union to assert that an officer and
member has an affirmative duty to maintain order and
discipline within the hall and to ensure that its officers
and employees are not subjected to undue harassment.
Respondent has not been shown to have acted unlawful-
ly in fining and disciplining Sham and Williams and the
evidence fails to establish that a violation of the Act has
occurred Accordingly, I recommend that the complaint
in this proceeding be dismissed in its entirety
1850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed25
ORDER
It is ordered that the complaint be dismissed in its en-
tirety.
" If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur-
Order
.
shall, as provided in Sec 102 48 of the Rules, be adopted by the poses