Teamsters Local 439 (University of the Pacific)

National Labor Relations Board - Board Decisions

Nov 7, 1997

324 N.L.R.B. 1096 (N.L.R.B. 1997)

1096
324 NLRB No. 168
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In agreeing with the judge that the Respondent Union violated
Sec. 8(b)(1)(A) by disciplining employee-member Rojas, we rely on
the fact that Rojas’ duties as a leadperson required him, inter alia,
to report any work rule infractions to the Employer and the Re-
spondent Union’s trying and fining him for this affected his employ-
ment status. Carpenters District Council of San Diego (Hopeman
Bros.), 272 NLRB 584 (1984); and Chemical Workers Local 604
(Essex International), 233 NLRB 1239 (1977).
2 We have modified the judge’s Order to make clear that the
make-whole remedy includes any lost wages that Rojas may have in-
curred in defending himself before the Union’s executive board and
Joint Council of Teamsters Local 38. Sheet Metal Workers Local
530 (Dynamics Corp.), 312 NLRB 229, 234 (1993).
General Teamsters Local No. 439, International
Brotherhood of Teamsters, AFL–CIO and Luis
Rojas and University of the Pacific. Case 32–
CB–4602 and 32–CB–4604
November 7, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On April 28, 1997, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent Union filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions,1 and to adopt the rec-
ommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Gen-
eral Teamsters Local No. 439, International Brother-
hood of Teamsters, AFL–CIO, Stockton, California, its
officers, agents, and representatives, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Rescind in full the fine assessed against Luis
Rojas on or about December 4, 1995, refund to Rojas
any amounts he has paid in satisfaction of that fine,
and make Rojas whole for all travel or other expenses
including any lost wages he may have incurred to at-
tend and defend himself at the proceedings before the
executive board and before the Joint Council of Team-
sters Local 38 on November 8, 1995, and January 30,
1996, respectively, together with interest as provided
in the remedy section of the judge’s decision in this
case.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 impose a fine against an employee-
member because he or she reports another employee-
member to his or her employer for work rule infrac-
tions, at a time when the employee-member’s work du-
ties require such reports.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL fully rescind the fine assessed against Luis
Rojas on or about December 4, 1995, and WE WILL re-
fund to Rojas any amounts he paid in satisfaction of
that fine and make him whole for all travel or other
expenses including lost wages he may have incurred to
attend and defend himself at the proceedings before
our executive board and before the Joint Council of
Teamsters Local 38 on November 8, 1995, and January
30, 1996, respectively, together with interest as re-
quired by law.
Within 14 days from the date of this Order, remove
from its files, and ask the Employer to remove from
the Employer’s files, any reference to the unlawful dis-
charge, and within 3 days thereafter notify the em-
ployee in writing that it has done so and that it will
not use the discharge against him in any way.
WE WILL, within 14 days from the date of this
order, request that the Joint Council of Teamsters
Local 38 purge its records of the proceeding brought
against Luis Rojas in connection with the citation
dated August 15, 1995, and WE WILL furnish Rojas
with a copy of this request.
GENERAL TEAMSTERS LOCAL NO. 439,
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, AFL–CIO
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1097TEAMSTERS LOCAL 439 (UNIVERSITY OF THE PACIFIC)
1 The pertinent events here occurred between July 1995 and the fil-
ing of the UOP charge. Unless noted otherwise, all further dates
refer to the calendar years in that period.
2 The relevant portion of Sec. 8(b)(1)(A) provides that it is an un-
fair labor practice for a labor organization ‘‘to restrain or coerce
. . . employees in the exercise of the rights guaranteed in section
7: Provided, That this paragraph shall not impair the right of a labor
organization to prescribe its own rules with respect to the acquisition
or retention of membership therein; . . . .’’ Section 7 gives employ-
ees the right to engage in union or concerted activities or to refrain
from engaging in those activities.
3 The exact nature of Lynch’s discipline at this time is unknown.
However, documents from the internal union proceeding indicate that
at some point, UOP terminated Meneses and suspended Silva but
they do not reflect that these severe disciplinary measures resulted
solely from Rojas’ report to Lynch involved here.
Daniel Altemus, Esq., for the General Counsel.
David Rosenfeld, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of Oakland, California, for the Respondent.
James E. Mesnier, Esq. (Cook, Brown, Rediger & Prager),
of Sacramento, California, for Charging Party University
of the Pacific.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Luis
Rojas (Rojas) filed the charge in Case 32–CB–4602 on April
26, 1996; University of the Pacific (UOP) filed the charge
in Case 32–CB–4604 on May 3.1 Based on those charges,
the General Counsel’s complaint, as amended, alleges that
General Teamsters Local No. 439, International Brotherhood
of Teamsters, AFL–CIO (the Respondent or Local 439), en-
gaged in an unfair labor practice within the meaning of Sec-
tion 8(b)(1)(A) by citing, trying, and fining Rojas on an in-
ternal union charge for bringing ‘‘harm to fellow union
members.’’ The General Counsel contends that Local 439’s
internal action against Rojas was premised on his perform-
ance of ‘‘a routine and required function’’ of his leadperson
position at UOP. Although Local 439 admits that it proc-
essed internal union charges against Rojas, it contends that
it was legally privileged to do so based on the 8(b)(1)(A)
proviso and, hence, it denies the unfair labor practice al-
leged.2
I heard this case at Oakland, California, on January 28,
1997. Having carefully considered the record, the demeanor
of the witnesses while testifying, and the posthearing briefs
of the General Counsel and Local 439, I have concluded that
Local 439 violated Section 8(b)(1)(A), as alleged, based on
the following
FINDINGS OF FACT
I. JURISDICTION AND ORGANIZATIONAL STATUS
Respondent admits that it is a labor organization within
the meaning of Section 2(5) of the Act and that it is an asso-
ciation with a place of business in Stockton, California,
where it represents employees in bargaining with employers.
At material times, Respondent has been affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, whose headquarters are
located in Washington, D.C. In the course of its business op-
erations in the 12 months prior to the issuance of the com-
plaint, Respondent purchased and received goods or services
valued in excess of $5000 which originated outside the State
of California.
At material times, UOP, a California corporation, has been
engaged in the operation of a private university on a 175-
acre campus in Stockton. During the past 12 months, UOP
derived gross revenues in excess of $1 million from the con-
duct of its business operations. Respondent admits that UOP
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
As described in more detail below, Local 439 represents
certain UOP employees and has maintained a series of col-
lective-bargaining agreements with that educational institu-
tion. Accordingly, I find that the National Labor Relations
Board (the Board) has jurisdiction to resolve this labor dis-
pute and that it would effectuate the purposes of the Act for
it to do so.
II. THE ALLEGED UNFAIR LABOR PRACTICE
For some time Local 439 has represented UOP’s custodial
employees and has entered into a series of collective-bargain-
ing agreements with UOP applicable to that unit. The custo-
dial leadpersons are included in the unit represented by Local
439. The custodial collective-bargaining agreement in effect
from September 1993 through August 1996 provides that
leadpersons may perform unit work and also vests
leadpersons with ‘‘authority to direct and recommend dis-
cipline’’ of unit employees.
UOP’s physical plant department includes a staff of 40 to
45 employees who perform custodial services at the univer-
sity facilities. At relevant times, Gary Lynch managed the
custodial personnel who are organized into five crews. Each
crew has a leadperson who, in addition to performing regular
unit work, oversees the crew’s work and reports to Lynch
about the crew’s performance.
For the past few years, Luis Rojas has been employed by
UOP on its custodial staff. In or about May 1995, Lynch
promoted Rojas to a leadperson position. At that time Lynch
told Rojas that his leadperson responsibilities included
‘‘monitoring [unit] work and employees in his group’’ and
about his expectation that Rojas would report ‘‘any problems
he may have with personnel, such as unsafe work practices
or taking a long break or non-performance of their job.’’ In-
deed, Lynch testified that he has demoted a leadperson who
failed to provide him with such reports.
In mid-July 1995, Rojas reported to Lynch that he came
upon four custodians, Jesse Silva, Andrea Meneses, Lupe
Torres, and Lolita Sailot, in a custodial closet, a room dedi-
cated for the storage of custodial supplies, during their regu-
lar worktime. According to Lynch, Meneses and Silva had
been assigned to clean in another building and, consequently,
had no apparent reason for being away from their worksite.
By Lynch’s account, Rojas reported that he found Meneses
and Silva simply sitting in the closet when he entered to
search for or deliver some supplies. Although Rojas made no
recommendation of any sort about discipline, Lynch subse-
quently took disciplinary action against Meneses and Silva
based on Rojas’ report.3
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1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 In the Local 439 proceeding, it appears that the executive board
entertained a litany of complaints from unit members, including
Meneses and Silva, about Rojas’ actions as a leadperson. However,
the proceedings before Joint Council 38’s trial board narrowly fo-
cused on Rojas’ report to Lynch about Meneses and Silva apparently
because UOP refused to release anyone other than Hisel and Rojas
from work to attend the trial board’s hearing.
Thereafter, Union Steward Brian Hisel filed an internal
union ‘‘citation’’ dated August 15 which claimed that Rojas
had violated the collective-bargaining agreement, the local
union bylaws, and the International union constitution by
‘‘[t]urning in union members to management for disciplinary
action against union members for personal gain.’’ Following
notices about the charges Local 439’s executive board con-
ducted a hearing on Hisel’s citation on November 8.
Subsequently, Local 439’s secretary-treasurer, Pat
Miraglio, issued the executive board’s decision dated Decem-
ber 4. In its decision the executive board found that Rojas
‘‘caused harm to harm to his fellow members by bringing
details to the attention of management.’’ It assessed a $500
fine against Rojas but held $400 in ‘‘abeyance’’ for 1 year
on the condition that Rojas ‘‘must not engage in any such
behavior or the entire amount of the fine [would] become
due and payable in addition to any fines that may be the sub-
ject of additional charges.’’
In accord with his right as a member, Rojas appealed the
executive board’s decision to Joint Council of Teamsters
Local 38 in Modesto, California. A trial board for Joint
Council 38, in effect, conducted a de novo hearing on the
matter. That trial board subsequently found Rojas ‘‘guilty be-
cause he admitted that he turned people in [to manage-
ment].’’4 In a ruling dated April 15, it upheld the charges
against Rojas, dismissed his appeal, and ordered him to pay
the fine levied by Local 439. Rojas and UOP filed the
charges in this case shortly thereafter.
The fallout from the closet incident continued to the next
negotiations when Local 439 sought some assurance that the
leadpersons would first make an inquiry of the employees
concerning apparent work rule violations before reporting the
matter to the custodial supervisor. Consequently, the parties
negotiated a memorandum of understanding with the 1996–
1999 agreement which provided, in essence, that the
leadperson would report a ‘‘violation’’ only if the employee
response was ‘‘not acceptable or requires follow-up, com-
plete investigation.’’ According to Joe Kirim, the director of
UOP’s physical plant, Local 439 complained at negotiations
because Rojas was ‘‘turning in other members’’ without in-
vestigating to find out what was going on. Kirim agreed to
the memorandum of understanding even though he believed
that Rojas acted properly in the incident involving Meneses
and Silva.
III. ARGUMENT AND CONCLUSIONS
The General Counsel argues that Rojas’ duties as a
leadperson included ‘‘making sure that the employees in his
group were working when they were supposed to be’’ and
that it was his ‘‘responsibility to report any incidents [to
management] where employees were not working as sched-
uled.’’ The General Counsel further asserts, in effect, that
Rojas acted within the scope of his job responsibilities by in-
forming Lynch that he had come upon Meneses and Silva
outside their work area during their worktime. Citing Car-
penters District Council of San Diego (Hopeman Bros.), 272
NLRB 584 (1984), and Chemical Workers Local 604 (Essex
International), 233 NLRB 1239 (1977), the General Counsel
contends that Local 439’s fine levied against Rojas for per-
forming his employer-assigned tasks violated Section
8(b)(1)(A).
Local 439 argues that the collective-bargaining agreement
defines the leadperson’s responsibilities and that Rojas acted
outside the scope of those contract-defined responsibilities.
Thus, Local 439 asserts that Rojas had a contractual duty to
inquire into the reasons for the employees’ absence from
their assigned work area and to direct them to return to their
regular area absent some good reason for them to be where
they were found. In effect, Local 439 believes that Rojas
would have been justified in reporting the incident to Lynch
only if the two employees ignored his direction to return to
work or if he repeatedly found the employees outside their
assigned area. As Rojas failed to speak to the employees at
all, Local 439 contends that its internal discipline was legally
justified to compel Rojas’ compliance with the collective-
bargaining agreement. In support Local 439 cites Sterling
Boiler & Mechanical, Inc., 319 NLRB 434 (1995); Letter
Carriers, Branch 9, 316 NLRB 1294 (1995); and Auto Work-
ers Local 933 (Allison Gas), 307 NLRB 1065 (1992).
These findings control the outcome of this case: (1) Rojas
was a nonsupervisory UOP leadperson and a member of
Local 439 at relevant times; (2) Lynch expected and in-
structed Rojas to report infractions of UOP’s work rules; (3)
Rojas risked demotion from his leadperson position by fail-
ing to report work rule infractions; (4) Rojas reported an in-
fraction of UOP’s rules by Meneses and Silva to Supervisor
Lynch who, in turn, disciplined those two employees; and (5)
Local 439 imposed a fine against Rojas for reporting the rule
infraction by Meneses and Silva.
The Carpenters and the Chemical Workers cases cited by
the General Counsel, are indistinguishable from this case. In
those cases the Board, virtually without comment, adopted
the conclusion reached by the respective administrative law
judges that a union violates Section 8(b)(1)(A) by disciplin-
ing a leadperson-member for reporting work rule infractions
to supervision as required. Without belaboring the point, I
find that those cases (especially the Carpenters case) control
the outcome here. Suffice it to say, however, that I do not
share the concern expressed by some of my former col-
leagues in their decisions concerning the absence of ‘‘con-
certed activity’’ on the part of the leadpersons in cases of
this nature. The short answer to their concern is that the
leadperson-member in these cases, in effect, refrains from
acting in concert with other employee-members who seek to
cover up work rule infractions and thereby avoid discipline.
As Section 7 protects both those employees who engage in
concerted activity as well as those who refrain from engaging
in concerted activity, a leadperson’s refusal to participate in
this type of concerted activity because of a legitimate affirm-
ative duty imposed by the employer is protected by law.
Local 439’s argument that its internal union discipline
against Rojas was designed to enforce the collective-bargain-
ing agreement lacks factual support. Obviously, the provision
in the 1993–1996 collective-bargaining agreement related to
the leadpersons is not the sum and substance of their job de-
scription. Hence, I cannot conclude as Local 439 ar-
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1099TEAMSTERS LOCAL 439 (UNIVERSITY OF THE PACIFIC)
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
6 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
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.’’
gues that Rojas was duty bound by the bargaining agreement
to speak to the errant employees first and ignore his super-
visor’s directive about reporting such matters unless the em-
ployees exhibited immediate insubordination or a proclivity
to leave their work area. Clearly the 1993–1996 agreement
(in effect when these events occurred) imposes no limitation
at odds with UOP’s requirement that leadpersons report all
infractions to their supervisors. And at least until the 1996–
1999 agreement, Rojas’ employer expected him to do just
that. Hence, Local 439’s agreement-based argument is far too
tenuous for me to conclude that Local 439 had an overriding
legitimate interest to protect by means of its internal discipli-
nary procedure.
Accordingly, on the basis of the General Counsel’s prece-
dent, I find that the fine which Local 439 levied against
Rojas directly affected his employment status and thereby
violated Section 8(b)(1)(A) as alleged.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
2. UOP is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
3. At all material times, Respondent was the exclusive bar-
gaining representative within the meaning of Section 9(a) of
the Act of UOP’s custodial employees, including the custo-
dial leadpersons.
4. By the fine levied against him on or about December
4, 1995, Respondent restrained and coerced Luis Rojas and
other similarly situated employees within the meaning of
Section 8(b)(1)(A) of the Act.
THE REMEDY
Having found Respondent engaged in certain unfair labor
practices, I recommend that it be ordered to cease and desist
therefrom and take the following affirmative action designed
to effectuate the purposes of the Act.
Thus, my recommended Order requires that Local 439 re-
scind the fine it levied against Luis Rojas on December 4,
1995, and refund any moneys Rojas may have paid in satis-
faction of that fine. In addition, as the record reflects that
Rojas appeared before Local 439’s executive board on No-
vember 8 as well as the Joint Council trial board on January
30 in an effort to defend against the charges brought against
him, Local 439 is required to reimburse Rojas for any travel
and other expenses as determined in the compliance stage of
this proceeding he may have incurred in this effort. Laborers
Northern California Council (Baker Co.), 275 NLRB 278
(1985). Interest computed as provided in New Horizons for
the Retarded, 283 NLRB 1173 (1987), shall be added to
these amounts. Moreover, Local 439 is required to remove
from its records any reference to the internal proceedings
against Rojas which are the subject of this case and notify
Rojas in writing that this action has been taken and that this
matter will not be considered in any future proceedings.
Local 439 is also required to request that the Joint Council
of Teamsters Local 38 purge its records of this matter and
furnish Rojas with a copy of that request. Finally, Local 439
is required to post official notices to members concerning
this matter and to provide signed copies of that notice to
UOP for posting if it so desires.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, General Teamsters Local No. 439, Inter-
national Brotherhood of Teamsters, AFL–CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Imposing a fine on any employee because he or she
reports another employee-member to his or her employer for
work rule infractions, at a time when it is part of the work
duties of the employee who makes the report to do so.
(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) Rescind in full the fine assessed against Luis Rojas on
or about December 4, 1995, refund to Rojas any amounts he
has paid in satisfaction of that fine, and make Rojas whole
for all travel or other expenses he may have incurred to at-
tend and defend himself at the proceedings before its execu-
tive board and before the Joint Council of Teamsters Local
38 on November 8, 1995, and January 30, 1996, respectively,
together with interest as provided in the remedy section of
the judge’s decision in this case.
(b) Within 14 days from the date of this Order, remove
from its files any and all references to the internal union pro-
ceedings against Luis Rojas in connection with the citation
dated August 15, 1995, and within 3 days thereafter notify
Rojas in writing that it has done so and that it will not use
this matter against him in any way.
(c) Within 14 days from the date of this Order, request
that Joint Council of Teamsters Local 38 purge its records
of the proceedings brought against Luis Rojas in connection
with the citation dated August 15, 1995, and concurrently
furnish Rojas with a copy of this request.
(d) Within 14 days after service by the Region, post at its
office in Stockton, California, and other places where notices
to its members are customarily posted copies of the attached
notice marked ‘‘Appendix.’’6 Copies of the notice, on forms
provided by the Regional Director for Region 32, after being
signed by the Respondent Local 439’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
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1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by University of the Pacific, if
willing, at all places where its notices to employees are cus-
tomarily posted.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
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