Teamsters Local 299 (McLean Trucking)

National Labor Relations Board - Board Decisions

Jun 19, 1984

270 N.L.R.B. 1250 (N.L.R.B. 1984)

TEAMSTERS LOCAL 299 (MCLEAN TRUCKING)
Local 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America (McLean Trucking Co.) and Gerald A.
LaBond. Case 7-CB-4840
19 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 2 November 1983 Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief
and a cross-exception.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge's rulings, findings,I and
conclusions as modified and to adopt the recom-
mended Order.
The judge concluded that the Respondent violat-
ed Section 8(b)(l)(A) of the Act by failing to fairly
represent its members employed by McLean
Trucking Co. at its Detroit, Michigan terminal. We
agree, but only for the following reasons.
The Respondent has represented McLean's em-
ployees at the Detroit facility for many years.
During the period relevant to this case, the em-
ployees were covered by the Teamsters National
Master Freight Agreement and local supplements,
effective from 1 April 1979 through 31 March
1982. That contract contained a no-strike provision
which prohibited, with certain exceptions not rele-
vant here, work stoppages authorized by the
Union. In addition, the no-strike provision provid-
ed that no work stoppages would be considered to
have been authorized by the Union unless (1) the
Employer notified the Union by telegram that a
work stoppage had taken place, and (2) the Union
did not respond to the telegram. In other words,
work stoppages would be deemed unauthorized if
the Union did not respond to the Employer's tele-
graphic notification that a work stoppage was
taking place. Also pursuant to the no-strike provi-
sion, employees participating in an unauthorized
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The Respondent's request for oral argument is hereby denied as the
record, the exceptions, and the briefs adequately present the issues and
the positions of the parties.
270 NLRB No. 188
work stoppage lasting 24 hours or less could be
subject to suspension by the Employer for up to 30
days with no recourse to the grievance procedure.
Employees participating in longer unauthorized
work stoppages were subject to discharge, again
with no grievance rights.
In September 1979 the Employer assigned a new
terminal manager, Phillip Jennings, to the Detroit
facility, and instructed him to improve the termi-
nal's profitability. Jennings' early efforts in that
regard included a tightening of the enforcement of
work rules which led to some suspensions, dis-
charges, and grievances. In late 1979 Jennings dis-
cussed with the Respondent's business agent
George Langkil and the steward Murray Duncan
the possibility of eliminating the positions, or
"bids," then scheduled for the 7 a.m. to 3:30 p.m.
shift, but no immediate action was taken.
On 18 March 19802 Jennings had a meeting with
the employees, at the request of Langkil and
Duncan, at which employees expressed their con-
cerns and displeasure regarding the possibility of
Jennings' eliminating the three 7 a.m. to 3:30 p.m.,
or "day-dock," bids, his enforcement of certain
work rules, and other matters. The employees who
were scheduled to work during the meeting were
paid by the Employer for the 2 hours the meeting
lasted, and midnight shift employees who stayed at
the terminal beyond their normal quitting time to
attend the meeting were paid overtime. The fol-
lowing day, Jennings announced that 10 employees
would be laid off and the "day-dock" bids would
be eliminated as of 24 March. 3 Thereafter, employ-
ees who were not to be laid off were informed that
they could bump to another bid according to their
seniority and, on 21 March, Jennings posted the
new starting times for the affected employees.
According to the credited evidence, on 24
March the three employees whose "day-dock" bids
had been eliminated, along with Duncan, Langkil,
and at least three other business agents, came to
the timeclock area at 7 a.m. Langkil asked Jen-
nings, who met the men at the timeclock, for the
three employees' timecards, and Jennings refused.
Langkil announced that the Union was going to
have a meeting, and Jennings replied that no meet-
ing could take place at that time. The business
agents nevertheless told the employees when they
arrived to go to the breakroom because a meeting
was taking place. At 8 a.m. an automatic buzzer
sounded, signaling the start of a work shift, and
Jennings had the dispatcher announce the start of
2 Hereinafter all dates are 1980.
3 The contract provided that the Employer could change the bids only
on I November and I April of each year unless a layoff occurred, in
which case bids could be changed when the layoff took effect.
1250
TEAMSTERS LOCAL 299 (MCLEAN TRUCKING)
the shift over the public address system. Jennings
then went to the breakroom and told the employ-
ees there he expected everyone to start working.
Jennings then told Langkil once more that no
meeting would take place, and Langkil said no one
would work until the "day-dock" bids were reinsti-
tuted. At 8:30, when another shift was scheduled to
begin, another public address announcement was
made, Jennings told Langkil he wanted the em-
ployees to begin working, and Langkil again said
that no one would work until the three former
"day-dock" employees were given back their bids.
At 10 a.m., pursuant to the no-strike provision
described above, Jennings sent mailgrams to the
Respondent's International president, the chairman
of the Central Conference of Teamsters, and the
Local president, Bob Lins, which asked whether
the work stoppage was authorized. Jennings then
informed Langkil of this fact and read the no-strike
provision of the contract to him. The Employer re-
ceived no response to the mailgrams. At or about 3
p.m., Lins came to the terminal and told Jennings
that no one would work until "I . . . tell you how
the bids are going to be." That night, during a
meeting held at the union hall at or about 10 p.m.,
Lins told the employees that the midnight shift
should report to work on time, and said, "You can
stay out 23 hours and 59 minutes, and they can't do
anything to you." The employees returned to work
on the midnight shift. Subsequently, the Employer,
pursuant to the contract, suspended for 30 days the
employees who did not work on 24 March.
As noted, the judge concluded that the Respond-
ent violated Section 8(b)(1)(A) of the Act by its ac-
tions of 24 March. He found that the Union insti-
gated and caused a work stoppage in violation of
the contract without informing the employees that
the work stoppage violated the contract or that the
violation subjected them to disciplinary action. The
judge further found that by causing the work stop-
page the Union used the majority of the unit em-
ployees as leverage and placed the interests of the
three "day-dock" employees above those of the
other unit employees. Noting that the Supreme
Court in Ford Motor Co. v. Huffman4 defined a
union's duty of fair representation as requiring
"complete good faith and honesty of purpose in the
exercise of its discretion," and that pursuant to
cases such as Miranda Fuel Co. 6 and Vaca v. Sipes6
unions have a fiduciary duty to the employees they
represent, the judge found that the Respondent had
a duty in this case, which it failed to meet, "to
make sure the employees were aware of the possi-
4 345 U.S. 330, 338 (1953).
140 NLRB 181 (1962), enf denied 326 F.2d 172 (2d Cir. 1963).
6 386 U.S. 171 (1967).
ble consequences of their action and extend to
them a choice." While we agree with the judge's
conclusion that, under the standards of the cases
cited by him, the Respondent violated its duty of
fair representation owed to the employees who
were suspended for 30 days, we do so for the rea-
sons set forth below.
The Respondent's position communicated to the
employees on 24 March, to the judge at the hear-
ing, and to the Board in its exceptions is that the
events of 24 March constituted a meeting which
the Employer agreed to allow, similar to the meet-
ing of 18 March, and not a work stoppage within
the meaning of the contract. The credited evidence
and all the circumstances surrounding that day's
events, however, clearly show that the Union's po-
sition never was taken in good faith. The only evi-
dence that Jennings agreed to a meeting is the dis-
credited testimony of the Respondent's agents. The
credited evidence shows not only that Jennings re-
fused to permit a meeting, but also that Langkil
and Lins told Jennings the employees would return
to work if Jennings agreed to the Union's demand
regarding the "day-dock" bids. Further, in addition
to sending the telegrams required by the no-strike
clause, Jennings read to the union agents the con-
tract language which expressly provided that em-
ployees engaging in an unauthorized work stop-
page could be suspended for 30 days if the stop-
page lasted 24 hours or less, or discharged if the
stoppage lasted longer. Additionally, Lins' later
statement to employees that they could not be dis-
ciplined if they refused to work "23 hours and 59
minutes" shows that the Respondent was well
aware of the contractual provision governing its
actions and establishes that the Union continued to
mislead the employees concerning the conse-
quences of those actions even while the Union was
ending the "unauthorized" work stoppage. These
facts belie the Union's assertion that it had a good-
faith belief that its actions on 24 March merely
amounted to the holding of a union meeting.
Rather, it is clear from the foregoing that the
record establishes that the Union was encouraging
the employees it represented to withhold their
services in order to pressure the Employer into
changing working conditions. No one familiar with
labor relations could consider the Union's actions
to be anything but a work stoppage.
We further find that in the circumstances of this
case the Union's conduct was arbitrary. Thus, pur-
suant to the contract, the Union had absolute con-
trol over whether a work stoppage would be con-
sidered unauthorized and, consequently, whether
the participating employees would be subject to
severe discipline. By failing to respond to the Em-
1251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer's telegram, the Union exercised this control
in a way that placed most of the unit employes in
jeopardy of discipline. Although the Union's goal
of advancing the interests of the three "day-dock"
workers undoubtedly was a legitimate one, it was
not free while pursuing that goal to encourage the
employees to violate the contract. As a result of
the Union's entire course of conduct the employees
to whom it owed a duty of fair representation were
placed in the difficult position of having to decide
whether to return to work, as requested by their
terminal manager, or obey their collective-bargain-
ing agent's instructions to report to the breakroom
for a meeting. Regardless of whether the employ-
ees believed the events of 24 March constituted a
meeting or a work stoppage, they had the right to
expect that the union would not encourage them to
violate the contract in a way that would expose
them to a loss of income or even of employment.
The Union did precisely that. Accordingly, we
conclude that the Union's conduct can only be
considered to have been arbitrary, in total disre-
gard of the no-strike provision of the contract
which repeatedly was brought to its attention by
the Employer, and of the consequences of its ac-
tions on the employees.
Based on the foregoing, we conclude that the
Respondent's conduct on 24 March fell far short of
the requirement that a union act with respect to the
employees it represents in complete good faith and
honesty and that the Respondent's actions were ar-
bitrary. Accordingly, we find that the Respondent
breached the duty of fair representation owed by it
to the employees it represents, and thereby violated
Section 8(b)(1)(A) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Local 299,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, De-
troit, Michigan, its officers, agents, and representa-
tives, shall take the action set forth in the Order.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. Upon a
charge filed on July 7, 1980,1 by Gerald A. LaBond, a
complaint was issued July 16, 1981, alleging that the
Union described above violated Section 8(b)(1)(A) of the
National Labor Relations Act (the Act) by instigating
and causing a work stoppage at the facility of McLean
Trucking Co. in violation of the no-strike clause in the
All dates are in 1980 unless stated otherwise.
current collective-bargaining agreement without accu-
rately informing its members, employees of McLean, of
the Employer's right to subject the employee-members
to discipline for such conduct, and thereby violated and
failed in its duty of representation to said employees. Re-
spondent denies the allegations.
A hearing was held in Detroit, Michigan, on May 16-
18, 1983. On the entire record in this case, including my
observation of the demeanor of the witnesses and consid-
eration of the briefs filed in August 1983 by the General
Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
McLean, a North Carolina corporation, maintains a
motor carrier terminal in Detroit. The complaint alleges,
Respondent admits, and I find that at all times material
herein McLean has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Respondent Union has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
Phillip Jennings became terminal manager of
McLean's Detroit facility in September 1979. Before re-
ceiving the assignment, Jennings was advised by District
Manager Ron Williams that the Detroit operation was
unprofitable and that Jennings should take steps to make
it profitable. Shortly after he arrived at the terminal, Jen-
nings issued numerous written warnings and reprimands
to his subordinates. Also, Jennings instituted a new
policy whereby a supervisor would write down when an
employee went into the lunchroom and when that em-
ployee returned to his work station. While Jennings'
predecessor allowed 3 minutes washup time at lunch and
5 minutes washup time at the end of the shift, Jennings
terminated this practice writing up recalcitrant employ-
ees for "stealing time." Specified employees were fired
for this alleged dishonesty. Grievances were filed. And
the employees returned to work with their time off con-
sidered disciplinary time.
According to the testimony of Jennings, business con-
ditions worsened in late 1979, which in turn necessitated
a reduction in the number of people working on
McLean's day-time shift, 7 a.m. to 3:30 p.m. More specif-
ically, Jennings decided to eliminate three "day-dock"
positions and use the three men and their bids at a differ-
ent time of the day. Jennings discussed this matter with
Respondent's business agent George Langkil and union
steward Murray Duncan, both of whom disagreed with
Jennings. The matter was then dropped. Subsequently,
Jennings decided to make the change and posted it on a
bulletin board. Pursuant to the change, two of the in-
volved bids were to begin working at midnight and the
remaining bid was to begin working in the afternoon.
Langkil and Duncan discussed the posting with Jennings,
and as a result Jennings decided not to make the change.
Nonetheless, Jennings advised Langkil and Duncan that
1252
TEAMSTERS LOCAL 299 (MCLEAN TRUCKING)
if it became necessary to lay off employees in the future
these three bids would be eliminated. Business conditions
continued to deteriorate and Jennings was pressured by
his superior to reduce the work force accordingly.
About the second week in March, Jennings decided to
lay off 10 employees and, in doing so, eliminated 10 bids.
Three of the bids to be eliminated were the "day-dock"
positions. The three men holding these positions were
not going to be laid off because of their seniority, but
they would have to bid on other positions.
Before this decision was implemented, however, Lang-
kil and Duncan visited with Jennings in his office re-
questing that Jennings hold a meeting so that the em-
ployees could voice some of their grievances. The re-
quest was made on Tuesday morning, March 18. Jen-
nings agreed and immediately he called the dock office
supervisor and told him that there was going to be a
meeting and to instruct the employees to report to the
breakroom. The meeting began at 8 a.m. and lasted for 2
hours. Approximately 40 employees attended. They were
paid for their time, with midnight shift employees receiv-
ing overtime. The meeting was a general gripe session,
and matters discussed included the elimination of the
three "day-dock" jobs, McLean's use of "casuals" (non-
union workers who do not have any seniority and work
on an on-call basis) and the reasons for the writeups. The
employees were not aware this time, however, of Jen-
nings' planned layoffs.
Fifty-one of McLean's employees filed a grievance on
March 18 after the meeting alleging, among other things,
that "[t]he Company informed us today that as of the
next job bid, which goes into effect May 1, 1980 there
would be no day-dock jobs." (R. Exh. 4.) Actually, bids
are made every 6 months, effective on November 1 and
April 1, and normally cannot be broken during the 6-
month period, except for a layoff.
On March 19 Jennings posted a "BID REDUCTION
DUE TO LAYOFF" memorandum. (R. Exh. 3.) As in-
dicated therein, the three "day-dock" jobs were to be
eliminated I minute before midnight March 23. Affected
employees who were not laid off were advised in the
memorandum that they could bump to another bid in
line with their seniority.
On Friday, March 21, Jennings posted a list setting
forth the starting times for all employees effective
Monday, March 24.
Six witnesses testified regarding the events of March
24. The following four were called by the General
Counsel: Jennings and three individuals who were em-
ployed at McLean's Detroit terminal on March 24,
namely, (1) Sharon La Dosz, who was the afternoon
cashier, (2) James Eggleston, a driver, and (3) Laurene
(Ayers) Lewis, who was a general office employee. And
two were called by Respondent, viz., Duncan and John
Burge, who on March 24 was a business agent for Re-
spondent.
Jennings arrived at the terminal early on March 24 be-
cause he was concerned about the changes which
became effective on that date. He "pulled" the timecards
of the three employees whose "day-dock" bids had been
eliminated, Robert Francis, John Colwell, and Robert
Axt, so that if they showed up at 7 a.m. they would not
be able to "punch in" for their former shift. These em-
ployees did show up for work at 7 a.m, accompanied by
Duncan, Langkil, Burge, and at least two other business
agents of Respondent, namely, Basil Westphal and Steve
Howard.2 Langkil asked Jennings, both of whom were
standing in the timeclock area, for the three timecards.
Jennings refused advising Langkill that the three would
work only the bids posted on March 21. Jennings then
started to leave the area walking toward his office.
Langkil indicated that he was going to conduct an in-
spection of the terminal. Jennings protested pointing out,
as pertinent, that since it was Monday he did not have
the time.3 Jennings, Langkil, and Burge walked out on
the dock. Langkil approached some of McLean's casuals
and told one to go home and not to come back. Jennings
told Langkil he could not "run off" the casuals and Jen-
nings asked where did all the employees go. Langkil
said: "We are going to hold a meeting." Jennings refused
pointing out that it was Monday and he did not have the
time for a meeting. The group then went to Jennings'
office where he again refused to allow a meeting. Lang-
kil advised Jennings that no one was going to work until
Jennings reinstated the three "day-dock" positions.
Duncan testified that when Langkil said: "We are going
to have a meeting" Duncan "walked out and got the
people on the dock."
As employees showed up for the 8 o'clock shift, they
were advised by Duncan to go to the breakroom. A
buzzer connected to the timeclock went off automatical-
ly signaling the beginning of the 8 a.m. shift but no one
began to work. Jennings had the dispatcher announce
"Eight o'clockers" on the public address (PA) system in
the dock breakroom, which employees knew to mean
that "it's time to go to work." Lewis testified that she
was in the office breakroom and heard the PA announce-
ment regarding the start of the shift which she thought
was silly because the employees were not going to work.
Eggleston testified that he "punched in" about 8 a.m.
When he later asked Langkil when were the employees
going to work, Langkil said: "As soon as the Company
has a meeting with us." When the employees did not go
to work, Jennings entered the dock breakroom at about
8:05 a.m. and said: "I expect everybody that's supposed
to be working or supposed to start to work at 8 o'clock
to go now."
2 Duncan believed there were six or seven business agents of Respond-
ent present. Burge estimated that there were at least four conceding that
he had a bad memory and it was possible that there were more.
a Duncan's and Burge's testimony that Jennings agreed to a meeting
before Langkil stated that he was going to conduct an inspection is not
credited. Duncan changed his testimony on the witness stand and he con-
ceded that his recollection of this matter while testifying was not consist-
ent with his recollection when he gave an affidavit to the Board. Burge's
testimony on what was allegedly said on this matter was not in agree-
ment with Duncan's testimony and Burge also changed his testimony on
cross-examination. Moreover, in an attempt to explain why an inspection
was conducted if Jennings had already agreed to a meeting, Burge testi-
fied that "[wlhat we were trying to create was the dialogue for the meet-
ing and set the whole stage that we were going to go into." Later Burge
testified that all that was requested of Jennings was that he reinstate the
three "day-dock" positions. There is no question but that the Union has
the right to conduct an inspection. But this action on March 24 was noth-
ing more than a continuation of the Union's attempt to intimidate Jen-
nings.
1253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jennings then went to the conference room and told
Langkil, "I don't know whether you're trying to go on
strike or what you're trying to do, but I want the em-
ployees to go to work immediately." Langkil replied:
"We're not going on strike; we're simply having a meet-
ing." Jennings then said: "I told you you could not have
a meeting. We're not having a meeting today, and I
expect those employee to go to work immediately."
Langkil replied that no one was going to work until Jen-
nings put the three "day-dock" employees to work.
At 8:30 a.m. another shift was scheduled to begin and
Jennings instructed his dispatcher to repeat the above-de-
scribed procedure. When the employees did not go to
work, Jennings advised Langkil that Jennings wanted
them to go to work. Jennings then advised Langkil that
if the situation continued he would have no choice but to
report it to his home office and his district manager.
Langkil again advised Jennings that no one would work
until the three "day-dock" employees were allowed to
work. Consequently, Jennings called his district manager.
About 10 a.m. Jennings sent a number of mailgrams
under the name of C. R. Jones, vice president labor rela-
tions. (G.C. Exh. 4.) Two mailgrams were sent to each
of the following: (a) Frank Fitzsimmons, president of
International Brotherhood of Teamsters, (b) Roy Wil-
liams, chairman of Central Conference of Teamsters, (c)
Neal Dalton, Teamsters conference office, and (d) Bob
Lins, president Teamsters Local 299. The first set asked
whether the strike at the terminal was authorized by the
International, the conference, and the local. Shortly
thereafter, on the advice of his home office, Jennings
sent a second set of mailgrams to the above-described re-
cipients substituting "work stoppage" for "strike" and
stating that "THIS WORK STOPPAGE IS BEING
CREATED BY LOCAL 299 BUSINESS AGENTS
KEEPING OUR PEOPLE FROM WORKING
WHICH IS CONTRARY TO THE CONTRACT."
Jennings never received a response to any of the above-
described telegrams.
Then, pursuant to the advice of the home office, Jen-
nings told Langkil: "I have sent the telegrams. The Com-
pany knows that we have a work stoppage here, or a
strike, or whatever you're calling it." But once again
Langkil advised Jennings that no one would work until
the three "day-dock" jobs were put back.
Subsequently, again pursuant to the advice of his home
office, Jennings read article 8, section 2(b) of the con-
tract, General Counsel's Exhibit 2(a), which, according
to the testimony of Jennings:
. . .provides that in the event of an unauthorized
work stoppage, that those employees involved less
than 24 hours can receive up to thirty day's suspen-
sion without pay, and those that are involved in a
work stoppage in excess of 24 hours can be dis-
charged. 4
Pertinent portions of the agreement read as follows:
Section 2. (a) Work Stoppages . . . except as specifically provided
in other Articles of the National Master Freight Agreement, no
work stoppage, slowdown, walkout or lockout shall be deemed to be
permitted or authorized by this Agreement except:
Jennings testified that after reading article 8, section
2(b) he told Langkil that he was going into the break-
room and talk to the employees and Langkil "was free to
come along"; that Langkil declined; that he went into
the breakroom and
I told those-this was approximately 9:15, 9:30
somewhere along there .... That I considered
them being involved in a work stoppage at this
(I) failure to comply with a duly adopted majority decision of a
grievance committee established by the National Master Freight
Agreement or Supplemental Agreement.
(2) a National Grievance Committee deadlock of a grievance ren-
dered pursuant to the procedures provided herein;
(3) failure to make health and welfare and pension payments in the
manner required by the applicable Supplemental Agreement; and
(4) refusal to pay the negotiated hourly and mileage increases pro-
vided by this Agreement, Supplements and Riders thereto. Bona fide
disputes concerning such matters shall be presented to the grievance
procedure. Bona fide disputes shall not include an inability to pay.
. The Local Union shall not authorize any work stoppage, slow-
down, walkout, or cessation of work in violation of this Agreement.
It is further agreed that in all cases of an unauthorized strike, slow-
down, walkout, or any unauthorized cessation of work which is in
violation of this Agreement the Union shall not be liable for damages
resulting from such unauthorized acts of its members. In the event of
a work stoppage, slowdown, walkout or cessation of work, not per-
mitted by the provisions of Article 8, Section 2(a), alleged to be in
violation of this Agreement, the Employer shall immediately send a
wire to the appropriate Area Conference to determine if such strike,
etc., is authorized.
No strike, slowdown, walkout or cessation of work alleged to be
in violation of this Agreement shall be deemed to be authorized
unless notification thereof by telegram has been received by the Em-
ployer and Local Union from such Area Conference. If no response
is received by the Employer within twenty-four (24) hours after re-
quest, excluding Saturday, Sunday and holidays, such strike, etc.
shall be deemed to be unauthorized by the Area Conference for the
purpose of this Agreement.
In the event of such unauthorized work stoppage or picket line,
etc., in violation of this Agreement, the Local Union shall immedi-
ately make every effort to persuade the employees to commence the
full performance of their duties and shall immediately inform the em-
ployees that the work stoppage and/or picket line is unauthorized
and in violation of this Agreement. The question of whether employ-
ees who refuse to work during such unauthorized work stoppages, in
violation of this Agreement, or who fail to cross unauthorized picket
lines at their Employer's premises, shall be considered as participat-
ing in an unauthorized work stoppage in violation of this Agreement
may be submitted to the grievance procedure, but not the amount of
suspensions herein referred to. It is specifically understood and
agreed that the Employer, during the first twenty-four (24) hour
period of such unauthorized work stoppage in violation of this
Agreement, shall have the sole and complete right of reasonable dis-
cipline, including suspension from employment, up to and including
thirty (30) days, but short of discharge, and such employees shall not
be entitled to or have any recourse to the grievance procedure. In
addition, it is agreed between the parties that if any employee repeats
any such unauthorized strike, etc., in violation of this Agreement,
during the term of this Agreement, the Employer shall have the
right to further discipline or discharge such employee without re-
course for such repetition. After the first twenty-four (24) hour
period of an unauthorized stoppage in violation of this Agreement,
and if such stoppage continues, the Employer shall have the sole and
complete right to immediately further discipline or discharge any
employee participating in any unauthorized strike, slowdown, walk-
out, or any other cessation of work in violation of this Agreement,
and such employees shall not be entitled to or have any recourse to
the grievance procedure. The suspension or discharge herein re-
ferred to shall be uniformly applied to all employees participating in
such unauthorized activity. The Employer shall have the sole right
to schedule the employee's period of suspension.
1254
TEAMSTERS LOCAL 299 (MCLEAN TRUCKING)
point, and that they were expected to go back to
work immediately and their failure to go back to
work would result in disciplinary action, as provid-
ed under Article 8, and that they could be given 30
day's suspension or discharged. And I told them I
expected them to return to work immediately. And
I left there and went into the office breakroom and
did the same thing. And then I proceeded into the
conference room where George Langkil was and
told him the same thing, what I had just told those
employees[;]
and that Langkil asserted that Jennings could not do that
saying, "This is not a strike, this is not a work stoppage.
This is a meeting." Eggleston testified that he arrived at
the terminal around 8 a.m. and that a couple of hours
later Jennings came into the drivers' breakroom and said
only that there was work available. Lewis testified that
sometime before lunch Jennings came into the office
breakroom and said "that there was work to be done out
in the office, and that we were welcome to go back to
our desks and start working"; that the union business
agent who was present, along with Duncan, when Jen-
nings spoke, told Jennings that there was a union meet-
ing and Jennings left; and that either before Jennings
came in or after he left the union business agent told the
employees in the office breakroom that "we were having
a union meeting to protest the elimination of the day-
dock worker shift." Duncan testified that during March
24 Jennings never said anyone would be disciplined. Jen-
nings' above-described testimony regarding his warnings
of possible disciplinary action is not credited. Not only is
there a sequencing problem with the testimony, but the
General Counsel did not call any employee to corrobo-
rate Jennings on this point, even after two employees the
General Counsel did call testified that Jennings did little
more than in effect, invite them to work. Intimidation
was the Union's tactic and it was successful with respect
to Jennings. That day Jennings did not really tell union
business agents or unit employees what to do; he, in
effect, asked." While the home office may have instruct-
ed him to read article 8, section 2(b), and warn the em-
ployees of possible discipline, in my opinion, Jennings
complied with only the first half of this directive.
About 3 p.m. Lins arrived at the terminal and met
with Jennings. It was Lins' position that Jennings should
reinstate the three "day-dock" bids otherwise he was
"violating the contract . . . [since assertedly he could
not make] this change without the normal bid procedure
at the normal bid time, which is April Ist." Jennings
again refused pointing out that he had laid off 10 people
and, therefore, he could eliminate the same number of
bids. Later Lins advised Jennings that there would be a
union meeting that night and "we'll let you know tomor-
row what your bids are going to be like." Also, Lins
stated: "Nobody will be going back to work until I get
5 Burge testified that Langkil, on Friday March 21, asked Burge to
"aid ... or assist him at McLean ... on Monday morning. The conver-
sation was one that there was a volatile situation, inasmuch as some
people wanted to punch in and he felt he needed some assistance there."
For reasons more fully described infra, it would appear that there was
reason for Jennings to be intimidated.
back with you tomorrow morning to tell you how the
bids are going to be." Burge's testimony that Jennings
gave his permission for employees to attend this off-
premise meeting is not credited. According to Burge,
Jennings said, "Whatever it takes to solve the problem
that's what I want to do"; Jennings would do "anything"
to resolve the problem. Burge, however, could not ex-
plain why if this was Jennings' position Jennings did not
simply reinstate the three "day-dock" positions. Jennings
testified that he did not give permission for employees to
attend an off-premise meeting. His testimony is credited.
Jennings testified that somewhat after 4 p.m. his super-
visor indicated that he went in at 4 p.m. and advised em-
ployees that they were expected to go to work. Jennings
himself then went to the office breakroom which was
empty. He then went to the drivers' breakroom and saw
several employees, some of whom were playing cards.
La Dosz testified that she played cards in the drivers'
breakroom from about 4 to 10 p.m. Jennings testified on
direct that he advised the employees in the drivers'
breakroom who were supposed to begin their shift at 4
p.m. "that there would be disciplinary action taken
against those employees who refused to go to work." On
cross-examination Jennings testified:
I went in-I don't remember if I told them it was
an unauthorized work stoppage. I remember going
in and telling them the same thing I told them at 9
o'clock, that they were to report to work immedi-
ately and their failure to report to work would
result or could result in up to 30 days off.
Yes, and also discharge.6
La Dosz testified that she recalled Jennings coming into
the drivers' breakroom around 4:30 but "[h]e did not say
anything. He just walked in . .. [a]nd got a cup of
coffee out of the ... vending machines . .. in the driv-
ers' breakroom." 7 Again Jennings cannot be credited.
Two witnesses called by the General Counsel contradict
him. And Jennings himself indicates at one point he
warned employees of disciplinary action only once
during March 24 and then indicates that he issued disci-
plinary warnings twice to employees on that day. La
Dosz' testimony is credited. Jennings said nothing to the
employees in the drivers' breakroom at 4:30 p.m.
The meeting was held at Local 299 at 10 p.m. on
March 24. Approximately 40 of McLean's employees at-
tended. La Dosz, who was there, testified that one mid-
night shift employee asked whether he should report for
work; and that Lins said the midnight shift should report
stating: "We could be off 23 hours and 59 minutes with-
out any action being taken and go back to work." Later
she testified that Lins said: "You can stay out 23 hours
e Earlier, on cross-examination, Jennings testified: "On one occasion I
told them the discipline they received. The other occasions I just told
them I expected them to go back to work immediately." Also, on cross-
examination Jennings testified that on one occasion employees laughed
when he told them he wanted them to go back to work.
I La Dosz' immediate supervisor advised her at 4:15 p.m., 15 minutes
before her shift was to begin, that there was work available.
1255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 59 minutes, and they can't do anything to you."8
Duncan testified that Lins said: We are going back to
work at 12 midnight." And Burge testified that Lins re-
sponded: "Go to work. No problem. Go to work." It
was also Burge's testimony that he did not recall Lins
mentioning "22 hours, 23 hours." Also, Burge pointed
out that the 24-hour period would have expired at 7 a.m.
on the following day. If the midnight shift had not re-
ported, the maximum possible disciplinary action
McLean could have taken for what it was asserting was
an unauthorized work stoppage would have changed
from a 30-day suspension to discharge during that shift-
at 7 a.m. on March 25. All agreed that the question was
asked, an answer was given, and the employees on the
midnight shift were to report to work. As indicated
infra, they did. The dispute focuses on Lins' reply. How-
ever, even if La Dosz is credited over Duncan and
Burge, and she is, Lins' erroneous advice given 15 hours
after the fact-after the alleged work stoppage com-
menced-cannot be said to have misled those who par-
ticipated in it at its inception.
La Dosz and Lewis testified that no union representa-
tive advised them of the possibility of discipline. Duncan
testified that he never, and he never heard any union
business agent, caution employees about the possibility of
discipline. And Burge testified that he did not, and to his
knowledge neither did any other business agent, caution
employees that they could be disciplined. Duncan testi-
fied that March 24 was the same as March 18 since no
supervisor "would ever come in and tell you to go to
work. So I thought they were condoning it." Earlier
Duncan testified that on five occasions during March 24
Jennings advised the employees that there was work
available but he did not order anybody back to work.
Assertedly, Duncan did not even think about the possi-
bility of discipline. Burge testified that if McLean had
advised the Union that it was in an unauthorized work
stoppage or in other words
. . . [i]f the Company had given us a direct order
and there had been lines drawn, so to speak, to
where there was an absolute confrontation, yes, sir,
those employees would have been advised of the re-
sponsibilities of the Union and of their responsibil-
ities, and of any punishment that may have been
dealt out under the terms of the Teamster contract.
Jennings left the terminal at 7 p.m. on March 24. At
midnight he received a telephone call from his dispatcher
who said that midnight shift employees were reporting
a Although it was not covered on direct, one of the counsel for Re-
spondent asked La Dosz on cross-examination whether she remembered
someone at the meeting getting up and saying, "Why don't we put
McLean on strike?" La Dosz did not. Duncan and Burge, both of whom
attended the meeting at Local 299, testified that they heard someone call
for a strike. The former testified that "a couple [of people] at the meeting
wanted to go on strike"; that Lins said: "No, we are not going to go on
strike"; and that he didn't really remember "him [Lins] responding. He
just said, you know, like shaking his head no." The latter testified that
"someone from the floor suggested that we go on strike" and Lins re-
sponded, "Hell, no." So, one of the Respondent's witnesses has Lins
giving a nonverbal response and the other has Lins giving just the oppo-
site, an exclamatory response of the type which a hearer would normally
remember. La Dosz did not. She is credited.
to work; that a number of people also came to the termi-
nal who were not McLean employees and some were
Local 299 business agents, namely, Burge, Langkil, and
Grayhek, and Lins; and that McLean's dock foreman
John Bahadurian had been beaten up. Jennings told the
dispatcher to call the police. About 12:30 a.m., March
25, Jennings arrived at the terminal. Representatives of
Local 299 were still there, along with a number of other
people whom Jennings did not recognize. When Jennings
tried to go to the end of the dock Burge, Greyhek, and
Langkil physically blocked his way. Subsequently repre-
sentatives of Local 299 left and the police arrived.
Within days, McLean advised those of its employees
who did not work on March 24 after 7 a.m. that they
would be suspended for 30 days without pay, under arti-
cle 8, section 2(b) of the National Master Freight Agree-
ment for participating in an unauthorized work stoppage
on March 24. (G.C. Exh. 3.) The employees, including
the Charging Party, filed grievances asserting that they
were not involved in a work stoppage.
By letter dated September 5, signed by the union
chairman Frank E. Fitzsimmons and the Employer chair-
man Arthur H. Bunte Jr., McLean and Local 299 were
notified of the following:
Please be advised that at the National Grievance
Committee, on September 4, 1980, a motion was
made that based on the Subcommittee Report, the
Union did participate in an unauthorized work stop-
page in violation of the Agreement. Motion dead-
locked.
In October these grievances went before the Michigan
Joint State Arbitration Committee pursuant to the con-
tract. The decision of the committee reads as follows:
The Committee finds that this grievance is improp-
erly before the Committee, pursuant to the man-
dates of Article 8, Section 2(b) of the Contract
which specifically provides that an employer has
the sole and complete right of reasonable discipline,
including suspension from employment, up to and
including 30 days for unauthorized work stoppages
of less than 24 hours in duration and that employees
subject to said discipline shall not be entitled to or
have any recourse to the grievance procedure.
[G.C. Exh. 5.]
Two civil actions were initiated over the suspensions.
The one which involved McLean against the Union was
settled. (G.C. Exhs. 6 and 7.) The other, which involves
the suspended employees against McLean, was pending
on appeal at the time of the hearing herein. (R. Exh. 6.)
B. Contentions
The General Counsel, on brief, contends that in the in-
stant case the Union clearly initiated a work stoppage by
misleading its members in that it informed them they
were merely attending a meeting while at the same time
it (a) withheld from them the information that McLean
considered their actions to be a work stoppage, and (b)
subjected them to a contractually imposed disciplinary
1256
TEAMSTERS LOCAL 299 (MCLEAN TRUCKING)
layoff by failing to respond to McLean's telegrams thus
assuring that the work stoppage would be held to be un-
authorized under the contract. Assertedly "[t]he mem-
bers had a right to expect better from their statutory ex-
clusive bargaining representative." (G.C. Brief p. 12.)
Respondent, on brief, argues that this matter rests on
the reasonable reliance of the Union on a past practice,
namely, the employer meeting with employees and the
Union during business hours, something which the Union
is fully entitled to do. Assertedly the burden which the
General Counsel seeks to impose herein "goes beyond
mere negligence, and requires an obligation to be placed
upon the union to advise employees of every conceivable
result that may occur in a given situation, regardless of
reasonable reliance on the part of the union to the con-
trary." (Emphasis added.) (R. Br. 38.)
C. Analysis
As noted above, Respondent stands accused of insti-
gating and causing a work stoppage in violation of a no-
strike clause without accurately informing its members of
possible discipline.
Did the work stoppage violate the contractual no-
strike clause? Respondent argues that it was relying on
past practice. The facts, however, do not support this
contention. Also, it did not make this assertion on March
24 in that it did not reply to McLean's mailgram. Three
days before the work stoppage began, Langkil disclosed
his true intentions when he spoke with one of the busi-
ness agents who accompanied him, Burge. Langkil did
not tell Burge that he was either to assist in a meeting or
an inspection, but rather that he would be needed be-
cause Langkil expected a "volatile situation" at
McLean's Detroit terminal on Monday morning. Jen-
nings did not authorize any meeting on March 24. Unlike
March 18, Jennings asked the employees to go to work
during the period in question. The above-described mail-
grams are objective evidence of how Jennings and
McLean viewed what was occurring on March 24.
While some employees may initially have believed that
they were going to participate in a meeting similar to the
one conducted on March 18, they were disabused of this
mistaken impression when Jennings did not engage in an
exchange with them but rather asked them to work,
when at least some of them were advised by a union rep-
resentative that they were not working because they
were "protest[ingl the elimination of the day-dock
worker shift," when some of them either played or saw
their fellow employees playing cards on company time,
when some of them laughed at Jennings when he asked
them to go to work, and when they left the terminal
without permission on company time and attended a
meeting at the union hall. The Union instigated and
caused a work stoppage in violation of the no-strike
clause. While most, if not all, of the employees realized
or should have realized that they were engaged in a
work stoppage, it was not demonstrated that the employ-
ees knew the work stoppage was in violation of the con-
tract and subjected them to possible sanctions.
Before the Board first held that a union's breach of its
statutory duty of fair representation violates Section 8(b)
of the Act in Miranda Fuel Co., 140 NLRB 181 (1962),
the Supreme Court in Ford Motor Co. v. Huffman, 345
U.S. 330 (1953), while discussing the statutory obligation
of a union to its members, stated that:
The complete satisfaction of all who are represented
is hardly to be expected. A wide range of reason-
ableness must be allowed a statutory bargaining rep-
resentative in serving the unit it represents, subject
always to complete good faith and honesty of purpose
in the exercise of its discretion. [Emphasis added.]
In Miranda, supra, at 184 the Board quoted the following
language:
When the . . . union accepted certification [under
the Act] as the bargaining representative for a
group it accepted a trust. It became bound to repre-
sent equally and in good faith the interests of the
whole group.
And subsequently, id. at 185, the Board concluded:
A labor organization as a statutory bargaining rep-
resentative is not the same entity under the statute
as an employer; for labor organizations, because
they do represent employees, have statutory obliga-
tions to employees which employers do not.
And, id. at 189, it concluded:
The requirement of fair dealing between a union
and its members is in a sense fiduciary in nature and
arises out of two factors. One is the degree of de-
pendence of the individual employee on the union
organization; the other, a corollary of the first, is
the comprehensive power vested in the union with
respect to the individual.
The Supreme Court pointed out in Vaca v. Sipes, 386
U.S. 171, 182 (1967):
The collective bargaining system as encouraged by
Congress and administered by the NLRB of necessi-
ty subordinates the interests of an individual em-
ployee to the collective interests of all employees in
a bargaining unit.
In the instant proceeding, the Union placed the inter-
ests of three individuals above the collective interests of
all employees in the bargaining unit. Its intimidation tac-
tics, beginning with showing up at 7 a.m. on March 24
with a number of business agents and ending with phys-
ically denying Jennings access to a part of his terminal at
I a.m. the following morning, were improper. Also im-
proper was its use of the employees as leverage without
advising them of their obligation under the contract and
the possible consequences of their actions. It is immateri-
al that the employees, out of sympathy for the plight of
the three day-dock workers and in reaction to Jennings'
recent disciplinary actions, may have participated in the
work stoppage notwithstanding possible sanctions. Such
a showing, for obvious reasons, was not made; it is not
known whether they would have knowingly and willing-
ly assumed the risk involved. In these circumstances, Re-
spondent had a fiduciary obligation to make sure the em-
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees were aware of the possible consequences of their
action and extend to them a choice. This it did not do.
Accordingly, it violated Section 8(bXl)(A) of the Act, as
alleged by the General Counsel.
CONCLUSIONS OF LAW
1. McLean Trucking Co. is, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Union is, and at all times material
herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing fairly to represent those of its members
who are employed by McLean Trucking Co. at its De-
troit terminal on March 24, 1980, Respondent has en-
gaged in unfair labor practices in violation of Section
8(b)(l)(A) of the Act.
4. The unfair labor practices described in paragraph 3
above are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(b)(1)(A) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom, and to take certain affirmative action
designed to effectuate the policies of the Act.
Respondent, failing to fulfill its fiduciary obligation to
the involved members, shall make whole, with interest,
the loss of pay suffered by those of its members suspend-
ed by McLean Trucking Co. for the March 24, 1980
work stoppage.9
9 The following were suspended:
Anthony Dormarito
John Scoby
Donald Dost
Dennis Conley
Garry Driaty
Robert Axt
Richard Wiggins
Albert Waelan
Edward Zamenski
John Danis
Nathan Valentine
Leonard Miahlopey
Golden Mullens
Linwood McGowan
Charles Warren
Joseph Lawrence
David Schialar
Gladys Adams
Walter Holowitz
Christopher Kurbel
DeWayne Schlaf
Lawrence Boom
Raymond Ruhtz
Gerald LaBond
John Banton
Michael Sloan
Stanley Wormisk
Edwin McGlester
Charles Housmen
Joyce Culp
Larry Phillips
Peter Lach
Kenneth Plocharczyk
David Pitel
Anthony Konchel
David Bellemir
Robert Francis
David Bowman
Paul Valle
Gerald Honeycutt
Fred Thompson
James Proston
Ronald Bise
William Rouse
George Knowles
Douglas Brown
Timothy Curry
Judith Dolan
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'O
ORDER
The Respondent, Local 299, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen, and Helpers
of America, Detroit, Michigan, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Failing fairly to represent its above-described mem-
bers in violation of Section 8(bXI)(A) of the Act.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Make whole those of its members described in foot-
note 9 above for any loss of pay they suffered as a result
of the unfair labor practices found herein, with interests
computed thereon in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corp., 231 NLRB 651 (1977)."
(b) Post in its business office and meeting places,
copies of the attached notice marked "Appendix."' 2
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being signed by Respond-
ent's representatives, shall be posted by Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that said notices
are not altered, defaced, or covered by any other materi-
al.
(c) Sign and mail sufficient copies of said notice to the
Regional Director for Region 7, for posting by McLean
Trucking Co., at all locations where notices to employ-
ees are customarily posted, if McLean Trucking Co. is
willing to do so.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
Carey Misk
John Colwall
James Eggleston
Willie Laverett
Robert Massey
Sharon Ladosz
Barbara Authier
Darrow Campbell
Laurene Ayers
Demgen
'° 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 objections to them shall be deemed waived for all pur-
poses.
l'See generally Isis Plumbing Co., 138 NLRB 716 (1962).
12 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1258
TEAMSTERS LOCAL 299 (MCLEAN TRUCKING)
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail to represent our members who are
employed by McLean Trucking Co. at its Detroit,
Michigan terminal.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL make whole for any loss of pay suffered,
with interest thereon, members employed by McLean
Trucking Co. at its Detroit, Michigan terminal on March
24, 1980, who were suspended as a result of our unfair
labor practices.
LOCAL 299, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMER-
ICA
1259