Teamsters Local 287 (Consolidated Freightways)

National Labor Relations Board - Board Decisions

Oct 18, 1990

300 N.L.R.B. 539 (N.L.R.B. 1990)

539
300 NLRB No. 11
TEAMSTERS LOCAL 287 (CONSOLIDATED FREIGHTWAYS)
1 On November 1, 1987, the Teamsters International Union was readmitted
to the AFL–CIO. Accordingly, the caption has been amended to reflect that
change.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
3 Interest will be computed in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
1 Respondent, in its answer, admits it is a labor organization within the
meaning of Sec. 2(5) of the Act and that the Employer meets one of the
Board’s applicable discretionary jurisdictional standards and is an employer
engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. I
therefore find it will effectuate the policies of the Act for the Board to assert
its jurisdiction.
2 The governing contractual provision reads as follows: ‘‘For casual employ-
ees who work on broken time or day to day basis for various employers, the
Local Hiring Hall shall immediately supply such help to the Employer upon
notice by the Employer that such casual employees are needed. In the event
such casual help is not immediately available or the Local Hiring Hall is
closed, the Employer may then hire such casual workers from any other avail-
able source.’’
Local Union No. 287, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO1 (Consolidated
Freightways, Inc.) and Earl Averette. Case 32–
CB–3256
October 18, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 14, 1990, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, to modify the remedy,3 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local Union No. 287,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, AFL–CIO,
San Jose, California, its officers, agents, and represent-
atives, shall take the action set forth in the Order.
Barbara D. Davison, for the General Counsel.
Joseph R. Colton (Beeson, Tayer, Silbert, Bodine & Living-
ston), for the Respondent.
Margaret Jacobsen, for the Employer.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO Administrative Law Judge. The
hearing in this case, held on December 15, 1989, is based
on an unfair labor practice charge filed on July 12, 1989, by
Earl Averette (Averette) and a complaint issued on August
24, 1989, on behalf of the General Counsel of the National
Labor Relations Board (the Board), by the Regional Director
of the Board, Region 32, alleging that Teamsters Local
Union No. 287 (the Respondent) has engaged in unfair labor
practices within the meaning of Section 8(b)(2) and 1(A) of
the National Labor Relations Act (the Act). The complaint
alleges that Respondent violated the Act by engaging in the
following conduct: On or about April 3, 1989, at the Re-
spondent’s request, Consolidated Freightways, Inc. (the Em-
ployer) and the Respondent entered into and thereafter main-
tained an agreement or understanding whereby the Employer,
when the Respondent’s hiring hall was closed, agreed to hire
and employ only those casual employees whose names ap-
peared on a list provided to the Employer by Respondent,
and that Respondent omitted Averette’s name from the list
for arbitrary and invidious reasons, including Averette’s race
and/or his perceived involvement in an internal political dis-
pute among Respondent’s members. Respondent filed an an-
swer denying the commission of the alleged unfair labor
practices.1
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the parties’
posthearing briefs, I make the following
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
The Employer is in the business of intrastate and interstate
transportation of goods and materials by truck. The Employ-
er’s facility involved in this case is its San Jose, California
terminal. Respondent represents the truckdrivers and dock-
workers employed there. The Respondent and Employer are
parties to a collective-bargaining agreement which governs
their terms and conditions of employment. The agreement
was in effect at all times material to this case.
In addition to its regularly employed dockworkers, the
Employer employs workers on a casual basis to do dock
work at its San Jose terminal. The casual dockworkers are
represented by the Respondent and their terms and conditions
of employment are set by the aforesaid bargaining agree-
ment. Under the terms of that agreement the Employer is ob-
ligated to hire the employees represented by the Respondent,
including its casual workers, exclusively through Respond-
ent’s hiring hall facility, with certain exceptions. One of the
exceptions provides that the Employer may hire casuals from
any source, if the need to employ them arises when the hir-
ing hall is closed, or if casuals are not immediately available
from the hiring hall.2
On the workshift which begins at 11 p.m. on Sunday and
ends sometime on Monday morning or afternoon (the Sun-
day–Monday shift), the Employer usually needs casual dock-
workers to supplement its regularly employed dockworkers,
inasmuch as there usually is three or four times as many
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 All dates hereinafter, unless specified otherwise, refer to 1989.
4 Gullo previously was Respondent’s secretary-treasurer. He had recently
been unseated by Haas.
trucks to unload and/or reload on that shift as on any of the
other shifts. Respondent’s hiring hall is closed on Saturday
and Sunday, therefore in order to submit its referral request
to the hiring hall’s dispatcher on Friday for the casual dock-
workers it will need to work the Sunday–Monday shift, it is
necessary for the Employer on the preceding Friday to esti-
mate the amount of freight it will have for the Sunday–Mon-
day shift. It is not until Sunday, however, that the Employer
is able to determine exactly the amount of freight which will
have to be handled by the workers on that shift. The Em-
ployer at this time quite often discovers it needs more casual
dockworkers for the Sunday–Monday shift then had been re-
quested on the previous Friday from Respondent’s hiring
hall. During David Hall’s June 1988 to September 1989 ten-
ure as an operations supervisor for the Employer, this situa-
tion occurred quite frequently. Hall, who was in charge of
seeing to it that the Sunday–Monday shift was properly
staffed, after learning on Sunday that he would need addi-
tional dockworkers to handle the freight expected for the
Sunday–Monday shift, hired the extra dockworkers person-
ally by telephone. In doing this he used a list of names
which he had compiled. On the list were the names of per-
sons who had been referred to the Employer in the past by
Respondent’s hiring hall and had been good workers, and the
names of workers recommended to him by Respondent’s reg-
ular employees. Prior to the time material, Respondent had
not given the Employer a list of names to use when the Em-
ployer needed to hire casual dockworkers when the hiring
hall was not open for business.
Respondent’s business agent, Jerry Durham, is responsible
for seeing to it that the Employer abides by the terms of its
collective-bargaining contract with Respondent. During 1988
Durham was unhappy about Hall’s above practice of hiring
casual dockworkers directly, rather than using the Respond-
ent’s hiring hall to hire all the casuals used by the Employer
on the Sunday–Monday shift. Durham suspected that Hall
waited until Sunday to hire the additional dockworkers in
order to circumvent the Employer’s contractual obligation to
hire casuals through the Respondent’s hiring hall. Durham,
as well as Respondent’s president Robert Sandoval, also sus-
pected that it was to avoid having to grant regular employ-
ment status to additional dockworkers, which prompted the
Employer to hire so many casuals. Prior to the time material,
President Sandoval, who was employed by Respondent as a
truckdriver at its San Jose terminal and served as one of the
Respondent’s stewards at the terminal, asked Hall why the
Employer hired so many casuals on Sunday for the Sunday–
Monday workshift, rather than on Friday through the Re-
spondent’s hiring hall. Hall responded by explaining that it
was not until Sunday, when the Respondent’s hiring hall was
closed, that the Employer by means of its computer deter-
mined the exact amount of freight tonnage which would be
available for the Sunday–Monday workshift. Sandoval re-
layed this explanation to Durham, who accepted it.
During 1988 Durham was informed by the Respondent’s
hiring hall dispatcher that members of Respondent who were
registered for work on the hiring hall’s out-of-work register
were complaining that the Employer had a practice of calling
casuals directly for the Sunday–Monday workshift, rather
than using the hiring hall. Durham telephoned the Employ-
er’s operation manager, Dan Sisneros, who, with Hall, was
responsible for staffing the Sunday–Monday workshift, and
relayed this complaint to him. Sisneros explained the reason
why the Employer was hiring casuals directly rather than
using the hiring hall and also complained to Durham that the
Employer was unable to get a sufficient number of persons
to do casual dock work on the Sunday–Monday shift from
the hiring hall or from other sources. Durham accepted
Sisneros’ response and took no further action concerning the
complaints of the hiring hall registrants.
Subsequently, in mid-January 1989,3 Tom Blue assumed
the position of Respondent’s hiring hall dispatcher. Blue,
within 1 or 2 weeks of assuming that position, told Durham
that members of the Respondent who were registered for
dock work on the hall’s out-of-work register were com-
plaining that the Employer was violating its contract with the
Respondent by engaging in the practice of calling workers
directly for Sunday–Monday shift casual dock work, rather
than using the Respondent’s hiring hall. On a number of dif-
ferent occasions, Blue relayed this complaint to Durham
who, on each occasion, as he testified, responded: ‘‘Until I
had a member come to me and complain directly with direct
evidence or some type of something to give me [an] indica-
tion that in fact [what] they were indicating was true, that
I didn’t at that point in time . . . have the luxury and the
time to go out and find out what they were complaining
about,’’ but ‘‘if a member came forward and indicated to me
that in fact this was going on, that I would in fact investigate
it.’’ (Tr. 273–274.)
During the time material to this case–February, March,
April–Respondent’s officers and business agents were cam-
paigning for reelection. A rerun election was scheduled for
August or September. The position of secretary-treasurer is
Respondent’s most important office. David Haas was the in-
cumbent in that position. Mario Gullo opposed him for re-
election.4 The candidates in the election divided themselves
into two factions; one lead by Haas and the other by Gullo.
Respondent’s president Robert Sandoval and Bill Brooke,
one of its business agents, were in the faction which sup-
ported Haas’ reelection, whereas, Jerry Durham, one of Re-
spondent’s other business agents, was in the faction which
supported Gullo’s election. Haas was defeated by Gullo.
Also Sandoval and Brooke lost in their bids for reelection,
whereas Durham was reelected.
Earl Averette, the Charging Party, is an experienced dock-
worker in the truck freight industry and has been a member
of various locals of the Teamsters Union for a period totaling
approximately 20 years. Previously, in the 1960s, Averette
was employed as a professional boxer, under the name of
Marty Franklin. Socially he normally still uses the name of
Marty Franklin, but in applying for work and in an employ-
ment context uses his legal name.
In February Averette, who had allowed his membership in
Teamsters Local 150 to lapse while employed as a laborer
in the construction industry, decided to again seek work as
a teamster in the freight industry. He was advised by a friend
that there might be work available out of Respondent’s hir-
ing hall. His friend told him to call Respondent’s business
agent Brooke. Averette telephoned Brooke. He introduced
himself as Marty Franklin, informed Brooke that he was a
black man and described his past work experience in the
541TEAMSTERS LOCAL 287 (CONSOLIDATED FREIGHTWAYS)
5 That Averette visited Respondent’s office and applied for membership on
February 14, rather than on some other date, is established by the fact that
his membership application is dated February 14 and that the Respondent’s
membership meeting, which he attended on the same day as he visited Re-
spondent’s office, was held February 14.
6 Durham and Averette had never been introduced and at this time did not
know one another. They were formally introduced for the first time on April
3, when, as described infra, they met in Secretary-Treasurer Haas’ office.
7 The above description of what occurred at the February 14 meeting is
based on a composite of the testimony of the three witnesses who testified
about this meeting: Averette, Durham, and Sandoval. I note that Averette did
not contradict Durham’s testimony that Averette flipped the lights off and on
during the commotion and, insofar as Averette’s rebuttal testimony can be con-
strued as a denial that he was shouting during the commotion, I credit Dur-
ham’s testimony that he observed Averette shouting. Durham’s and Averette’s
testimony concerning this meeting was perfectly consistent in all other signifi-
cant respects.
8 As indicated supra, besides being Respondent’s president, Sandoval was
employed as a truckdriver on the night shift at the Employer’s terminal and
was one of Respondent’s job stewards.
freight industry, and noted that it was his understanding that
two blacks had recently been referred to jobs by Respond-
ent’s hiring hall, and asked if Respondent had any work for
him in either the freight industry or in any other industry.
Brooke suggested that he join the Respondent and sign up
for work at Respondent’s hiring hall, and stated that when
he came to Respondent’s office that he should be sure to
visit him.
On February 14 Averette visited Respondent’s office and
filled out a membership application form. His application
was not processed on that date because the clerical who han-
dled the transaction wanted to determine whether, in view of
Averette’s current membership in Teamsters Local 150, he
would be able to join Respondent without paying the usual
initiation fee. However, the clerical was unable to contact
anyone in Local 150’s office because it had already closed
for the day, so he told Averette to return the next day and
that at that time his membership application would be proc-
essed.5
Before leaving Respondent’s office on February 14,
Averette talked with Business Agent Brooke and informed
him he had applied for membership but would have to return
to the office the next day to complete the application process
and join. During the conversation which followed, Brooke
invited Averette to accompany him across the street to a
bowling alley cocktail lounge where he stated he would in-
troduce him to some of the Respondent’s members, and also
invited him to attend the Respondent’s monthly membership
meeting which was scheduled for that evening. Averette ac-
cepted these invitations.
While with Brooke in the bowling alley cocktail lounge
that day, Averette was introduced by Brooke to several of
Respondent’s members, including Respondent’s president
Robert Sandoval, who as indicated supra, was also employed
as a truckdriver by the Employer. Brooke introduced him to
the members as Marty Franklin and some of them remarked
that they remembered him from his days as a boxer.
Averette, after being introduced to Sandoval, informed
Sandoval he was interested in finding work in the freight in-
dustry, that he had worked in that industry for approximately
20 years and needed only 9 more years of employment for
his pension. Sandoval indicated there was not much work
available at Respondent’s hiring hall, but remarked that the
Respondent was frequently unable to furnish the Employer
with all the casuals it needed and suggested that Averette
give Sandoval his name and telephone number and Sandoval
would submit that information to the Employer’s graveyard
shift supervisor and if the Employer needed casual help per-
haps the Employer would contact him. Also during this con-
versation Sandoval invited Averette to attend the membership
meeting scheduled to be held that evening, as Sandoval’s
guest, in view of the fact that Averette was a member of an-
other Teamsters local union. Sandoval suggested to Averette
that when he went to the meeting that he should stand behind
the sergeant at arms at the entrance to the meeting room and
in this way the sergeant at arms would be able to introduce
him to other members as they entered.
That evening when Averette entered the Respondent’s
meeting hall, rather than take a seat, he followed Sandoval’s
suggestion and stood at the entrance next to or behind the
sergeant at arms, so he could meet some of the members as
they entered. While Averette was at the entrance, Mario
Gullo, Respondent’s former secretary-treasurer, entered and
as he did he said something to the sergeant at arms which
caused the sergeant at arms to lose his temper and led to an
argument between Gullo and the sergeant at arms, with the
sergeant at arms pushing or shoving Gullo. Others in the hall
joined in this confrontation and the result was that a substan-
tial number of persons began to shout, push, and shove one
another. Respondent’s president Sandoval, after unsuccess-
fully attempting to bring the meeting to order, adjourned it
and the police were summoned to restore order.
During the above-described commotion Averette, who was
standing with the sergeant at arms, intermittently turned the
lights in the room on and off and joined the others in their
shouting, but did not push or shove anyone. Immediately
after this commotion had begun, Business Agent Durham en-
tered the hall and was informed by one of the members that
the commotion had started when Respondent’s former sec-
retary-treasurer Gullo said something to the sergeant at arms
which angered the sergeant at arms and resulted in an argu-
ment. In view of this explanation, Durham concluded that the
commotion which had disrupted the meeting involved a po-
litical dispute. Durham at this point in time observed
Averette, who was standing near the sergeant at arms, flip-
ping the lights off and on and shouting. Durham assumed
that since Averette was standing near the sergeant at arms
that he was a part of the sergeant at arms’ staff. Since he
had never met Averette and did not know who he was, Dur-
ham went over to him and angrily asked who he was and
whether he was a member of Respondent. Averette, using an
obscenity, told Durham it was none of his business and to
get out of his face and stated that if Durham objected to his
presence that he should speak to President Sandoval because
he was there as Sandoval’s guest.6 Durham did not reply and
walked away.7
On February 15 Sandoval gave his supervisor, Operations
Supervisor Hall, Averette’s name and telephone number and
indicated that Averette was available if the Employer ever
needed additional casual dockworkers.8 Subsequently, from
time to time, during February and March, Sandoval men-
tioned to Hall and Operations Manager Dan Sisneros, that if
they had additional work for casual dockworkers on the Sun-
day–Monday shift to be sure to call either Averette or Blake
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Although he registered for work, Averette never returned to the hall to
seek work, as required by the hall’s rules and regulations, because he already
was working during the week when the hiring hall was open.
10 The description of Averette’s March 18 conversation with Brooke is
based on Averette’s testimony. Brooke testified that while he had several
phone conversations with Averette during this period, he did not ‘‘recall’’ this
one or a conversation with Averette in which Blue’s name was mentioned. I
credited Averette’s testimony because when he testified about this conversation
his testimonial demeanor was good.
Downing, whose name Sandoval had apparently also pre-
viously given to Hall.
On March 13 Averette returned to Respondent’s office to
complete the process of joining Respondent. Previously, by
memo dated February 15, Respondent was informed by
Teamsters Local 150’s secretary-treasurer, that Averette was
currently a member of that union, but having not paid his
dues was not a member in good standing, thus before Local
150 could issue him a transfer card he would have to pay
a reinstatement fee and the back dues owed to the union. On
the same date Respondent also received a memo dated Feb-
ruary 15 from one of the Local 150’s clericals which stated:
‘‘Thought I better send a memo on Earl Averette. He also
has a termination notice that had to be sent to his last em-
ployer Transcon due to his check being returned. He has
been a real problem and would recommend you collect
cash. . . . He has worked for months without paying his
dues here—Keeps leaving every time he gets a termination
notice. Good Luck.’’
On March 13 Averette indicated to the office clerical, who
previously had processed his February 14 membership appli-
cation, that he was ready to join Respondent. The clerical re-
sponded by stating that Respondent would not accept a check
from him, that he would have to pay the required initiation
fee and dues with cash because Respondent had been in-
formed by Local 150 that a check Averette had given that
union had bounced. Averette asked how much he would have
to pay and was advised he was required to pay one-half the
initiation fee and 1 month’s dues. He paid that amount and
became a member of Respondent.
On March 13, after joining Respondent, Averette went
next door to the Respondent’s hiring hall and registered for
work using his legal name, but verbally introduced himself
to Tom Blue, the hiring hall dispatcher, as Marty Franklin.9
Blue told Averette he had heard about the problems which
had occurred at the February 14 membership meeting and ex-
plained to Averette that there was currently a fight going on
between the supporters of two rival groups of candidates
seeking to fill positions in Respondent. Blue stated he op-
posed the reelection of President Sandoval and Business
Agent Brooke and criticized Sandoval’s performance as
president. Blue also explained to Averette that the supporters
of the candidates who were campaigning to defeat Sandoval
and Brooke thought that Averette had joined Respondent ‘‘to
be enforcer for Bill Brooke’s group,’’ because they had
heard Averette ask to speak to Brooke on February 14 when
Averette visited Respondent’s office. Blue also pointed to an
official Board document posted on the hiring hall bulletin
board and commented ‘‘this is your buddy Bill Brooke’s
work.’’ Averette responded by stating he was not on any-
one’s side, that he had not joined Respondent to be an en-
forcer, that he had been a member of the Teamsters Union
for over 20 years and had joined Respondent in order to seek
employment, and was not there to ‘‘hassle’’ anyone.
On Saturday, March 18, Averette telephoned Brooke and
told him he had joined Respondent but did not know if it
was worth all of the trouble trying to get work in San Jose
and told Brooke about his March 13 conversation with Re-
spondent’s dispatcher Blue. Brooke stated that Averette
should be careful of what he stated when Blue was present
because Blue was ‘‘with the other group.’’ Brooke also in-
formed Averette that the Employer might need him for the
Sunday–Monday shift that weekend and, if so, would tele-
phone him on Sunday at home.10
On Sunday, March 19, Averette received a telephone call
at approximately noontime from a representative of the Em-
ployer asking him to report for work as a dockworker that
evening to work the Sunday–Monday shift. He reported, as
requested, and worked from 11 p.m. Sunday, March 19, to
approximately 2:30 p.m. Monday, March 20. On the fol-
lowing two Sundays, March 26 and April 2, Averette was in-
formed by Operations Supervisor Hall that the Employer had
dock work available for him on the Sunday–Monday shift.
On each of those occasions, as requested, Averette worked
for the Employer on the Sunday–Monday shift performing
dock work. On the three occasions he worked for the Em-
ployer—March 19–20, March 26–27, and April 2–3—
Averette used his legal name.
On March 21 at approximately 4 a.m., shortly after
Sandoval arrived for work at the Employer’s terminal,
Sandoval spoke to Averette and told him he had heard he
was doing a good job for the Employer, but had also heard
that Business Representative Durham was questioning people
about his employment with the Employer and asking how he
had gotten work with the Employer. Sandoval assured
Averette that he had nothing to worry about because his em-
ployment was on the ‘‘up and up’’; that he had joined Re-
spondent, and the Employer had called him during the week-
ends.
During the following week—the week ending Friday,
March 31—Business Agent Durham, who was the business
agent assigned by Respondent to administer all the Respond-
ent’s freight contracts including the contract with the Em-
ployer, personally spoke to Sandoval about Averette’s em-
ployment. Their conversation took place one afternoon when
Sandoval was at Respondent’s office on business and Dur-
ham asked him to come into his office because he wanted
to talk to him. In response to Durham’s inquiry about
Averette’s employment with the Employer, Sandoval stated
the Employer was employing Averette on a casual basis
when it needed extra help, and that Averette was a good
worker. Durham stated he thought the Employer should not
employ Averette. Sandoval asked, ‘‘Isn’t he a member of our
local union now.’’ Durham acknowledged Averette had re-
cently joined Respondent, but handed Sandoval a February
15 memo to Respondent from Teamsters Local 150, the local
union which Averette had previously been a member of. This
memo, as described in detail supra, informed Respondent
that Averette while a member of Local 150 had worked for
several months without paying his union dues and that each
time Local 150 sent his employer a notice to terminate him
for nonpayment of dues, that he left his employment and in
one instance had given a dues payment check to the union
which bounced due to a lack of funds. The memo further
stated that Averette ‘‘has been a real problem and would rec-
543TEAMSTERS LOCAL 287 (CONSOLIDATED FREIGHTWAYS)
11 In resolving the conflict between Durham’s and Sandoval’s testimony, I
considered and rejected the testimony of former Business Agent Bill Brooke
and Business Agent Ray Corrie. Brooke and Corrie, whose offices are situated
adjacent to Durham’s, each testified that they overheard an isolated fragment
of Durham’s conversation with Sandoval. Counsel for the General Counsel
contends that Brooke’s testimony corroborates Sandoval’s version of the con-
versation in one significant respect, and counsel for Respondent claims
Corrie’s testimony corroborates Durham’s version in one significant respect,
as well as Durham’s testimony concerning the date of the conversation. It is
undisputed that Brooke and Corrie were busy at work in their own offices dur-
ing the time in question and were not paying particular attention to the con-
versation between Durham and Sandoval, but each supposedly just happened
to hear one isolated fragment of the conversation, and in Corrie’s case there
is nothing in the record to explain why he would have remembered that frag-
ment several months after the event. I am of the opinion that their testimony
is unreliable.
ommend you collect cash.’’ When Sandoval finished reading
the memo, Durham told him ‘‘this is not the type of person
we want in our local union.’’ Sandoval answered, ‘‘members
are members’’ and stated that people changed and that
Averette was a qualified worker whose work performance for
the Employer had been good. Durham responded by handing
Sandoval a typed list of 21 members of Respondent and their
telephone numbers. The list of names and telephone numbers
was on an undated and unsigned sheet of Respondent’s sta-
tionery and was entitled ‘‘NIGHT DOCK WORK (WHEN
HALL IS CLOSED).’’ The list did not include Averette’s
name nor the name of Blake Downing, another member of
Respondent whom at Sandoval’s suggestion the Employer
had been hiring to do casual dock work when it needed extra
workers when the Respondent’s hiring hall was closed. As
he handed the list to Sandoval, Durham stated, ‘‘These are
the people that . . . should be called at [the Employer] if
they need additional people after the hall is closed.’’
Sandoval asked why neither Averette’s nor Downing’s name
was listed. Durham answered, ‘‘They don’t have seniority.’’
Sandoval told him that seniority should not have any bearing
on the matter. Durham responded by stating, ‘‘well, this is
the list’’ and asked if Sandoval would take it to the Employ-
er’s Operations Supervisor Dan Sisneros. Sandoval agreed to
do this and that same afternoon, as described infra, gave the
list to Sisneros.
The substance of Durham’s above-described conversation
with Sandoval is based on Sandoval’s testimony. I consid-
ered Durham’s testimony that when he met with Sandoval
and gave him the list of names and telephone numbers to
take to Operations Manager Sisneros, that he explained to
Sandoval that the reason for the list was that he had received
numerous complaints from persons registered for work at the
Respondent’s hiring hall that the Employer ‘‘was not prop-
erly staffing the crew prior to this Sunday night–Monday
morning shifts, and that [the] list had been put together by
members of the hiring hall that wished to be on the list, for
them to be called at home when the hall is closed,’’ and con-
sidered his further testimony that he told Sandoval to give
the list to Sisneros ‘‘so [Sisneros] could utilize [it], if in fact
he needed additional people.’’ Durham did not specifically
deny that portion of Sandoval’s testimony which concerned
the discussion between Durham and Sandoval about
Averette’s employment with the Employer and his member-
ship in Respondent. However, if the conversation between
Durham and Sandoval occurred in late February, as Durham
testified, Sandoval’s version would have been inherently im-
plausible because it was not until much later that Averette
joined Respondent and was first hired by the Employer. I re-
ject Durham’s and credit Sandoval’s testimony about what
was said when they met because Durham’s testimonial de-
meanor was poor and Sandoval’s was good, when they testi-
fied about their conversation during this meeting.11
I also conclude it was sometime during the week ending
March 31 when Durham met with Sandoval, as described
supra, and gave him the list of names and telephone numbers
to give to the Employer. In rejecting Durham’s testimony
that it was late in February, after February 25, when he met
with Sandoval and gave him the list of names to give to the
Employer, and in concluding that this meeting occurred dur-
ing the week ending Friday, March 31, I considered the fol-
lowing circumstances: although Sandoval had no independent
recollection of when his meeting with Durham occurred (Tr.
178), it is clear from the content of their conversation that
it occurred sometime in March, after Averette had joined the
Respondent on March 13 and after he was hired by the Em-
ployer to work the Sunday–Monday shift on March 19–20;
Durham’s testimonial demeanor was poor when he testified
it was late in February when he met with Sandoval and gave
him the list of names to give to the Employer; Sandoval gave
the list of the names to the Employer the same afternoon that
Durham asked him to do this; David Hall, the Employer’s
supervisor responsible for hiring employees for night dock
work when the hiring hall is closed, as I have found infra,
credibly testified that it was on April 2 when he first re-
ceived the list of names and telephone numbers that Durham
had instructed Sandoval to transmit to the Employer; and, as
I have found infra, Respondent’s Terminal Manager John
Paiva credibly testified that on the morning of Monday, April
3, Durham informed him that the aforesaid list of names had
been provided to the Employer by Respondent during the
previous week (Tr. p. 246, L. 20–p. 247, L. 12). These con-
siderations in their totality warrant the inference that it was
sometime during the week ending Friday, March 31, that
Durham spoke with Sandoval and gave him the list of names
and telephone numbers to give to the Employer.
As I have found supra, when Durham met with Sandoval
during the week ending Friday, March 31, and asked him to
transmit the above-described list of names and telephone
numbers to Operations Manager Sisneros, on the same day
Sandoval personally handed the list to Sisneros. He explained
to Sisneros that Durham had given him the list and had stat-
ed that if the Employer needed to employ more workers than
had been dispatched to the Employer from the Respondent’s
hiring hall, that the persons on the list which Sandoval had
given to Sisneros ‘‘were the only people that could be used
additional.’’ Sisneros replied, ‘‘if that’s what the Union
wants, that’s what we will do’’ and, in Sandoval’s presence,
photocopied several copies of the list for other members of
supervision and gave Sandoval one of the copies.
On the night of Sunday, April 2, when Operations Super-
visor Hall arrived for work, Hall, who was responsible for
staffing the Sunday–Monday shift, found in his mailbox the
above-described list of names and telephone numbers entitled
‘‘NIGHT DOCK WORK (WHEN HALL IS CLOSED).’’
When Sandoval arrived for work later during that shift, Hall
asked him about the list. Sandoval informed him that at the
Respondent’s insistence the list had been given to Operations
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 This description of Durham’s conversation with Paiva is based on Paiva’s
testimony. Durham testified he told Paiva that members had complained to
him that the Employer was not using people from the Respondent’s hiring hall,
and that Durham had visited the Employer’s terminal that morning and discov-
ered this was true, and told Paiva that in view of this a grievance would be
filed for ‘‘runaround pay’’ on behalf of those members who had complained.
Durham further testified he told Paiva he felt that by not calling the hiring
hall for workers, that the Employer was purposely attempting to circumvent
the hiring hall provisions of the parties’ contract and that when Respondent
had previously experienced this problem with the Employer, that as a courtesy
to the Employer Sandoval had given the Employer’s operations manager a list
of names of the people who were willing to be called for work at home by
the Employer and that Respondent had asked that whenever the Employer
needed additional workers which the hiring hall was not able to supply, that
it should use this list and that Durham felt the Employer was trying to cir-
cumvent the hiring hall by not using the list. I credited Paiva’s and rejected
Durham’s testimony because Paiva’s testimonial demeanor, which was good,
was better than Durham’s when they testified about this conversation.
13 Later that day Paiva telephoned Durham and told him he was upset about
the list because he felt that something of that nature should have been signed
and dated and since he was the Employer’s terminal manager that a change
in policy of that kind should have been sent to him or handed to him person-
ally, rather than just given to one of his subordinates. The record does not
reveal what, if anything, Durham replied.
14 This description of Sandoval’s conversation with Paiva is based on a
composite of their testimony.
15 Averette, Hall, Paiva, and Sandoval testified about this meeting. The
above-description is based on a composite of Hall’s, Paiva’s, and Sandoval’s
testimony. Their testimonial demeanor was good. I also note that Hall was a
disinterested witness, inasmuch as he was no longer employed by the Em-
ployer when he testified in this proceeding, having terminated his employment
several months prior to the hearing. I rejected Averette’s testimony about the
meeting, insofar as it deviates from the above description, because I received
the impression from my observation of him and the manner in which he testi-
fied about this meeting, that his memory of what occurred at this meeting was
poor. Finally, insofar as there is a conflict between Sandoval’s and Hall’s testi-
mony concerning whether or not the employees were terminated in the middle
of their workshift, I credited Hall’s testimony because in view of his position
as the employees’ immediate supervisor, I am of the opinion he had a better
reason than Sandoval to remember at what point during the workshift their
employment was terminated.
Manager Sisneros and that the Employer was to use the list
before calling any other persons.
On April 3 at approximately 8:30 a.m., Durham tele-
phoned John Paiva, the Employer’s terminal manager, and
told him the Employer was employing three people, whom
he did not name, on its graveyard shift and stated they were
not ‘‘active members’’ of Respondent and there would be a
grievance filed against the Employer because it had em-
ployed the three, rather than employees named on the list
which had been given to the Employer the previous week.
Durham explained to Paiva that the Employer was obligated
to first employ persons named on the list which had been
given to the Employer. He informed Paiva that it was his
opinion that the Employer had violated the governing collec-
tive-bargaining contract by not ordering labor on Friday and
stated that in filing its grievance against the Employer the
Respondent intended to ask for a day’s pay for three of Re-
spondent’s members who would have been referred from the
Respondent’s hiring hall to work on the graveyard shift, if
on Friday of the previous week the Employer had used the
hiring hall to meet its labor needs for that shift.12
Paiva, prior to his above-described April 3 conversation
with Durham, never had seen nor heard of the list of em-
ployees that Durham had referred to, so he promptly spoke
to Hall and questioned him about the matter. Hall showed
Paiva the list. Paiva told Hall there was a problem with the
Respondent concerning the list because the names of casual
dockworkers Earl Averette, Gene Lopez, and Thornton
Ohshaski were not on the list, yet they were employed on
the Sunday–Monday shift. Paiva instructed Hall that the three
were not to work ‘‘unless they were called off this particular
list.’’13
Immediately before or after Paiva spoke to Hall about his
conversation with Durham, he also spoke to Sandoval about
the matter. He told Sandoval that Hall had advised him that
casuals Averette, Lopez, and Ohshaski were good workers,
and asked Sandoval if they were active members of Re-
spondent. Sandoval stated that all three were members of Re-
spondent. Paiva stated that he had been told by Durham that
he could not employ them anymore since they were not ac-
tive members. Sandoval replied by suggesting that Paiva at
this time meet with the three casuals and explain the situa-
tion to them. Paiva agreed.14
On April 3, at approximately 9 a.m., Paiva, in the presence
of Hall and Sandoval, met with Averette, Lopez and
Ohshaski and told them that the Employer had a contract
with the Respondent which it had to abide by and that the
Respondent had instructed him not to employ them any
longer. He explained to them that the reason there was a
problem with their continued employment was that they were
not ‘‘on a prescribed list of people who were to be used on
the dock’’ and that in view of this the Respondent had asked
for their termination. Paiva and Sandoval advised the em-
ployees that if they objected to the Employer’s conduct that
they should speak to Business Agent Durham. Paiva in-
structed Hall to terminate their employment immediately;
sign their timecards out. All three employees objected to the
way in which they were being treated and were especially in-
censed that they were being terminated in the middle of the
workshift, with several hours of overtime work still remain-
ing. Hall apologized to them but explained that the Employer
was required to comply with the conditions for their employ-
ment set by Respondent. Averette indicated he was very
upset about the matter and intended to file charges with the
EEOC against Respondent.15
On April 3, late in the afternoon, Averette went to the Re-
spondent’s office and met with David Haas, the Respond-
ent’s secretary-treasurer. Averette told him that Durham had
called the Employer and told the Employer not to employ
Averette and two other casual dockworkers who had been
working on the Sunday–Monday shift. Haas indicated he did
not believe Durham would have engaged in such conduct and
called Durham into the room. In Averette’s presence, Haas
asked Durham if he had instructed the Employer to remove
Averette from the job and told the Employer it could no
longer employ him. Durham denied having engaged in this
conduct. However, in response to Haas’ further inquiries,
Durham admitted he had given the Employer a list of names
to use when it needed extra casual workers. He explained
that the list was put together by members of Respondent who
were registered for work at the Respondent’s hiring hall and
that by signing the list they had indicated they were willing
to be called at home when the hiring hall was closed, or
when the hiring hall could not provide anyone to the Em-
ployer. Durham told Haas that the list had been given to
Sandoval to transmit to the Employer. Averette objected to
this, stating that such a list violated the hiring procedure set
forth in Respondent’s contract with the Employer and stated
545TEAMSTERS LOCAL 287 (CONSOLIDATED FREIGHTWAYS)
16 The description of this meeting is based on a composite of Averette’s and
Durham’s testimony. Their testimony about what was stated during this meet-
ing was not inconsistent in any significant respect. 17 The name which Blue asked to be added to the list was not Averette’s.
it was illegal for the Respondent to require the Employer to
hire workers from such a list. Durham denied that by trans-
mitting the list to the Employer the Respondent was violating
the contract. He stated it was the Employer that was vio-
lating the contract by intentionally not calling the hiring hall
for sufficient casuals for the Sunday–Monday shift and by
hiring casuals instead of regular workers to perform the dock
work, and stated that a grievance was being filed by him
against the Employer. The argument between Durham and
Averette had become heated, when Haas interrupted it. He
asked Durham, ‘‘to resolve this, do you have anything
against putting [Averette’s] name on the list?’’ Durham re-
plied, ‘‘no, I have nothing against getting his name on the
list with the rest of the workers.’’ Averette responded by in-
dicating that although he did not agree with the list, he
would be satisfied if his name was added to the list inasmuch
as he felt that by having his name on the list it would enable
him to continue working for the Employer and thus solve his
problem. The meeting ended at this point with Durham and
Averette shaking hands and apologizing to one another for
having lost their tempers.16
On April 5 Durham filed a contractual grievance against
the Employer on behalf of Joe Balteria, Curtis Philyaw, and
Miller White. The grievance alleged in substance that on
April 3 the Employer had violated the hiring procedure set
forth in its contract with the Respondent and as a remedy for
the Employer’s alleged breach of contract asked that Balteria,
Philyaw, and Miller be made whole for the wages and fringe
benefit payments they lost by not being referred to the Sun-
day–Monday shift of April 2–3.
On or about April 5 Averette telephoned Hall and told him
he had spoken to Haas and Durham and that everything had
been resolved, that Durham should notify Hall to add his
name to the list, and that Averette would call Hall Sunday
to see if there was any work available.
It is undisputed that neither Durham nor anyone else from
Respondent ever advised the Employer to add Averette’s
name to the list of employees nor did Respondent ever trans-
mit a revised list of names to the Employer which included
Averette’s name.
On or about Friday, April 7, Sandoval asked Hall if he in-
tended to employ Averette or any of the other casuals that
had been employed on the April 2–3 Sunday–Monday shift.
Hall replied, ‘‘No, I’m not because I’m under instructions
not to call no one else other than the people off this list,’’
and indicated to Sandoval he was having difficulties getting
people from the list to work as casuals (Tr. 153–154, 186).
On Sunday, April 9, Averette telephoned Hall and asked
if there was work available for him. Hall told him that his
name was not on the list. Averette stated Durham had prom-
ised to place his name on the list. Hall stated he was sorry
but there was nothing he could do, and told Averette that if
Averette was able to resolve the matter that Hall would re-
employ him.
Previously on or about Friday, April 7, when Hall was
talking with hiring hall dispatcher Blue over the telephone
about his employment needs for the coming weekend, Blue
told Hall that he did not have to use the list of names given
to the Employer by Respondent. Blue explained to Hall that
Respondent intended that the list be used by only those em-
ployers that continually employed employees who were not
members of Respondent and that the Employer was not one
of those employers. Hall replied he intended to continue to
use the list of names until he officially received word from
Durham to the contrary and stated if Blue wanted to discuss
the matter further that he might prefer to discuss it with Ter-
minal Manager Paiva, rather than Hall. Also at about this
time, Blue apparently asked Hall to add a name to the list,
because Hall communicated this information to Paiva.17
Paiva telephoned Blue on April 10 and told him that, in view
of the problem the Employer had the previous week, that the
Employer would not add a name to the list unless it received
authorization to do so in writing or received a revised list.
Subsequent to April 3, when calling the Respondent’s hir-
ing hall on Fridays to ask for referrals of casual dockworkers
for the Sunday–Monday shift, the Employer adopted a prac-
tice of ordering more casuals than usual in order to avoid
having any further problems with the Respondent concerning
that subject (Tr. 260). But when subsequent to April 3 the
Employer needed extra dockworkers when the Respondent’s
hiring hall was closed or when the hiring hall was unable to
satisfy the Employer’s needs, Hall used the list of names and
telephone numbers furnished by Respondent. However, when
he telephoned the persons named on the list he discovered
that most of them could not be reached or told him they
were unavailable for night shift work, and others on the list
were ineligible to work for the Employer because the Em-
ployer, prior to April 3, had advised Respondent that it did
not desire to employ those employees because of their past
unsatisfactory work performance. Therefore, it was not un-
usual for Hall to exhaust the list of names which had been
provided by the Respondent and still find he needed addi-
tional casual dockworkers for the Sunday–Monday shift.
When this occurred he then used his own personal list of
names and employed persons from that list as casuals, in-
cluding Lopez and Ohshaski, and did this without objection
from the Respondent. However he never called Averette for
employment. He testified his reason for never calling
Averette for employment when he exhausted the Respond-
ent’s list of names, subsequent to April 3, was that he had
mislaid his telephone number.
In May Respondent’s business agent Ray Corrie filed
intraunion charges against Brooke and Sandoval alleging that
they had allowed Averette into the February 14 membership
meeting and that Averette had disrupted the meeting.
On July 12 Averette filed the charge in this case and on
August 24 the complaint issued.
On August 29 a meeting was held between Paiva, for the
Employer, and Corrie, Durham, and Sandoval, for the Re-
spondent, concerning the above-described grievances filed
against the Employer by Durham early in April on behalf of
Respondent’s members Balteria, Philyaw, and White. During
the August 29 grievance meeting there was a brief discussion
about the list of names and telephone numbers which Re-
spondent had given to the Employer to use for calling casual
dockworkers when the Respondent’s hiring hall was closed.
Durham, Corrie, Sandoval, and Paiva testified about this, as
follows.
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Durham testified Paiva stated Sandoval had told the Em-
ployer that Durham had stated that the Employer could only
employ the persons named on the list given the Employer by
Respondent and further testified Paiva also stated that the list
was not satisfactory and he did not intend to continue using
it. Durham further testified that when Paiva made this state-
ment that Durham responded by stating he had not told
Sandoval that the Employer had to use the list and stated that
Sandoval must have misunderstood Durham’s instructions. In
reply, according to Durham, Sandoval stated, ‘‘Well maybe
I did misunderstand you,’’ and also stated that he ‘‘thought
that [Durham] had said that, but maybe not.’’
Corrie testified that when Paiva stated he could only call
the persons named on the list, Durham replied that this was
not true and that the Employer was entitled to call other peo-
ple. Corrie further testified Durham explained to Paiva that
the list had been given to the Employer so it would have a
list of persons to call who had indicated to Respondent they
wanted to work and would be available for work, and that
the Employer could call anyone it wanted and if the Em-
ployer did not want to use the list that it could forget about
the list and not use it, but the Employer should call the Re-
spondent’s hiring hall when there was work available on
weekends. Corrie further testified that Sandoval spoke up and
stated that when Durham gave him the list to give to the Em-
ployer, he told Sandoval that the Employer had to call the
persons named on the list. According to Corrie, in response
to Sandoval’s assertion, Corrie stated he had been present
when Durham spoke to Sandoval about the list and that per-
haps Sandoval misunderstood what Durham had said about
the list, and that Sandoval replied, ‘‘Well, I may have mis-
understood but . . . that’s what I thought.’’
Sandoval testified that the only thing about the list that he
recalls being mentioned at this meeting was that Paiva asked
why Durham had not signed it, and Durham answered by
stating he had nothing to do with the list, which he said had
been generated by Respondent’s hiring hall. Sandoval testi-
fied that no one stated the list was not a mandatory list, or
used words to that effect, nor did anyone say that Sandoval
had mistakenly told the Employer that it was required to use
the list. Sandoval further testified he did not say that he
might have made a mistake when he informed the Employer
that Durham had stated the Employer had to use the list.
Paiva testified he told Durham the Employer had no suc-
cess in using the list and asked Durham for a new list of
names or a revised list of names. He testified he did not re-
call anyone saying that it was not mandatory for the Em-
ployer to use the list or that the Employer had the discretion
to either use or not use the list. He testified that his best
recollection was that those comments were not made.
I reject Durham’s and Corrie’s and credit Sandoval’s and
Paiva’s testimony about the August 29 meeting and find that
on August 29 Durham did not indicate to Paiva that the Em-
ployer was not obligated to use the list of names provided
by Respondent, nor did he indicate to Paiva that Sandoval
must have misunderstood what Durham had stated about the
list, nor did Sandoval admit he might have misunderstood
what Durham told him about the list. Rather, I find that
when Paiva asked why Durham had not signed the list and
indicated that the Employer was not having much success in
using the list and asked Durham for a new list or a revised
list, that Durham did not indicate the list was simply for the
Employer to use or not to use as it saw fit, but stated he was
not responsible for the list which he said had been generated
by Respondent’s hiring hall. I have credited Sandoval’s and
Paiva’s testimony about this aspect of the meeting because
their testimonial demeanor, which was good, was better than
the testimonial demeanor of Durham and Corrie, which was
not so good. It is because of this that I find that it was not
until December 4 that Durham, shortly before the hearing in
this case, by letter to Paiva, for the first time indicated to
him that the Employer had misunderstood the purpose served
by the list, and for the first time stated to Paiva that the Em-
ployer was not obligated to use the list. Durham’s December
4 letter, reads as follows:
Dear Mr. Paiva:
It has been brought to my attention that there my
[sic] be some misunderstanding as to the purpose
served by the list provided to the company by Local
287 reflecting the names of individuals available to be
called to work on weekends.
In furnishing this list to the Company, the Union did
not intend that only these individuals could be called to
work at times when the Union’s Hiring Hall is closed.
Indeed Article 40, of the Agreement makes it clear that
the Employer may obtain workers from any source
when the Hall is closed.
By furnishing the list, the Union simply was pro-
viding you with information regarding qualified work-
ers who were willing to be called directly.
Apparently the Company has represented to the Na-
tional Labor Relations Board that it was instructed by
the Union not to call an individual by the name of Earl
Averette because his name was not on the list. The
Union has not given any such instruction to the Com-
pany, nor does the Union intend that Mr. Averette not
be called under circumstances set forth in Article 40, of
the Agreement.
To avoid any possible future misunderstandings, the
Union hereby rescinds the list previously given the
Company and confirms that the Company should follow
the procedures set forth in the above referenced con-
tractual provision. In doing so, however, the Union of
course reserves the right to file a grievance if the Com-
pany calls an individual to work on a weekend when
the Company knew, or should have known, of its need
for a casual worker by the close of business on the pre-
ceding Friday. Under such circumstances, the contract
clearly requires the Company to obtain workers from
the Hiring Hall lists.
B. Discussion
The complaint alleges that on or about April 3 Respond-
ent’s business agent Jerry Durham requested that the Em-
ployer hire and employ only the casual employees whose
names appeared on the list provided by the Respondent, and
that Charging Party Averette’s name was not among those
listed. The complaint further alleges that the Employer
agreed to comply with this request and that the parties subse-
quently maintained this agreement for an undetermined pe-
riod of time. Lastly, the complaint, as clarified by counsel
for the General Counsel during the hearing (Tr. 14–15, 403),
alleges that Respondent engaged in the aforesaid conduct be-
547TEAMSTERS LOCAL 287 (CONSOLIDATED FREIGHTWAYS)
18 To find that a labor organization has unlawfully interfered with an em-
ployee’s job status, it is sufficient if the employer’s action is reasonably attrib-
utable to the union’s conduct. In particular, the law is settled that ‘‘an express
demand or request is not essential to a violation of Sec. 8(b)(2) of the Act.’’
Northwestern Montana District Council of Carpenters (Glacier Park), 126
NLRB 889, 897 (1960). Rather, ‘‘[i]t suffices if any pressure or inducement
is used by the union to influence the employer.’’ Ibid. See also NLRB v. Jarka
Corp., 198 F.2d 618, 624 (3d Cir. 1952) (‘‘[T]he relationship of cause and
effect, the essential feature of Sec. 8(b)(2) can exist as well where an inducing
communication is in courteous terms or even predatory terms, as where it is
rude and demanding.’’); Yellow Freight System, 197 NLRB 979 (1972) (union
caused discharge of nonmembers by calling to employer’s attention that their
employment violated employer’s no-relatives rule).
cause of ‘‘Averette’s race and/or his perceived involvement
in an internal political dispute among the membership of Re-
spondent,’’ and that by engaging in this conduct Respondent
interfered with, restrained, and coerced Averette in the exer-
cise of his statutory rights within the meaning of Section
8(b)(1)(A) of the Act and attempted to cause and caused the
Employer to discriminate against him with respect to his em-
ployment within the meaning of Section 8(b)(2) of the Act.
In her posthearing brief, however, counsel for the General
Counsel states ‘‘although the complaint specifically alleges
race as one of the arbitrary and invidious reasons, there was
no evidence adduced at the hearing in support of such an al-
legation and the General Counsel no longer contends that Re-
spondent’s actions were based upon Averette’s race.’’ I agree
with counsel for the General Counsel’s evaluation of the evi-
dence. I therefore shall recommend the dismissal of the com-
plaint insofar as it alleges Respondent engaged in its alleged
misconduct because of Averette’s race. The remainder of the
complaint’s unfair labor practice allegations are meritorious
for the reasons below.
Late in March, at the request of Respondent’s Business
Agent Durham, the Employer agreed that when Respondent’s
hiring hall was closed the Employer would hire casual dock-
workers from a list of persons and their phone numbers pro-
vided by Durham. In this regard, as described in detail supra,
during the week ending March 31 Robert Sandoval, Re-
spondent’s president, and one of Respondent’s stewards at
the Employer’s terminal, was instructed by Durham, the
business agent responsible for administering Respondent’s
contract with the Employer, to give the Employer’s Oper-
ations Manager Sisneros a list of 21 names and telephone
numbers, entitled ‘‘NIGHT DOCK WORK (WHEN HALL
IS CLOSED).’’ Durham told Sandoval that those were the
persons the Employer should call if the Employer needed ad-
ditional casual dockworkers when the Respondent’s hiring
hall was closed. Later the same day Sandoval, following
Durham’s instruction, gave the list to Sisneros and advised
him that he had been instructed by Durham to give him the
list. In explaining the purpose of the list to Sisneros, and
later to Operations Supervisor Hall, Sandoval stated in effect
that the Employer was expected to use the list before calling
any other persons for casual dock work when the hiring hall
was closed. Sisneros replied, ‘‘If that’s what the Union
wants, that’s what we will do.’’ These circumstances reveal
that during the last week in March the Employer, at Re-
spondent’s request, agreed that when the Respondent’s hiring
hall was closed that the Employer would hire casual dock-
workers from the list of names and telephone numbers pro-
vided by Respondent.
The Employer and Respondent maintained and enforced
their agreement that the Employer would use the Respond-
ent’s list of names and telephone numbers, when hiring cas-
ual dockworkers if the Respondent’s hiring hall was closed.
In this regard, as described in detail supra, on April 3, at
Business Agent Durham’s request, the Employer’s Terminal
Manager Paiva implemented the parties’ agreement by dis-
charging three casual workers employed on the Sunday–
Monday shift and did this because their names were not in-
cluded on the list of names provided by Respondent. Subse-
quently, whenever the Employer needed to hire casual dock-
workers for the Sunday–Monday shift, when the Respond-
ent’s hiring hall was closed, the Employer’s operation super-
visor Hall used the list of names and telephone numbers pro-
vided by Respondent and only after Hall exhausted all of the
names on the list did he then use his own personal list of
names to contact persons for employment. It was not until
Durham’s December 4 letter to Paiva that Respondent in-
formed the Employer the list had been rescinded and the Em-
ployer no longer had to use the list for hiring casual dock-
workers when the hiring hall was closed. I have considered
that previously, on April 7, Respondent’s hiring hall dis-
patcher Blue informed Hall that the Employer did not have
to use the list because it was Respondent’s intent that the
only employers who would have to use the list were those
who continuously employed persons who were not members
of Respondent, and the Employer did not fall into that class
of employers. However, inasmuch as Business Agent Dur-
ham was responsible for administering the Employer’s con-
tract with Respondent and since it was Durham who initially
instructed the Employer to use the list and was the person
who, on April 3, complained to Terminal Manager Paiva that
Respondent had not used the list, Hall told Blue that he in-
tended to continue to use the list until the Employer received
word officially from Durham that it was not obligated to do
so. Not only did Durham fail to contact the Employer to con-
firm what Blue had stated to Hall, but on August 29, as de-
scribed in detail, supra, when Paiva complained to Durham
that the Employer was not having much success in using the
list and asked for a new or revised list, Durham did not indi-
cate to him that the Employer was not obligated to use the
list. It was not until December 4, shortly before the hearing
in this case, that Durham, by his letter to Paiva, specifically
rescinded the list and abrogated the parties’ agreement that
the Employer would use the list to call casual dockworkers
when the Respondent’s hiring hall was closed.
In maintaining and enforcing the above-described agree-
ment with the Employer the Respondent on April 3 caused
the Employer to terminate Averette’s employment.18 As de-
scribed in detail, supra, on the morning of Monday, April 3,
Business Agent Durham telephoned Terminal Manager Paiva
and told him that the Employer was currently employing
three persons on its Sunday–Monday shift, one of whom was
Averette, who were not active members of Respondent, and
told Paiva that Respondent intended to file a grievance
against the Employer for employing those three casuals in-
stead of three of the persons named on the list which had
been given to the Employer by Respondent the previous
week, and explained to Paiva that the Employer was obli-
gated to first employ the persons named on that list. On
April 3 Paiva promptly discharged Averette, prior to the end
of his workshift. Clearly, Respondent on April 3 caused the
Employer to terminate Averette’s employment and did so
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 When asked during the hearing whether he made any subsequent tele-
phone calls to Hall, Averette testified he may have made one other call some-
time in May or June but had no independent recollection of making such a
call.
20 Because this case presents a dual-motive situation, in analyzing Respond-
ent’s motivation, I shall be guided by the Board’s decisions in Wright Line,
251 NLRB 1083 (1980), and Limestone Apparel Corp., 255 NLRB 722
(1981). See, e.g., Painters Local 1140 (Harmon Contract), 292 NLRB 723
(1989); Toledo World Terminals, 289 NLRB 670 (1988); Auto Workers Local
2017 (Federal Mogul), 283 NLRB 799 fn. 1 (1987); Plasterers Local 121, 264
NLRB 192, 193 (1982). I also note that counsel for the General Counsel
makes no contention that even assuming the absence of discriminatory intent,
that Respondent violated the Act by departing from established hiring hall pro-
cedures when it insisted that the Employer agree to use the list of employees
in employing casual dockworkers when the hiring hall was closed, or other-
wise violated its duty of fair representation in connection with the institution
and maintenance of that list (Tr. 14–15, 403; see also G.C. Br. pp. 36–37).
pursuant to its enforcement of its above-described agreement
with the Employer.
In maintaining and enforcing the above-described agree-
ment with the Employer, the Respondent, subsequent to
April 3, caused the Employer not to reemploy Averette. The
Employer was extremely satisfied with his work performance
on the Sunday–Monday workshifts on March 19–20, March
26–27, and April 2–3, and during the normal course of busi-
ness would have continued to hire him for that workshift
thereafter, if it needed extra casual dockworkers when the
Respondent’s hiring hall was closed. However, on Sunday,
April 9, when Averette telephoned Operations Supervisor
Hall and asked whether there was work available for him on
the April 9 Sunday–Monday shift, Hall told him his name
was not on the list provided to the Employer by Respondent
and because of this Hall could not employ him, but informed
Averette that if Averette resolved the matter of his not being
on the list, that Hall would employ him. This circumstance
plus what Durham stated to Terminal Manager Paiva on
April 3, supra, make it perfectly clear that in maintaining and
enforcing its above-described agreement with the Employer,
Respondent caused the Employer not to reemploy Averette
on the Sunday–Monday shift subsequent to the April 2–3
shift. In so concluding I considered that during the weeks
which followed the April 9–10 Sunday–Monday shift, if Hall
needed to hire casual dockworkers for that shift when the
hiring hall was closed, he was on most of those occasions
unable to fill his needs using the list provided by Respond-
ent, so he frequently used his own personal list of names and
did this without objection from Respondent. However, on
those occasions he did not contact Averette to see whether
he was available for employment because he had mislaid his
telephone number. Respondent apparently contends that in
view of this it cannot be said to have caused the Employer
to have refused to reemploy Averette; that during the normal
course of business, even absent Respondent’s alleged unfair
labor practices, the Employer would not have continued to
employ Averette for the Sunday–Monday shift because it had
lost his telephone number. I disagree. As described in detail,
supra, it was Averette’s practice to personally telephone Hall
each Sunday to inquire about the availability of work on the
Sunday–Monday shift, rather than to wait for a phone call
from Hall. However, on Sunday, April 9, when Averette
phoned Hall to inquire about work and was told there was
no work available for him because his name was not on the
list provided by Respondent, Averette ceased calling Hall to
inquire about the availability of work.19 In other words, but
for Respondent’s alleged unfair labor practices Averette
would have most likely continued to follow his usual prac-
tice of calling Hall on Sunday to inquire about the avail-
ability of work on the Sunday–Monday shift, thus he would
have continued to secure employment even though Hall had
mislaid his telephone number.
Having found that during the last week in March, at the
request of Respondent’s Business Agent Durham, the Em-
ployer agreed to use a list of names and telephone numbers
provided by Durham if it needed to employ extra casual
dockworkers when Respondent’s hiring hall was closed, and
having further found that this list did not include Averette’s
name, and having found that pursuant to the aforesaid agree-
ment, that the Respondent caused the Employer to terminate
Averette’s employment on April 3 and to subsequently fail
and refuse to continue to employ him on the Employer’s
Sunday–Monday shift, the remaining question is whether Re-
spondent’s motive for engaging in this conduct was to cause
the Employer to cease employing Averette because, as con-
tended by counsel for the General Counsel, Respondent’s
business agent Durham believed Averette was supporting
candidates, whom Durham opposed, in an intraunion election
being conducted by Respondent. If so, as contended by the
General Counsel, Respondent violated Section 8(b)(1)(A) and
(2) of the Act because an employee’s involvement in
intraunion politics is protected by Section 7 of the Act. For
the reasons below, I am persuaded that Respondent’s above-
described conduct was discriminatorily motivated.20
I am persuaded that in securing the Employer’s agreement
to use the list of names and telephone numbers provided by
Business Agent Durham, if the Employer needed to employ
extra casual dockworkers when the Respondent’s hiring hall
was closed, and in causing the Employer to terminate and
cease employing Averette pursuant to that agreement, the Re-
spondent was motivated by Business Agent Durham’s belief
that Averette was supporting candidates, whose reelection
Durham opposed, in an intraunion election being conducted
by Respondent. The following factors, viewed in their total-
ity, support this inference.
As described in detail supra, during the time material Re-
spondent’s members were involved in an election campaign
concerning the election of Respondent’s officers and business
agents. Secretary-Treasurer Haas, President Sandoval, and
Business Agent Brooke supported one another in their bids
for reelection, whereas Business Agent Durham supported
former Secretary-Treasurer Gullo and the candidates he
backed.
Durham believed Averette had joined Respondent with the
intention of actively supporting Sandoval, Brooke, and Haas
in their bids for reelection. In this regard, as described in de-
tail supra, when Durham arrived at Respondent’s February
14 monthly membership meeting, in the midst of the commo-
tion which had disrupted the meeting, he observed Averette
participating with the sergeant at arms in the commotion and
assumed that because Averette was standing right next to the
sergeant at arms, that Averette was part of the sergeant at
arms’ staff. Durham learned from others at that meeting that
the commotion which had disrupted the meeting was caused
by a confrontation between former Secretary-Treasurer Gullo
and the sergeant at arms, and concluded that the commotion
involved a ‘‘political dispute’’ between Gullo and the ser-
geant at arms. I am of the opinion that because Durham be-
549TEAMSTERS LOCAL 287 (CONSOLIDATED FREIGHTWAYS)
lieved Averette was part of the sergeant at arms’ staff, he
also believed that Averette, like the sergeant at arms, was ac-
tively involved in the political dispute; that Averette, like the
sergeant at arms, was opposed to Gullo’s election and sup-
ported Sandoval, Brooke and Haas in their bids for reelec-
tion. This inference is bolstered by the fact that when Dur-
ham on February 14 confronted Averette and angrily ques-
tioned him about his presence at the meeting, that Averette
abruptly told him it was none of his business and stated that
he was there as President Sandoval’s guest. Moreover, if
there is any doubt that Durham believed Averette had joined
Respondent for the purpose of actively supporting Sandoval,
Brooke, and Haas in their bids for reelection, the doubt was
removed by dispatcher Blue’s March 13 admission to
Averette. On that day, immediately after Averette had joined
the Respondent, Blue told him that Blue was opposed to the
reelection of Sandoval and Brooke and criticized Sandoval’s
performance as president, and informed Averette that the
members of Respondent who supported the candidates cam-
paigning to defeat Sandoval and Brooke, which included
Durham, thought that Averette had joined Respondent to act
as an ‘‘enforcer’’ for Brooke and Brooke’s group. It is for
all the above reasons that I find Durham believed Averette
had joined the Respondent with the intention of actively sup-
porting Sandoval, Brooke, and Haas in their bids for reelec-
tion.
It was immediately after questioning Sandoval about
Averette’s employment with the Employer and about his
membership in Respondent, and objecting to his employment
by the Employer and his membership in Respondent, that
Durham requested and the Employer agreed that if the Em-
ployer hired casual dockworkers when the Respondent’s hir-
ing hall was closed, that the Employer would use a list of
names provided by Durham. As described in detail supra,
during the last week of March Durham questioned Sandoval
about Averette’s employment with the Employer and about
his membership in Respondent and informed Sandoval he
thought the Employer should not continue to employ
Averette and stated that Averette was not the type of a per-
son Respondent wanted as a member. It was at this time,
after Sandoval indicated he disagreed with Durham’s assess-
ment of Averette, that Durham handed to Sandoval a list of
names and phone numbers, which did not include Averette’s
name, and told Sandoval to take the list to the Employer for
the Employer to use when hiring casual dockworkers when
the Respondent’s hiring hall was closed.
Also relevant in evaluating Durham’s motivation for re-
questing that when the Employer needed to hire casual dock-
workers when Respondent’s hiring hall was closed, that it
hire them from the list of names provided by Durham, is the
fact that Durham was unable to settle on a reason for omit-
ting Averette’s name from the list. Thus, during the last
week of March, when Durham gave the list of names to
Sandoval to give to the Employer, he explained to Sandoval
that Averette’s name was not on the list because of his lack
of seniority. However, on April 3 when Durham explained
the list to Averette and Secretary-Treasurer Haas, he failed
to mention it was Averette’s lack of seniority that had kept
his name from being included on the list, but simply ex-
plained that the list had been put together by members of the
Respondent who had registered for work at the hiring hall
who had indicated they were willing to be called at home by
the Employer when the hiring hall was closed, and when
asked by Haas if he had any objection to Averette’s name
being added to the list, replied he had no objection whatso-
ever. Durham did not mention to Haas or Averette that
Averette’s lack of seniority precluded him from being in-
cluded on the list. Lastly, when he testified in this pro-
ceeding about the origin of the list and the contemplated use
of the list, Durham failed to mention that seniority had been
a factor in determining who, among Respondent’s members,
were eligible to be included on the list. Rather he testified
that those members of Respondent registered at Respondent’s
hiring hall, who had complained about not being called for
casual dock work by the Employer and who indicated they
were available for work when the hiring hall was closed, had
placed their names on the list, regardless of seniority. In
other words, as described supra, the record reveals that Dur-
ham proffered different and shifting reasons to justify the
omission of Averette’s name from the list, and that one of
those reasons—Averette’s lack of seniority—was false. These
circumstances lend strong support to the inference that Dur-
ham was discriminatorily motivated when he requested that
the Employer agree to use Durham’s list of names and tele-
phone numbers, if the Employer needed to employ casual
dockworkers when the Respondent’s hiring hall was closed.
Likewise, Durham’s failure to add Averette’s name to the
list of names and telephone numbers after having told
Averette he had no objection to this being done, lends further
support to the inference that Durham was discriminatorily
motivated when he had Sandoval transmit to the Employer
the list of names for the Employer to use in employing cas-
uals when Respondent’s hiring hall was closed. In this re-
gard, as described supra, in response to Averette’s complaint
that Durham had caused the Employer to terminate his em-
ployment, Durham on April 3 told Averette and Secretary-
Treasurer Haas that he had nothing against Averette’s name
being added to the list of names he had provided for the Em-
ployer when hiring casual dockworkers when the hiring hall
was closed. Averette responded by indicating that this would
remedy his complaint because with his name on the list he
felt that the Employer would continue to employ him as it
had done in the past. However, Respondent never notified
the Employer it could add Averette’s name to the list nor did
it ever transmit a revised list to the Employer which included
Averette’s name. Durham testified that his reason for not
adding Averette’s name to the list was that he assumed Haas
would do it, because Averette had expressed his complaint
to Haas and that Haas, even though he was the Respondent’s
chief executive officer, ‘‘got involved in everything.’’ I re-
ject Durham’s explanation because his testimonial demeanor
was poor and his explanation, when viewed in context, seems
incredible because: Durham was the person employed by Re-
spondent who was responsible for policing Respondent’s
contract with the Employer and it was his job to attempt to
resolve the grievances of the employees employed by the
Employer and it was Durham who had decided to present the
Employer with the list of names to use when it employed
casual dockworkers when the hiring hall was closed and it
was Durham who made sure that the Employer used the list;
Haas, on the other hand, had nothing to do with the prepara-
tion of the list or the decision to transmit the list to the Em-
ployer and knew nothing whatsoever about the list or its pur-
pose prior to Averette’s April 3 complaint. In view of these
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 The sole evidence that it was Haas’ habit to perform duties which his
business agents would ordinarily have been expected to perform is Durham’s
testimony that Haas ‘‘got involved in everything.’’ Durham offered no spe-
cifics to support this conclusion. In view of this and his poor testimonial de-
meanor I reject this testimony.
circumstances, it does not seem plausible that Durham would
have believed that Respondent’s Chief Executive Officer
would have performed the ministerial task of informing the
Employer that Respondent had no objection to its adding
Averette to the list of names provided to it by Durham, inas-
much as this would have been a job normally performed by
Durham as part of his usual duties. This and the lack of evi-
dence that in the past Haas had involved himself in merely
ministerial matters which his subordinate business agents
would normally be expected to perform, persuades me that
Durham’s explanation was not credible.21 Rather, I am per-
suaded that Durham’s failure to add Averette’s name to the
list, after having told Averette he had no objection to doing
so, supports the inference he was discriminatorily motivated
when he gave Sandoval the list for the Employer to use to
employ casual dockworkers when the Respondent’s hiring
hall was closed.
Lastly, the inference that Respondent was unlawfully moti-
vated when Durham decided to have the Employer use his
list of names and telephone numbers to call casual dock-
workers when the hiring hall was closed, is further supported
by the shifting and contradictory reasons advanced by Re-
spondent for preparing the list and having the Employer use
it. Initially, Durham gave the following testimony (Tr. 273–
276): He transmitted the list to the Employer through
Sandoval because of the complaints that the Employer was
violating the hiring provision of the Respondent’s contract
with the Employer by hiring people off of the street for the
Sunday–Monday shift, instead of hiring sufficient casuals on
Friday from the hiring hall; these complaints were expressed
to Durham on behalf of the complainants by dispatcher Blue
and then directly to Durham by the complainants themselves;
and, the names and telephone numbers on the list were of
the members registered for work at the hiring hall who had
been complaining to Blue and Durham about the Respond-
ent’s practice of not calling them to work for the Sunday–
Monday shift. However, later when asked why he submitted
the list of names and telephone numbers to the Employer,
Durham gave an entirely different reason; he testified that his
reason for submitting the list to the Employer was as follows
(Tr. 294): ‘‘because the operations manager at Consolidated
had been complaining to me that he could not get people to
fill those shifts [referring to the Sunday–Monday shift]. He
was complaining he could not get people out of the hall
and/or off the street. So we indicated to him that would pro-
vide a list as a courtesy for him to utilize.’’ Not only did
Durham give shifting and contradictory reasons to justify the
preparation and the submission of the list of names and tele-
phone numbers to the Employer, but dispatcher Blue, who,
supposedly prepared the list, gave yet another reason why
Respondent prepared it and submitted it to the Employer.
Blue’s reason contradicted both of Durham’s reasons. For, as
described supra, Blue told Operations Supervisor Hall that
the list had been mistakenly sent by Respondent to the Em-
ployer, that it had not been prepared for the Employer’s use,
but was prepared for the use of other employers who had the
practice of continually employing persons who were not
members of the Respondent, for casual dock work when the
Respondent’s hiring hall was closed.
Considering Durham was opposed to the reelection of
Sandoval, Brooke, and Haas, and believed Averette had
joined Respondent with the intention of actively supporting
them in their bids for reelection; considering it was imme-
diately following Durham’s interrogation of Sandoval about
Averette’s employment by the Employer and his membership
in the Respondent, and immediately following Durham’s ex-
pressed objection to Averette’s employment and membership,
that Durham gave Sandoval the list of names and telephone
numbers to transmit to the Employer to use to hire casual
dockworkers when the Respondent’s hiring hall was closed;
considering the different and shifting reasons advanced by
Durham for the omission of Averette’s name from the list;
considering that one of those reasons was false; considering
Durham’s failure to add Averette’s name to the list after hav-
ing assured Averette and Haas that he had no objection to
this being done; and, considering the shifting and contradic-
tory reasons advanced by the Respondent for preparing and
submitting the list to the Employer; I find the General Coun-
sel has established that in deciding to have the Employer use
the list of names to employ casual dockworkers when Re-
spondent’s hiring hall was closed and in causing the Em-
ployer to terminate and refuse to reemploy Averette because
his name was not on the list, that Durham was motivated by
his belief that Averette had joined the Respondent with the
intention of actively supporting the reelection of Brooke,
Sandoval, and Haas, rather than Durham and the candidates
whom Durham supported.
In reaching this conclusion I have considered that Durham
did not know Averette’s identity on February 14 when he
confronted Averette at the Respondent’s membership meet-
ing. However, I am persuaded that by Durham’s late March
conversation with Sandoval about Averette’s union member-
ship and employment with the Employer, that Durham had
learned that Averette and the stranger he observed and con-
fronted at the February 14 meeting were one and the same
and that Marty Franklin and Averette were one and the same.
I reject Durham’s testimony that he did not identify Averette
until the afternoon of April 3, when he met with him in
Haas’ office. Durham’s testimonial demeanor was poor. I
also find it incredible that after being abruptly told by
Averette to mind his own business, when Durham angrily
questioned Averette at the February 14 membership meeting,
that Durham did not investigate until he learned his identity.
That it is reasonable to infer he conducted such an investiga-
tion is warranted by the fact that, as far as Durham was con-
cerned: a complete stranger had told Durham to mind his
own business and told Durham he was at the meeting as
President Sandoval’s guest; this stranger had involved him-
self in a political dispute which had disrupted the meeting;
and, this stranger had no business even being at the meeting
since he was not a member of Respondent. Moreover, con-
trary to Durham’s testimony, the record reveals Durham had
definitely learned of Averette’s identity by late March, when,
as I have found supra, he questioned Sandoval about
Averette’s union membership and employment with the Em-
ployer and stated he did not feel Averette was the type of
person Respondent should accept into membership. Lastly, as
shown by dispatcher Blue’s March 13 comments to Averette,
it was apparently a commonly held belief by Blue, Durham,
551TEAMSTERS LOCAL 287 (CONSOLIDATED FREIGHTWAYS)
22 I have not, as urged by counsel for the General Counsel, drawn an ad-
verse inference from Respondent’s failure to call dispatcher Blue as a witness
to corroborate Durham’s testimony. Since Blue’s employment with Respondent
terminated several weeks prior to the hearing in this case, there is a serious
question of whether it would be appropriate for me to draw such an inference.
and other members of Respondent who opposed the reelec-
tion of Sandoval, Brooke, and Haas, that Averette had joined
the Respondent in order to actively campaign for their reelec-
tion. In this respect I also note that Blue, an admitted agent
of Respondent, together with Durham was responsible for the
Respondent providing the list of names and telephone num-
bers to the Employer, and that Blue knew Averette and
Marty Franklin were the same person because while Averette
on March 13 introduced himself to Blue as Marty Franklin,
he registered for work on Blue’s hiring hall register using his
legal name. It is for all the foregoing reasons that I reject
Durham’s testimony that it was not until the afternoon of
April 3 that he identified Averette. Rather, I find that by the
last week of March Durham knew Averette was the stranger
he had spoken to at the February 14 meeting and that he was
socially using the name of Marty Franklin.
Having concluded that the General Counsel has established
that Respondent caused the Employer to terminate Averette’s
employment on April 3 and thereafter caused the Employer
to refuse to reemploy him, and having also concluded that
the General Counsel has made a prima facie showing that
Respondent engaged in this conduct because of Business
Agent Durham’s belief that Averette was actively supporting
the reelection of candidates for union office that Durham op-
posed, the remaining question for decision is whether Re-
spondent established it would have caused the Employer to
terminate and refuse to reemploy Averette even absent Dur-
ham’s belief that Averette was supporting candidates for
union office whom Durham opposed. I find, for the reasons
below, that Respondent failed to rebut the General Counsel’s
prima facie case.
Respondent contends that even absent Durham’s belief that
Averette supported candidates for union office whom Dur-
ham opposed, Durham would have still complained to the
Employer about Averette’s employment because Durham be-
lieved that the Employer’s employment of Averette, and the
other casual dockworkers whom it employed on the Sunday–
Monday shift when the hiring hall was closed, violated the
hiring provision of the Respondent’s collective-bargaining
contract with the Employer. In support of this contention Re-
spondent relies entirely on the testimony of Durham which,
in all significant respects, was uncorroborated.22 Durham tes-
tified that his submission of the list of names and telephone
numbers to the Employer to use for the employment of cas-
ual dockworkers when the Respondent’s hiring hall was
closed had nothing to do with the Employer’s termination
and refusal to reemploy Averette, because the list was given
to the Employer several weeks before Averette went to work
for the Employer and the Employer was not obligated to use
the list inasmuch as it was provided by Durham just as a
courtesy. Durham further testified that prior to Friday, March
31, Joe Balteria, a member of Respondent who was reg-
istered for dock work at the Respondent’s hiring hall, com-
plained to him on more than one occasion that the Employer,
instead of using the hiring hall to employ casual dock-
workers, was hiring them directly off the street. According
to Durham, since Balteria was not able to supply the names
of any of the casual dockworkers whom the Employer was
hiring directly, Durham refused to investigate his complaints
but told him that when he was able to furnish Durham the
names of the persons whom the Employer was hiring di-
rectly, that he would then investigate. Durham testified that
subsequently, on Friday, March 31, Balteria came to him and
identified by name Earl Averette, Thornton Ohshaski, and
Gene Lopez as having been hired directly off the street by
the Employer to work on the Sunday–Monday shift, rather
than Balteria and others who were registered for casual dock
work at the Respondent’s hiring hall, and that Balteria asked
Durham to file a grievance on his behalf against the Em-
ployer. Durham testified it was at this point that he decided
to investigate Balteria’s complaint and decided to do so be-
cause Balteria had given him the names of the persons whom
the Employer had hired directly off the street to perform cas-
ual dock work on the Sunday–Monday shift. Durham further
testified that because of this he no longer believed Oper-
ations Manager Sisneros’ explanation for the Employer’s
practice of hiring so many persons off the street for the Sun-
day–Monday shift.
Durham’s account of what he did after deciding on Friday,
March 31, to investigate Balteria’s complaint, follows: On
Monday, April 3, on his way to work, he visited the Employ-
er’s terminal and looked at the employees’ timecards and, in
doing so, discovered that, as Balteria had stated, Averette,
Ohshaski, and Lopez were at that time employed as casual
dockworkers on the Sunday–Monday shift, even though they
had not been hired through the Respondent’s hiring hall;
Durham left the Employer’s terminal on April 3 and went to
Respondent’s hiring hall where his check of the hiring hall
records revealed that on Friday, March 31, the Employer had
asked the dispatcher to refer only 1 casual dockworker for
the Sunday–Monday shift, while asking for the referral of 13
extra truckdrivers for the morning of Monday, April 3. Dur-
ham testified he concluded that if the Employer knew on Fri-
day it would need 13 extra truckdrivers to make deliveries
on Monday, it must have also known on Friday that it would
need more than one extra casual dockworker for the Sunday–
Monday shift to prepare the freight for the Monday deliv-
eries, and because of this Durham testified he felt that the
Employer had waited until the hiring hall was closed to hire
the 3 additional dockworkers in order to get around the con-
tractual hiring provision which required it to hire through the
hiring hall when it was open. Lastly, as I have found supra,
on April 3 at approximately 8:30 a.m. Durham telephoned
Terminal Manager John Paiva and, according to Durham’s
testimony, told Paiva that in response to complaints that the
Employer was not hiring casual dockworkers from the Re-
spondent’s hiring hall, but was hiring them directly, he had
visited the Employer’s terminal that morning and discovered
this was true and that he intended to file a grievance against
the Employer on behalf of the complainants because he be-
lieved that the Employer was purposely attempting to cir-
cumvent the hiring provision of the parties’ contract. Durham
also testified that, as an afterthought, he also mentioned to
Paiva that when Respondent had previously experienced this
problem with the Employer, that as a courtesy Sandoval had
given the Employer’s operations manager a list of the names
of persons who were willing to be called for work by the
Employer at their homes. Durham testified that he told Paiva
the Respondent had asked that whenever the Employer need-
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 I also note that the record reveals that it is highly implausible that, as
Durham testified, his April 3 investigation was triggered by the ability of
Balteria to identify the three casuals whom the Employer had hired directly
off the street to work on the Sunday–Monday shift of April 2–3. Durham
ed additional casual dockworkers which the hiring hall could
not supply, that the Employer use this list and that Durham
felt the Employer was now trying to circumvent the hiring
hall by not using the list.
I reject Respondent’s contention that even absent Dur-
ham’s belief that Averette supported candidates for union of-
fice whom Durham opposed, Durham would have still com-
plained to the Employer about Averette’s employment be-
cause Durham believed that the Employer’s hire of Averette,
and the other casual dockworkers whom it hired for the Sun-
day–Monday shift when the hiring hall was closed, violated
the hiring provision of the Respondent’s contract with the
Employer. My reasons for rejecting this contention are as
follows.
Initially I note that, as I have previously indicated when
evaluating Durham’s testimony when it conflicted with the
testimony of other witnesses, his testimonial demeanor was
generally poor.
Durham’s testimony that it was several weeks prior to
April 3 that he gave the list of names and telephone numbers
to Sandoval to give to the Employer has been rejected pre-
viously. Also incredible is his testimony that the list was
given to the Employer as a courtesy and that the Employer
was not required by Durham to use the list to hire extra cas-
ual dockworkers when the Respondent’s hiring hall was
closed. This testimony does not square with Durham’s fur-
ther testimony that the reason he gave the list to the Em-
ployer was because the hiring hall registrants had complained
to dispatcher Blue and to Durham that the Employer was
violating the governing collective-bargaining contract by hir-
ing people directly off the street rather than using the hiring
hall to hire the complainants. It seems to me that the only
way that providing the list of the complainants’ names to the
Employer would remedy their complaint was if the Employer
was required by Durham to use the list when hiring casual
dockworkers when the hiring hall was closed. For Durham
to have allowed the Employer to use or not to use the list
at its discretion would not have remedied the hiring hall reg-
istrants’ complaint that the Employer was employing casuals
whom it hired directly, rather than employing hiring hall reg-
istrants to work on the Sunday–Monday workshift.
The unbelievable nature of Durham’s testimony that he
provided the Employer with the list as a courtesy, to use or
not to use at its discretion, and told this to Operations Man-
ager Sisneros at the time the list was provided to the Em-
ployer, is further shown by the following. Late in March,
when Durham gave the list to Sandoval to give to the Em-
ployer, Durham did not say that the list was being provided
to the Employer as a courtesy and that the Employer was not
required to use the list. Rather, as I have found supra, Dur-
ham informed Sandoval that the Employer should call the
persons named on the list if it needed additional casual dock-
workers when the hiring hall was closed. Subsequently, on
April 3, as I have found supra, Durham telephoned Terminal
Manager Paiva and complained to him that the Employer on
that date was employing three casual dockworkers rather
than those named on the list, and explained to Paiva that the
Employer was obligated to first employ the persons named
on the list which had been given to the Employer by Re-
spondent. Thereafter on August 29, as I have found supra,
when Paiva complained to Durham that the Employer was
not having much success in using the list of names, and
asked for a new or revised list, Durham did not indicate that
the Employer was not obligated to use the list. It was not
until December 4, shortly before the hearing in this case, as
described supra, that Durham by letter to Paiva specifically
rescinded the list and abrogated the parties’ agreement that
the Employer would use the list to hire casual dockworkers
when the hiring hall was closed. Durham’s December 4 letter
did not expressly or by implication state that when Durham
provided the list to the Employer, that Durham had told any-
one from the Employer that the list was being provided as
a courtesy and could be used or not used at the Employer’s
discretion.
I have previously rejected Durham’s testimony that the
principal thrust of his April 3 conversation with Paiva was
that he had discovered that the Employer, in violation of its
collective-bargaining contract with Respondent, had hired
casual dockworkers directly off the street, rather than from
Respondent’s hiring hall, and that in view of this discovery
he intended to file a grievance against the Employer, and that
it was only as an afterthought that he mentioned to Paiva that
the Respondent had previously provided a list of names for
the Employer to use in hiring casual dockworkers when the
hiring hall was closed. Rather, as I have found supra, the
principal thrust of Durham’s April 3 conversation with Paiva
was Durham’s statement that he intended to file a grievance
against the Employer because on its Sunday–Monday shift of
April 2–3 the Employer had employed three casual dock-
workers whose names were not on the list provided to the
Employer by Durham the previous week, and that Durham
explained to Paiva that the Employer was required to first
employ persons named on that list. This finding is further
supported by the timing of the conversation, coming as it did
hard on the heels of the Employer’s agreement with the Re-
spondent to use the list of names provided by Durham to hire
casual dockworkers when the Respondent’s hiring hall was
closed. It is also supported by the evidence that despite the
fact that Balteria and other hiring hall registrants had com-
plained to Durham several weeks previously about not being
hired by the Employer because the Employer was hiring cas-
ual dockworkers directly when the hiring hall was closed, it
was only immediately after the Employer agreed to use the
list of names provided by Durham to hire casuals when the
hiring hall was closed, that Durham investigated their com-
plaints. Durham’s testimony that he failed to investigate
these complaints prior to April 3 because the complainants
were unable to identify the names of the casual dockworkers
hired directly by the Employer, does not seem credible. Dur-
ham did not explain why his lack of knowledge of the identi-
ties of the casual dockworkers hired by the Employer di-
rectly, deterred him from investigating the complaints ex-
pressed by Balteria and the other complainants. Nor is such
a reason readily apparent. Quite the opposite, it is readily ap-
parent that by simply visiting the Employer’s premises early
on a Monday morning, as he did on April 3, Durham at any
time could have conducted the same type of investigation as
he conducted on April 3, without having advance knowledge
of the identities of the casuals whom were being directly em-
ployed by the Employer.23 It was only immediately after the
553TEAMSTERS LOCAL 287 (CONSOLIDATED FREIGHTWAYS)
failed to explain how Balteria on Friday, March 31, could have known the
names of these persons, when it was not until Sunday, April 2, that they were
hired.
24 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
Employer entered into and breached its agreement with the
Respondent to use Durham’s list or names, an agreement that
was motivated by Durham’s belief that Averette was engaged
in protected concerted activity, that Durham complained to
the Employer about Averette’s employment.
Based on the foregoing I find that Respondent has failed
to establish that even absent Durham’s belief that Averette
supported candidates for union office whom Durham op-
posed, that Durham would have complained to the Employer
about Averette’s employment because of a good-faith belief
that his employment violated the hiring hall provision of the
parties’ collective-bargaining contract. Rather I am persuaded
that this contention was advanced as a pretext to cover up
Durham’s real reason for complaining about Averette’s em-
ployment.
In finding that the General Counsel established that in pro-
viding the Employer with a list of names and telephone num-
bers to use to hire casual dockworkers when Respondent’s
hiring hall was closed, and in causing the Employer to termi-
nate and to refuse to reemploy Averette because his name
was not on the list, that Respondent was discriminatorily mo-
tivated, and in also finding that Respondent failed to estab-
lish it would have complained to the Respondent about
Averette’s employment, even absent Durham’s belief that
Averette was engaged in protected concerted activity, I con-
sidered that the list of names and telephone numbers omitted
not only Averette’s name, but the names of other casual
dockworkers whom the Employer had employed previously
on the Sunday–Monday shift, including the names of
Ohshaski and Lopez whom with Averette the Respondent
specifically requested that the Employer terminate on April
3. However, considering all the circumstances of this case,
I am persuaded that the omission of Ohshaski’s and Lopez’
names from the list, as well as the omission of the names
of others whom the Employer had previously employed on
the Sunday–Monday shift, was simply an incidental affect of
Respondent’s discriminatory objective in providing the list of
names, which was to cause the Employer to cease employing
Averette because of Durham’s belief that he was supporting
candidates whom Durham was opposing in an intraunion
election being conducted by the Respondent. In other words,
the Respondent’s omission of Lopez’ and Ohshaski’s names
from the list it provided to the Employer, thus causing the
Employer to discharge and cease employing them, is analo-
gous to those situations where employers have been found to
have discriminated against employees who have not engaged
in union or protected concerted activity in order to provide
an aura of legitimacy for the unlawful termination of another
employee who had been engaged in such activity.
CONCLUSION OF LAW
By causing the Employer to terminate Earl Averette on
April 3, 1989, and to subsequently fail and refuse to reem-
ploy him because of Respondent’s belief that Averette was
engaged in activity protected by Section 7 of the Act, the
Respondent has engaged in unfair labor practices affecting
commence within the meaning of Section 8(b)(2) and (1)(A)
of the Act.
THE REMEDY
Having found that Respondent violated Section 8(b)(2) and
(1)(A) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative actions designed to ef-
fectuate the policies of the Act.
I shall recommend that Respondent make Averette whole
for any loss of earnings that he may have suffered because
on April 3, 1989, Respondent unlawfully caused the Em-
ployer to terminate his employment and thereafter unlawfully
caused the Employer to fail and refuse to reemploy him on
its Sunday–Monday workshift. The loss of earnings shall be
computed in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in Florida
Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962).
Respondent’s backpay liability was not tolled by Business
Agent Durham’s December 4, 1989 letter to Terminal Man-
ager Paiva. It was not tolled because there is no evidence
that Respondent sent a copy of that letter to Averette or oth-
erwise notified Averette that Respondent did not object to his
being employed directly by the Employer for the Sunday–
Monday shift when the Respondent’s hiring hall was closed.
The necessity for the remedial order to require Respondent
to notify Averette that it did not object to the Employer hir-
ing him directly for employment on the Sunday–Monday
shift when the hiring hall was closed is readily apparent be-
cause, as I have found supra, but for Respondent’s unfair
labor practices Averette would have continued to follow his
usual procedure of telephoning Operations Supervisor Hall
on Sunday to inquire about the availability of work on the
Sunday–Monday shift, and therefore would have continued to
secure employment on that shift even though Hall subsequent
to April 9 mislaid his telephone number and for that reason
was unable to call him for work when Hall exhausted the list
of names provided by Respondent. In this regard, I note that
in determining whether Hall’s loss of Averette’s telephone
number would have resulted in Averette’s loss of employ-
ment, regardless of Respondent’s unfair labor practices, any
uncertainty must be resolved against the Respondent because
Respondent’s unlawful conduct caused the uncertainty. See,
e.g., Kawasaki Motors v. NLRB, 850 F.2d 524 (9th Cir.
1988). Here, absent Respondent’s unfair labor practices, it is
more than likely that Averette would have continued his past
practice of not waiting for Hall to telephone him on Sunday
but would have continued to call Hall each Sunday to inquire
about the availability of employment on the Sunday–Monday
shift.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended24
ORDER
The Respondent, Local Union No. 287, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, San Jose, California, its officers, rep-
resentatives, and agents, shall
1. Cease and desist from
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(a) Causing or attempting to cause the Employer to termi-
nate or refuse to employ Earl Averette, or any other em-
ployee, because it believes they have engaged in activity pro-
tected by Section 7 of the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Earl Averette whole for any loss of earnings he
may have suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of the de-
cision.
(b) Notify the Employer, in writing, with a copy furnished
to Earl Averette, that it has no objection to Averette’s em-
ployment and request the Employer to reemploy him, as
needed, on the Sunday–Monday shift.
(c) Remove from its files, and ask the Employer to remove
from the Employer’s files, any reference to the unlawful ter-
mination and unlawful refusal to reemploy Averette and no-
tify Averette, in writing, that it has done so and will not use
against him the unlawful termination and unlawful refusal to
reemploy him.
(d) Post at its business office copies of the attached notice
marked ‘‘Appendix.’’25 Copies of the notice on forms pro-
vided by the Regional Director for Region 32, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(e) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by the Employer at its San Jose,
California terminal, if willing, at all places where notices to
employees are customarily posted.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Consolidated
Freightways to terminate or refuse to employ Earl Averette,
or any other employee, because we believe they are engaging
in activity protected by Section 7 of the National Labor Rela-
tions Act.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL make Earl Averette whole for any loss of earn-
ings he may have suffered as a result of the discrimination
against him, plus interest.
WE WILL notify Consolidated Freightways, in writing, with
a copy furnished to Earl Averette, that we have no objection
to his reemployment and WE WILL request Consolidated
Freightways to reemploy him, as needed, on the Sunday–
Monday workshift.
We will remove from our files, and ask Consolidated
Freightways to remove from its files, any reference to
Averette’s unlawful termination and the subsequent unlawful
refusal to reemploy him and WE WILL notify Averette, in
writing, that we have done so and that the discharge and re-
fusal to reemploy him will not be used against him in any
way.
LOCAL UNION NO. 287, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL–CIO