Teamsters Local 79 (Carl Subler Trucking)

National Labor Relations Board - Board Decisions

Apr 23, 1984

269 N.L.R.B. 1132 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Local 79 (Carl Subler Trucking, Inc.) and
Robert Cummings. Case 10-CB-3899
23 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 5 August 1983 Administrative Law Judge
Lawrence W. Cullen issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
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 brief and has
decided to affirm the judge's rulings, findings, 2 and
conclusions3 and to adopt the recommended
Order.
The judge concluded that the Respondent threat-
ened employee Cummins with unspecified reprisals
for engaging in protected intraunion activities in
The Respondent has excepted to the failure of the judge to consider
the posthearing brief which the Respondent attempted to file with the
judge and to the denial of the Respondent's request for an extension of
time in which to file such a brief. At the hearing the judge set 27 July
1983 as the deadline for filing posthearing briefs. On 26 July the Re-
spondent for the first time requested an extension of time in which to file
its briefs. The request was denied. The Respondent then filed a brief
dated 27 July which was not received in the office of the judge until 29
July. Sec. 102.42 of the Board's Rules and Regulations provides that no
request for an extension of time in which to file a posthearing brief "will
be considered unless received at least 3 days prior to the expiration of the
time fixed for the filing of briefs." In these circumstances, the Respond-
ent's request for an extension of time was properly denied and the judge's
failure to consider the Respondent's late filed brief was proper.
a 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.
s In adopting the judge's conclusion that the Respondent violated Sec.
8(bXIXA) of the Act by removing Cummins from his position as steward,
we rely additionally on the fact that there was a delay of more than 6
weeks between the time when, according to the Respondent, its agent,
Dennis Fernandez, was supposed to remove Cummins and the time when
Fernandez actually wrote the letter of removal. The Respondent's only
explanation for the delay was that Fernandez "forgot." The implausibility
of forgetting a previously determined removal action for a period of 6
weeks belies the Respondent's argument that its reason for removing
Cummins was his disruptive conduct at negotiations and strengthens the
inference that the true reason was the Respondent's receipt of the unfair
labor practice charge that Cummins filed in the instant case. In adopting
the finding of a violation with respect to Cummins' removal as steward,
we additionally note that the unfair labor practice charge which Cum-
mins filed against the Respondent involved, inter alia, allegations that the
Respondent had violated Cummins' rights as an employee as well as alle-
gations that the Respondent had violated rights of other employees.
In adopting the judge's finding that the Respondent violated the Act
by removing Cummins as steward, we do not rely on Teamsters Local 528
(Theatres Service), 237 NLRB 258 (1978), where the Board found that the
respondent union violated Sec. 8(b)(IXA) of the Act by refusing to rein-
state an employee as alternative steward because he had filed a charge
with the Equal Employment Opportunity Commission.
269 NLRB No. 190
violation of Section 8(b)(l)(A) of the Act when
Business Agent Dennis Fernandez told Cummins in
a March 1982 telephone conversation, "I can be
your friend, you know, but don't cross me." We
find merit in the Respondent's exceptions to the
judge's conclusion.
The conversation in question was initiated by
Cummins, who was then a union steward, in an at-
tempt to resolve a grievance that he, as an employ-
ee, has against the Employer. Immediately after
Cummins related the grievance to Fernandez, Fer-
nandez contacted the Employer and resolved the
grievance favorably to Cummins. In testimony
credited by the judge, Cummins stated that after
the grievance was resolved, "as an afterthought or
whatever, [Fernandez] said, 'by the way, I've got a
bone to pick with you,' and then he proceeded to
tell me that there was a lot of scuttle-butt out there
that I was saying some bad things about the Union
Hall and everything." Cummins testified that he
told Fernandez that if he had something to say to
Fernandez he would say it to him personally, and
that Fernandez then said, "I can be your friend,
you know, but don't cross me." Cummins asked
whether what Fernandez had said was a threat,
and Fernandez replied in the negative. Later in his
testimony about the same conversation, Cummins
stated that Fernandez "had indicated that I was in-
citing the drivers against the Union and so forth
and against the . . . grievance procedure . . . and
stirring them up against the Union." Cummins fur-
ther testified that he did not think the conversation
was "all that important."
Considering the circumstances presented here,
including particularly that Cummins was a union
steward, that the "don't cross me" remark was
made after Fernandez had successfully resolved a
grievance in Cummins' favor, and the ambiguous
and vague nature of the remark, we conclude that
it did not constitute a threat of reprisal violative of
the Act. Accordingly, we shall dismiss that portion
of the complaint.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Teamsters Local 79, Tampa, Florida, its
officers, agents, and representatives, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph l(a).
"(a) Attempting to cause the Employer, Carl
Subler Trucking Company, to discriminate against
Robert Cummins in his terms and conditions of em-
ployment because of his participation in protected
intraunion activities."
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TEAMSTERS LOCAL 79 (CARL SUBLER TRUCKING)
2. Substitute the attached notice for that of the
administrative 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 ordered us to post and abide by this notice.
WE WILL NOT attempt to cause the Employer of
Robert Cummins, Carl Subler Trucking Company,
to discriminate against him in violation of Section
8(a)(3) of the Act.
WE WILL NOT remove Robert Cummins from his
position as union steward because he filed an unfair
labor practice charge with the National Labor Re-
lations Board.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL immediately reinstate Robert Cummins
to his former position of union steward with all
rights and privileges previously enjoyed in such
positions or, if that position no longer exists, then
to a substantially equivalent position.
TEAMSTERS LOCAL 79
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard at Atlanta, Georgia, on June 22,
1983. The hearing was held pursuant to an amended
complaint issued by the Regional Director for Region 10
of the National Labor Relations Board (the Board) on
February 18, 1983, and is based on a second amended
charge filed on November 2, 1982. The complaint alleges
that Teamsters Local 79 (the Respondent or the Union)
violated Section 8(b)(XI)(A) and 8(bX2) of the National
Labor Relations Act (the Act) by threatening Robert
Cummins, an employee of Carl Subler Trucking, Inc.
(the Employer) and a member of the Union, with repris-
als if he "engaged in dissent Union and protected, con-
certed activities" and by removing Robert Cummins as a
union steward because he filed a charge against Re-
spondent Union with the Board and by attempting "to
cause the Employer to discriminate against its employee
Robert Cummins," "because of his membership in, and
dissent activities on behalf of, Respondent Union." The'
complaint is joined by the answer of Respondent where-
in it denies the commission of the alleged violations of
the Act.
On the entire record in this proceeding including my
observation of the witnesses who testified herein, and
after due consideration of the positions of the parties as
expressed at the hearing and the brief filed by the Gener-
al Counsel, I make the following
FINDINGS OF FACT AND ANALYSIS
I. JURISDICTION
A. The Business of the Employer
The complaint alleges, Respondent Teamsters Local
79 admits, and I find that at all times material herein Carl
Subler Trucking, Inc. (the Employer) is and has been a
Florida corporation with an office and place of business
at Conley, Georgia, where it is engaged in the interstate
transportation of freight, and that during the past calen-
dar year, a representative period, the Employer derived
gross revenues in excess of S50,000 from the interstate
transportation of freight. The complaint further alleges,
Respondent admits, and I find that, at all times material
herein, Carl Subler Trucking, Inc. is and has been an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
B. The Labor Organization
The complaint alleges, Respondent admits, and I find
that, at all times material herein, Teamsters Local 79 is
and has been a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Employer is a trucking concern within terminals
located in various locations in the United States. The
Union represents the Employer's truckdrivers. The
Charging Party, Robert Cummins, is a member of the
Union and was employed by the Employer as a truck-
driver at its terminal in Conley, Georgia, where he was
also elected as union steward. As a union steward Cum-
mins participated in grievance meetings and negotiations
for a new collective-bargaining agreement which were
held in 1982. During the course of the 1982 contract ne-
gotiations the Employer and the Union were involved in
negotiating contractual concessions to the Employer.
Contractual concessions had been negotiated by the Em-
ployer the previous year. Cummins was opposed to these
concessions and voiced his opposition thereto in the 1982
negotiations and prepared and caused a flyer in opposi-
tion thereto to be distributed at the Conley facility
among the employees.
B. The March 1982 Telephone Conversation Between
Robert Cummins and Union Business Agent Dennis
Fernandez'
Cummins testified that on March 5, 1982, he contacted
Dennis Fernandez concerning a problem wherein the
I In March 1982 Manuel Fernandez (the father of Dennis Fernandez)
was president of the Union and Robert H. Meeks was secretary-treasurer
of the Union. On June 30, 1982, Manuel Fernandez retired from his posi-
Continued
1133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer had dispatched Cummins to a location in a
manner which Cummins considered to be in violation of
the labor agreement. Fernandez resolved the problem
and then told Cummins, "I've got a bone to pick with
you"; he then told Cummins that he (Dennis Fernandez)
has learned "that there was a lot of scuttle-butt out that I
[Cummins] was saying some bad things about the Union
Hall and everything." Cummins testified he told Dennis
Fernandez that if he (Cummins) had something to say to
him, he would say it to him personally. Cummins testi-
fied that Dennis Fernandez then told him, "'I can be
your friend, you know, but don't cross me.' And I [Cum-
mins] said, "Is that a threat?' And he [Dennis Fernandez]
said, 'No, I'm just telling you."' Cummins testified that
Dennis Fernandez had told him that he had learned that
Cummins was stirring the drivers up against the Union.
Dennis Fernandez was called by the Respondent
Union and acknowledged the conversation and that he
had told Cummins he had a bone to pick with him and
testified that he thought they (Cummins and Dennis Fer-
nandez) could "get along a lot better and work a lot
better together if we cooperate a little bit. I really don't
recall saying anything about don't cross me or-I don't
recall saying that."
Analysis
I credit the testimony of Cummins as set out above. I
found Cummins to be a credible witness who testified
with specific recall of the details of this telephone con-
versation. I also found the lack of recall of Fernandez to
be less than a specific denial that he had made the state-
ment attributed to him by Cummins. I do not regard the
lack of mention of this incident by Cummins in a prior
affidavit as sufficient reason to discredit his testimony.
I accordingly find that Fernandez did make the state-
ment as set out above to Cummins on March 5, 1982, in
response to Cummins' participation in intraunion activi-
ties. I find that this statement was an unspecified threat
of reprisal and that the Respondent Union thereby violat-
ed Section 8(b)(1)(A) of the Act.
C. The Alleged June 1982 Discussion of Cummins by
Union President Manuel Fernandez with the
Employer's Vice President
David Bradley a former driver representative for the
Employer and a former business agent for the Union tes-
tified that, while he was serving as the Employer's repre-
sentative during a break in a negotiation session, in June
1982 Robert Cummins was discussed by Ralph (Bud)
Scoles, the Employer's vice president of personnel and
risk control and Union President Manuel Fernandez and
that both men were upset with Cummins because he was
causing the Employer and the Union difficulties and im-
tion as president of the Union and Robert H. Meeks was appointed presi-
dent effective July 1, 1982, and Dennis Fernandez was appointed secre-
tary-treasurer effective July 1, 1982. 1 find on the basis of the admissions
in the answer of Respondent and the testimony of Dennis Fernandez and
Meeks at the hearing concerning the responsibilities of Manuel and
Dennis Fernandez and of Meeks in their respective positions that Manuel
Fernandez was at least from March to June 30, 1982, and that Dennis
Fernandez and Meeks were, at all times material herein, agents of the
Union within the meaning of Sec. 2(13) of the Act.
peding contract negotiations. Bradley testified that
Manuel Fernandez stated "that if they [the Employer]
could get something on him, he would see that it would
stick." Bradley was laid off by the Employer June 1982
shortly after the ratification of the 1982 labor agreement.
On cross-examination Bradley acknowledged that he had
resigned from his former position with the Union be-
cause he was dissatisfied with the way that Manuel Fer-
nandez had handled the Union's relationship with the
Employer and because of expense money problems.
Manuel Fernandez was not called to testify. Dennis
Fernandez testified that he had heard a conversation be-
tween the Employer's representatives and Manuel Fer-
nandez in early June 1982 concerning Cummins and that
the Employer was upset with Cummins and told Dennis
and Manuel Fernandez that it intended to discharge
Cummins and that Dennis and Manuel Fernandez told
the Employer's representatives (Bud Scoles and others)
that if they discharged Cummins, they had "better make
sure that you get him right, because if you don't, we're
gonna stick him up your ass." Dennis Fernandez denied
that Manuel Fernandez had ever made a statement that if
the Employer were able to get something on Cummins
that he would see that it stuck. Dennis Fernandez con-
ceded on cross-examination that he was not present with
his father (Manuel Fernandez) throughout the entire ne-
gotiations. Bradley was recalled by the General Counsel
in rebuttal and testified that, approximately 2 nights after
he overheard the conversation between Scoles and
Manuel Fernandez as set out above, he was called by
Scoles who asked whether Manuel Fernandez could be
trusted. Bradley testified he replied in the affirmative and
was then ordered by Scoles to engage in surveillance of
Cummins in order to get something on him and that he
(Bradley) was then flown to Cincinnati, Ohio, and en-
gaged in surveillance of Cummins for a 2-week period,
but was unable to find a cause for the discharge of Cum-
mins.
Analysis
The General Counsel contends that the Respondent
Union by the statement made by Manuel Fernandez, as
set out above, attempted to cause the Employer to dis-
criminate against its employee Robert Cummins.
I credit the testimony of Bradley as set out above. Ini-
tially, I recognize that he left his paid union position as
business representative because of a dispute with Manuel
Fernandez and that he was laid off by the Employer in
July 1982 after the ratification of the labor agreement. I,
however, found him to be a credible witness whose testi-
mony was straightforward and sincere and I find it un-
likely that his testimony is contrived. Moreover, his testi-
mony was not rebutted by either Manuel Fernandez or
Scoles, the two participants in the conversation as nei-
ther was called to testify. I also note that Dennis Fernan-
dez acknowledged that he was not with his father,
Manuel Fernandez, throughout the entire negotiations
and that there were more than one conversation con-
cerning Cummins. Under these circumstances I find the
testimony of Bradley should be credited. I thus find that
Respondent Union violated Section 8(b)(l)(A) and (2) of
1134
TEAMSTERS LOCAL 79 (CARL SUBLER TRUCKING)
the Act by the statement made by Manuel Fernandez to
the Employer's representatives that the Union would
assist the Employer in upholding adverse action against
Cummins (a discharge) if the Employer were to obtain a
reason to discharge him. This assurance by the Union to
the Employer in the face of the Employer's announced
intent to terminate Cummins because of his actions in op-
posing the course of contract negotiations was clearly an
effort to encourage the Employer to take discriminatory
action against Cummins in violation of Section 8(a)(3) of
the Act because of his participation in protected activi-
ties and a violation of Section 8(b)(l)(A) and (2) of the
Act. Fruin-Colnon Corp., 227 NLRB 59 (1976), enfd. 571
F.2d 1017 (8th Cir. 1978); H. H. Robertson Co., 263
NLRB 1344 (1982); Hotel Employees Local 332 (Ogden
Food Service), 259 NLRB 252 (1981).
D. The Removal of Cummins as a Union Steward in
August 1982
The initial charge in this case was filed on August 16,
1982, by Robert Cummins and was received by the
Union on August 18, 1982 (G.C. Exh. I(b)). By his letter
of the same date (G.C. Exh. 4) Dennis Fernandez re-
moved Cummins from his position as union steward.
Meeks and Dennis Fernandez contended at the hearing
that Cummins was to have been removed as stewards in
accordance with a mutual directive previously given to
Dennis Fernandez by Manuel Fernandez and Robert
Meeks as a result of the disruptive conduct of Cummins
at contract negotiation sessions. Dennis Fernandez testi-
fied that they (union representatives) had hesitated to
remove Cummins until contract negotiations were con-
cluded. Meeks testified concerning an incident wherein
Cummins allegedly walked out on a negotiating session
and sat in a tavern across the street for the remainder of
the afternoon. Meeks testified that at a negotiating meet-
ing held in early 1982 he chastised Cummins for openly
opposing the Union's position in a bargaining session in
the presence of the Employer's representatives rather
than presenting a united front and having discussed dif-
ferences in an intraunion caucus. Fernandez testified that
on the afternoon of August 17, 1982, he was directed by
Meeks to prepare a letter removing Cummins as steward,
that he did so, and left it for the Union's secretary to
type who sent it out and signed it on his behalf on
August 18, 1982, and that the letter to Cummins appar-
ently went out in the same mail in which the charge was
received by the Union on August 18, 1982. Both Dennis
Fernandez and Meeks denied that they had any knowl-
edge of the filing of a charge with the Board by Cum-
mins prior to his removal as union steward.
Cummins acknowledged that he had become upset and
walked out in a grievance meeting held in January 1981
but denied having ever walked out on a negotiation ses-
sion. He further acknowledged that Meeks had chastised
the entire group of union stewards and representatives
for having engaged in simultaneous discussions at a bar-
gaining sessions but denied that he was ever singled out
or told that his conduct at bargaining sessions was im-
proper. He further testified he only initially became
aware of his removal as steward when he was apprised
of it by a notice on a bulletin board at another terminal
in Versailles, Ohio. He was subsequently given a copy of
the notice by another union steward.
Analysis
I find that the circumstances as set out above, includ-
ing the timing of the removal of Cummins as a union
steward on the same date the Union received notice that
an unfair labor practice charge had been filed with the
Board and the unrebutted testimony of Cummins that he
had not been previously informed or given any indica-
tion of the impending move to remove him as steward
by the union representatives, give rise to an inference
that he was removed as a union steward because he filed
an unfair labor practice charge with the Board. I also
credit Cummins' version of his conduct at the negotiat-
ing session. I thus find that the General Counsel has
made a prima facie case of a violation of the Act.
I further find that the Union's attempt to rebut this in-
ference has failed as I find the testimony of Meeks and
Dennis Fernandez implausible with respect to their ex-
planation concerning the timing of the letter of removal
on the same date as their receipt of the notice and copy
of the unfair labor practice charge. I thus do not credit
their explanation and I find that the Respondent Union
has failed to rebutt the prima facie case. Accordingly, I
find that the Respondent Union violated Section
8(bXl)(A) of the Act by removing Cummins from his
position as a union steward because he filed an unfair
labor practice charge against the Union. Teamsters Local
528 (Theatres Service Co.), 237 NLRB 258 (1978); Auto-
mobile Workers Local 212 (Chrysler Corp.), 257 NLRB
637 (1981), enfd. 690 F.2d 82 (6th Cir. 1982).
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III
above, occurring in connection with the operations of
the Employer described in section I above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. By issuing a threat to Robert Cummins the Re-
spondent Union violated Section 8(b)(1)(A) of the Act.
4. By attempting to cause the Employer to discrimi-
nate against its employee Robert Cummins because of his
participation in protected intraunion activities, the Union
violated Section 8(bXl)(A) and (2) of the Act.
5. By removing Robert Cummins from his position as
union steward because he filed an unfair labor practice
charge with the Board, the Union violated Section
8(b)(1)(A) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(b)(1)(A)
and (2) of the Act, I shall recommend that it.be ordered
to cease and desist therefrom and to take certain affirma-
tive actions designed to effectuate the policies of the
Act.
I recommend that Respondent be ordered to cease and
desist from issuing threats to Robert Cummins or from
attempting to cause the Employer to discriminate against
him because of his participation in protected intraunion
activities. I also recommend that Respondent be ordered
to reinstate Robert Cummins to his former position as
union steward at the Employer's Conley, Georgia termi-
nal, or if that position no longer exists, then to a substan-
tially equivalent position.
On these findings of fact and conclusions of law and
on the entire record, I hereby issue the following recom-
mended2
ORDER
The Respondent Teamsters Local 79, Tampa, Florida,
its officers, agents, and representatives, shall'
1. Cease and desist from
(a) Threatening Robert Cummins with reprisals or at-
tempting to coerce the Employer, Carl Subler Trucking
Company, to discriminate against Robert Cummins in his
2 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.
terms and conditions of employment because of his par-
ticipation in protected intraunion activities.
(b) Removing Robert Cummins from his position as
union steward because he has filed an unfair labor prac-
tice charge with the National Labor Relations Board.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights under the Na-
tional Labor Relations Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer to reinstate Robert Cummins to his former
position as union steward with all rights and privileges
previously enjoyed, or to a substantially equivalent posi-
tion if his former position no longer exists.
(b) Post at its business copies of the attached notice
marked "Appendix." 3 Copies of the notice, on forms
provided by the Regional Director for Region 10, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
its members are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
s 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."
1136