Teamsters Local 980 (Auburn Constructors)

National Labor Relations Board - Board Decisions

Feb 13, 1984

268 N.L.R.B. 894 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Truck Drivers, Warehousemen and Helpers
Union Local No. 980, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Auburn Constructors)
and James M. Campbell. Case 20-CB-5524
13 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 3 May 1983 Administrative Law Judge Earl-
dean V.S. Robbins issued the attached decision.
The Respondent filed exceptions and a supporting
brief and the General Counsel filed an answering
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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, General Truck Drivers, Warehousemen
and Helpers Union Local No. 980, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Santa Rosa, Califor-
nia, its officers, agents, and representatives, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs.
"(c) Expunge from its files and ask the Employer
to expunge from the Employer's files any reference
to the unlawful layoff and refusal to recall James
Campbell and notify this employee in writing that
it has done so and- that it will not use the layoff
against him in any way."
2. Substitute the attached notice for that of the
administrative law judge.
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.
We do note, however, that the judge erroneously found that Business
Agent O'Neill gave James Campbell a dispatch slip at the jobsite when
he reported for work in September 1981. (See judge's decision, fn. 7.)
Campbell's testimony about receiving a dispatch slip from O'Neill at the
jobsite referred to an incident which occurred in August 1982.
' We have modified the judge's recommended Order to include the ex-
punclion remedy recently approved by the Board in R. H. Macy & Co.,
266 NLRB 858 (1983).
268 NLRB No. 139
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 cause, or attempt to cause,
Auburn Constructors to lay off and refuse to recall
employees because they have exercised rights pro-
tected under Section 7 of the Act.
WE WILL NOT in any like or related manner re-
strain or coerce employees of Auburn Constructors
in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights
may be affected by an agreement requiring mem-
bership in a labor organization as a condition of
employment as authorized by Section 8(a)(3) of the
Act.
WE WILL notify Auburn Constructors and James
M. Campbell, in writing, that we have no objection
to his employment by Auburn Constructors and
WE WILL request his reinstatement.
WE WILL make James M. Campbell whole, with
interest, for any loss of wages and benefits suffered
by reason of the discrimination against him from
the date of his discharge to the date of his rein-
statement by Auburn Constructors to his former,
or substantially equivalent, job, or to the date that
he secures employment with some other employer
substantially equal to that which he formerly had
with Auburn Constructors.
WE WILL expunge from our files and will re-
quest the Employer to expunge from its files any
reference to our attempt to cause Auburn Con-
structors to lay off and refuse to recall James M.
Campbell to the Warm Springs Project and notify
him, in writing, that this has been done.
GENERAL TRUCK DRIVERS, WARE-
HOUSEMEN AND HELPERS UNION
LOCAL No. 980, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge:
This case was tried before me in Santa Rosa, California,
on December 9 and 10, 1982. The charge was filed by
James M. Campbell, an individual, herein called Camp-
bell, on February 11, 1982, and served on General Truck
894
TEAMSTERS LOCAL 980 (AUBURN CONSTRUCTORS)
Drivers, Warehousemen and Helpers Union Local No.
980, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called
the Respondent or Local 980, on February 16, 1982. The
complaint which issued on April 23, 1982, alleges that
the Respondent violated Section 8(bXl)(A) and (2) of the
National Labor Relations Act, as amended, herein called
the Act. The basic issue herein is whether the Respond-
ent caused Auburn Constructors to lay off and refuse to
recall Campbell because he had opposed the Respond-
ent's secretary-treasurer in an intraunion election and
thereafter continued as a rival to the Respondent's
present leadership.
On the entire record,' including my observation of the
demeanor of the witnesses, and after due consideration of
the posthearing briefs submitted by the parties, I make
the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Auburn Constructors,
herein called Auburn, a joint venture, with an office and
place of business in Healdsburg, California, has been en-
gaged in performing heavy construction work for the
building of a dam, herein called the Warm Springs
Project, and has been and is now an employer-member
of the Associated General Contractors of California,
Inc., herein called AGC.
At all times material herein, AGC has been an organi-
zation composed of employers engaged in construction
work which exists for the purpose, inter alia, of repre-
senting its employer-members in negotiating and adminis-
tering collective-bargaining agreements with various
labor organizations, including the Respondent. During
the 12-month period ending March 31, 1982, members of
AGC, collectively, in the course and conduct of their
business operations described above, derived gross reve-
nues in excess of $500,000, and during the same time
period purchased and received at their respective Cali-
fornia facilities products, goods, and materials valued in
excess of $50,000 directly from points outside the State
of California.
The complaint alleges, the Respondent admits, and I
find that Auburn is now, and at all times material herein
has been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II1. LABOR ORGANIZATION
The complaint alleges, the Respondent admits, and I
find that the Respondent is now, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
The Charging Party's motion to correct the official transcript is
hereby denied as the transcript accurately reflects that portion of the pro-
ceeding which is the subject of the motion.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Campbell was secretary-treasurer and chief executive
officer of the Respondent from January 1, 1975, until
December 31, 1980. He was succeeded in his position by
Alfred Andrade. Andrade was initially employed by the
Respondent as an organizer and business agent from Jan-
uary 2, 1978, until October 13, 1978, when he was laid
off by Campbell. During this period, he was a member of
the Respondent and worked under Campbell's supervi-
sion. Thereafter, Andrade registered on the Respondent's
out-of-work list and sought employment as a truckdriver.
On February 5, 1979, Andrade filed an unfair labor prac-
tice charge against the Respondent and subsequently a
complaint issued alleging that the Respondent violated
Section 8(b)(1)(A) of the Act by imposing a $250 fine on
Alfred Andrade "because of Andrade's intra-union sym-
pathies and activities in opposition to the incumbent sec-
retary-treasurer of Respondent, James Campbell," and by
advising Andrade that the Respondent would not accept
his membership dues until he paid his fine; and that the
Respondent violated Section 8(b)(2) and (IXA) of the
Act by causing two employers to refuse to employ An-
drade for reasons proscribed by the Act and by attempt-
ing to cause one of these employers to terminate An-
drade's employment for reasons proscribed by the Act.
Subsequently, the Board found that the Respondent vio-
lated Section 8(b)(2) of the Act by attempting to cause
an employer to discriminate against Andrade because of
Campbell's personal hostility towards Andrade.2
In June 1980, Andrade wrote Campbell inquiring in
regard to his eligibility to run for office. In September
1980, Campbell notified Andrade that he was eligible to
run for office. In October 1980, both Andrade and
Campbell were nominated for secretary-treasurer of the
Respondent. In an intraunion election held on November
22, 1980, Andrade was elected as secretary-treasurer.
During that same election, Russell O'Neil, a member of
the Respondent since the fall of 1978, was elected to a
position as business representative.
Following the election, Campbell expressed to various
members of the Respondent his intent to "hold his op-
tions open" to run for office at a later date. He has con-
tinued since then to express this same view. On April 16,
1981,s Campbell attended a membership meeting, the
agenda of which included a vote on a proposal to in-
crease initiation and reinitiation fees recommended by
Andrade and the executive board. According to Camp-
bell, prior to the commencement of the meeting when he
was standing in line to receive a ballot, some of the
members asked him what he thought of the proposal,
and he said he did not think it was necessary. A few
minutes later, after Campbell had received his ballot and
was seated, Andrade called Gary Mann, the person who
had issued Campbell a ballot, over to where Andrade
and Union President Robert G. Martin were talking. Im-
mediately after speaking to Andrade and Martin, Mann
I Teamsters Local 980 (Neilson Freight Lines), 249 NLRB 46 (1980).
s All dates hereinafter will be in 1981 unless otherwise indicated.
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approached Campbell and told him Andrade said Camp-
bell was on withdrawal and was not eligible to vote, and
asked Campbell to return his ballot. Campbell then told
Andrade that he had a paid-up dues receipt and he was
eligible to vote. Andrade said that Campbell was retired,
he was on a withdrawal card, and was not allowed to
take any part in the meeting. Campbell again said he had
a paid-up dues receipt and did not have a withdrawal
card; to which Andrade replied, "Don't worry, you will
get one." Whereupon Campbell returned the ballot to
Mann. The membership voted to increase the initiation
fees.
About April 17 or 18, Campbell received a withdrawal
card in the mail dated April 10. This unsolicited with-
drawal card was accompanied by a letter from Andrade,
the body of which reads:
Enclosed you will find your withdrawal card
issued pursuant to the following provision of the
International Constitution.
Article XVIII, Section 5 of the International
Constitution requires that when you leave the craft
or if you become unemployed or retire, you must
request a withdrawal card from your Local Union.
If you do not request a withdrawal card, your
Local Union is obliged to issue the withdrawal card
after the period of time and subject to the condi-
tions specified in the International Constitution
and/or the Local Union bylaws.
Campbell continued to express disagreement with An-
drade's policies to various union members, including his
opinion that Andrade was incurring unnecessary expense
by having various business agents accompany him to
grievance hearings and conventions, et cetera. 4 He also
initiated an intraunion appeal regarding the issuance of
the withdrawal card and a protest of the increase in initi-
ation fees. On July 14, Campbell was notified that the ex-
ecutive board of Teamsters Joint Council No. 7 had de-
termined that the withdrawal card was improperly issued
and that Campbell's membership should be reinstated;
but that, in accordance with the International constitu-
tion, the executive board of Joint Council No. 7 could
not hear his protest on the increase of initiation fees. By
letter dated July 21, Andrade notified Campbell that in
accordance with the decision of the Joint Council No. 7
executive board his membership had been reestablished
retroactively to show his active membership through
June 1981. The letter further stated:
A new withdrawal card has been issued effective
July 1, 1981, pursuant to Article XVIII, Section
5(a) of the International Constitution which requires
a withdrawal card be issued immediately after six
months of unemployment. Since you have been un-
employed between January 1, 1981 and June 30,
1981, the withdrawal card is mandatory under the
constitution.
4 The International constitution requires that to be eligible to run for
local union office a person must be a member in good standing for 2
years prior to the nominiation. A member on withdrawal is not a member
in good standing.
Subsequently, Campbell filed charges against Andrade
regarding the issuance of this withdrawal card. By letter
dated February 26, 1982, Campbell was notified by the
Respondent's president that it was the decision of the
Respondent's executive board that his request to appear
before the Board pertaining to his charges against An-
drade be deferred until such time as the charges filed by
Campbell with the National Labor Relations Board are
resolved.5 By letter dated April 26, 1982, Campbell re-
quested to deposit his withdrawal card and resume active
membership in the Respondent. By letter dated April 29,
1982, Andrade denied this request on the basis that
Campbell was presently on retirement status and that, in
addition, the constitution provides that acceptance of a
withdrawal card may be refused where adverse employ-
ment conditions exist; and further denied Campbell's re-
quest for a meeting concerning dispatch procedures.
B. The Alleged Discrimination
Commencing in February 1981 and continuing at least
through April 1982, Campbell has registered each month
on both the construction out-of-work list and the movie
out-of-work list except in September. He received his
first dispatch from the construction out-of-work list on
August 24 to commence work on August 25. According
to Campbell, on August 24, dispatcher Stella Rovetti
telephoned him and asked if he would be interested in a
dispatch to the Warm Springs Project as a fill-in driver.6
Campbell said he would. Later that day, Campbell went
into the union hall to pick up his dispatch slip. At that
time, he tendered his dues for August and September,
but was told that Andrade would have to be consulted.
After a short delay while someone went to Andrade's
office, Campbell was informed that they were not sure
he would be working in September, and Andrade said he
could work off of his hiring hall fees for August. Camp-
bell protested, stating that normally if one works in a
month one pays dues for that month. He was again told
that Andrade said he could work on the hiring hall fee
for the month of August. His dues tender was not ac-
cepted.
Campbell worked at the Warm Springs Project on
August 25, 26, and 27. At the end of the shift on August
27, Willard "Swede" Kline, the teamster foreman, told
him to report to work on August 28. Later that day,
Kline called Campbell at home, told him that some
equipment had broken down so he would not be needed
the following day and that Kline would call him when
he needed him. Campbell was not recalled to work until
the second week in September when Kline called him on
Friday and asked him to report to work the following
Monday morning. 7 He was again called to work by
Kline on September 14 to work on September 15. He
worked on September 15 and 16 and on September 16;
Kline instructed him to return to work the following
s The validity of the withdrawal card has not been finally determined
by the Union and such validity is not at issue herein.
s Essentially the employee filling this position would be on call to fill
in for absent full-time employees.
7 On Monday morning, according to Campbell, O'Neil walked over to
him at the jobsite and gave him a dispatch slip.
896
TEAMSTERS LOCAL 980 (AUBURN CONSTRUCTORS)
day. However, on the evening of September 16, Kline
telephoned Campbell at home. According to Campbell
Kline told him they had a problem, that he had arranged
with O'Neil to meet with O'Neil and Andrade to see if
they could settle a grievance filed by the Union, but that
O'Neil later informed him that the meeting was off and
Andrade had said they could not meet as long as Camp-
bell was working on the job. Kline then said he could no
longer employ Campbell.
On September 10, the Respondent filed a grievance
with Auburn Constructors, the contractor at the Warm
Springs Project. The "Statement of Facts" portion of the
grievance reads, "Calling man to work who is not regis-
tered on hiring hall list at union hall." Under "Relief
being Sought," the grievance further states, "Pay for first
man on list from September 9, 1981 until grievance is
heard for each day of violation."
The grievance is purportedly based on the following
provision of the contract:
Section 4-CALLBACK AFTER LAYOFF
An Employee laid off due to inclement weather
or equipment breakdown not in excess of thirty (30)
days, shall be recalled to employment on the
project from which he was laid off before the Em-
ployer calls the Employment Office in the locality
for new registrants.
An Employee laid off due to a reduction in force
shall be given a lay-off slip with a copy sent on the
same date to the Union, and may be recalled by the
Employer or may be redispatched by the Employ-
ment Office to employment on the project from
which he was laid off regardless of his position on
the registration list. For the purpose of this Section
only, an Employee so re-dispatched shall not be
considered as a new registrant for employment
under Section 8 if re-dispatched to the classification
from which he was laid off.
Except as otherwise mutually agreed by the
Union in the locality, said Employees shall be re-
called through the Employment Office in the locali-
ty.
An Employee who fails to report for work
within forty-eight (48) hours in response to a call-
back by his Employer may be regarded by said Em-
ployer as having quit his employment.
O'Neil testified that despite the description of the
grievance as "calling man to work," the grievance does
not refer to Campbell or to any one person; rather, it re-
lates to the general practice of contacting employees di-
rectly to return to work at the Warm Springs Project
without going through the hiring hall, as required by the
collective-bargaining agreement. According to him, he
first learned of this violation of the collective-bargaining
agreement around September 9 when he received a tele-
phone call from a teamster employee at the project,
Larry Drake. Drake said he had been laid offs and there
8 He did not mention the circumstances of his layoff.
were people still working who had not been there as
long as he had. O'Neil said there was no seniority, that it
was a jobsite, not a stationary construction yard. Drake
asked how they could lay off someone for a week, recall
him, lay him off after a day or two, and then call them
back 2 or 3 days later. O'Neil said they were not allowed
to do so under the contract unless they issued a layoff
slip. Drake said Auburn had not been issuing layoff slips,
that he knew of two, three, or four people who would
work 1 or 2 days, be laid off for a week or longer, and
then recalled; and that he knew these persons were not
registering on the out-of-work list. According to O'Neil,
Drake specifically mentioned the names of three persons,
one of whom was Campbell; however, he does not recall
the names of the other two persons. O'Neil said he
would look into the matter and if there were a violation
he would file a grievance. Drake specifically said, as to
Campbell, that he and "a couple of other guys" who had
been working all summer were laid off and Campbell,
who had just been dispatched to the job, was still work-
ing. O'Neil further testified that, within a day or two
after Drake's telephone call, a couple of other persons,
whose names he does not recall, telephoned him and
made the same general complaint.
According to O'Neil, on the morning of September 9,
he spoke to someone in the office at the project, and told
her he had a complaint, that they were laying employees
off for 1, 2, or 3 days and recalling them. This person
said yes, if they ran out of work they laid them off, and
would then recall them. O'Neil said that according to the
contract the Union had to be provided with a layoff slip.
This person said they had not been doing that. Later that
day, O'Neil spoke to Kline by telephone. He informed
Kline that he was filing a grievance against Auburn Con-
structors for laying off and recalling employees without
issuing layoff slips. Kline said he had the right to do that.
O'Neil said, no, you do not unless it is for equipment
breakdown or inclement weather. Kline said, "go ahead
and file your grievance." O'Neil denies that Campbell or
Andrade was mentioned in this conversation.
According to O'Neil, he then drafted the grievance
and took the draft to Andrade's office for approval. An-
drade inquired what the grievance was about. O'Neil
said Auburn Constructors was failing to issue layoff slips
and that the Union had no way of knowing who was
working there. Andrade initialed the draft indicating his
approval. Both O'Neil and Andrade testified that this
was their first discussion of the grievance and the inci-
dents leading thereto. O'Neil testified that the only other
time he spoke to Andrade regarding this grievance was
when he told him he was going to the hearing on the
grievance and asked what position he should take. An-
drade said the Respondent would drop the backpay issue
if Auburn Constructors would follow the collective-bar-
gaining agreement and issue the layoff slips.
Andrade also denied that the grievance refers to
Campbell or to any specific individual. He testified that
he did not know why the reference was made to a
"man" in the statement of the grievance. He admitted
that he was aware at the time he signed the grievance
that Campbell was one of the individuals who had alleg-
897
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edly been recalled to work without going through the
hiring hall.9
Kline testified that in early August he telephoned Ro-
vetti and inquired whether she had someone available to
work as a fill-in employee. He said employees often did
not show up so he needed someone close by whom he
could call in the morning.'0 He said he could not guar-
antee full-time work, it might be a day, 2 days, or an
entire week, he just needed someone he could call back
and forth like that. Rovetti said she would find someone.
In response to this request, an employee named Ford,
whose first name Kline does not know, was dispatched
the following morning. After 2 or 3 days, Kline notified
Rovetti that he had assigned Ford to a full-time job re-
placing a discharged employee, and requested that she
dispatch someone to replace Ford as a fill-in driver. In
accordance with this request, Campbell was dispatched
to the job on the following day. Campbell worked 3 or 4
consecutive days. The following day there were no ab-
sences so Kline told Campbell that he would call when
he needed him again. Campbell was not issued a layoff
slip. Sometime in September, Kline telephoned Campbell
and instructed him to report to work the following
morning. Kline did not telephone the Union. Campbell
worked for several days and was then told that there
was no work for him and that Kline would telephone
him when he needed him. According to Kline, when he
explained to Rovetti his need for a fill-in driver, they did
not discuss whether layoff slips would be used. He
merely explained that he needed someone who would be
able to work whenever a full-time employee did not
show up for work or was otherwise absent from the job-
site.
Kline further testified that sometime between Camp-
bell's first dispatch to the Warm Springs Project and
when he was called to work at the project the second
time one of the office employees called him on his truck
radio, told him that Rovetti had telephoned and wanted
to know how many hours Campbell had worked, and
asked if Kline wanted her to give Rovetti that informa-
tion. Kline instructed her to do so. Kline further testified
that on two later occasions his secretary called him on
the radio and told him that Rovetti was inquiring wheth-
er Campbell was working. On the first of these occa-
sions, Kline said Campbell was not working. The second
occasion was shortly before Campbell returned to work
at the project the last time. On that occasion, Kline an-
swered that Campbell was not working but that he
planned to call him back to work the following Wednes-
day.
O'Neil admits that he inquired of Auburn as to wheth-
er Campbell was working. When asked why he made
this inquiry, he testified, "I was checking to find out if
he was working. Somebody told me he had been work-
ing out there and I checked to find out because at that
time I didn't even know he had been dispatched to the
9 The contract permits an employer to directly recall or request by
name persons who had previously been laid off.
10 The Warm Springs Project is by far the largest in size and the long-
est in duration of any construction project in the Respondent's district.
According to O'Neil, during both the 1981 and 1982 peak seasons-June
and July-the maximum number of Teamsters-represented employees
working at the Project at any one time was approximately 80.
dam and then I called back because somebody wanted to
find out how many hours he put in because he was
drawing a pension and he was only allowed to work so
many hours a month. If he works over 49.9 hours a
month, then he's not qualified for his pension." Yet when
he was asked who the someone was who wanted to
know whether Campbell was working, he insisted that
on both occasions he was the one who wanted to know;
on the first occasion because he did not know that
Campbell had been dispatched and the dispatcher was
not in the hall at the time, and the second time because
of the pension requirement that Campbell work no more
than 49.9 hours a month. He admits, however, that he
has no responsibility for distribution of pension benefits.
Kline also testified that, in September, O'Neil tele-
phoned him and told him he was submitting a grievance.
When Kline inquired as to why, O'Neil said it was on
Campbell. Kline asked what they had done. O'Neil said,
you called him back to work. Kline said, I do that all of
the time, what are you talking about. O'Neil said, "I
don't know, Andrade called me from the City and told
me to call you and tell you I was mailing you a griev-
ance." According to Kline, O'Neil said nothing about
layoff slips in this conversation.
Kline also testified that later that day, in his presence,
one of the secretaries called Rovetti at his request and
told her that Kline and Project Manager Chuck
Weidmer wanted to meet with Andrade and O'Neil over
"this Campbell deal." The secretary then turned to Kline
and said, "Stella's going to take care of it." The follow-
ing day, Kline received the grievance from the Union.
Within the next day or two, Weidmer told Kline that
Andrade would not meet with them because he could
not have his lawyer present. Kline said he was going to
let Campbell go, that he was sick and tired of this mess
and was not going to get in the middle of it any more.
According to Kline, he considered the grievance strictly
as a political deal and since the job would last for an-
other year and a half, he did not intend to be in the
middle. That evening, according to Kline, he telephoned
Campbell at home, told him he could no longer use him,
and he was sending him a reduction-in-force slip. He
does not think he told Campbell what Weidmer had told
him, but he does not recall. The following morning,
Kline telephoned O'Neil and told him he had given
Campbell a reduction-in-force notice. O'Neil said,
okay. "
The grievance was placed on the agenda for the
monthly board of adjustment meeting held on October
20. However, when no representative of the Respondent
made an appearance, consideration of the grievance was
postponed, at O'Neil's request. At the November board
of adjustment meeting, Auburn Constructors was repre-
sented by an AGC representative who stated that he
would inform the Warm Springs Project manager that
layoff slips had to be issued in accordance with the col-
lective-bargaining agreement when an employee is laid
off. O'Neil further testified that at the December board
of adjustment meeting, prior to the commencement of
"I According to Kline, he issued a reduction-in-force notice when he
did not need an employee any longer.
898
TEAMSTERS LOCAL 980 (AUBURN CONSTRUCTORS)
the meeting, the AGC representative asked him how
things were going with Auburn. O'Neil replied that he
really did not know, that they had not called him. The
AGC representative said he would get in touch with
Auburn and make sure they were following the agree-
ment. O'Neil did not pursue the matter any further nor is
there any record evidence that he made any subsequent
contact with the AGC representative in this regard or
any effort to police Auburn's compliance. He did testify
that, after the grievance was resolved, Auburn issued
layoff slips whenever they laid someone off unless it was
due to inclement weather or equipment breakdown.
However, as set forth below, both Kline and Karen
Ainsworth, the Auburn office manager, refute this.
Kline testified that, prior to the September 10 griev-
ance, if an employee were being recalled to the same
piece of equipment after a short layoff, it was his prac-
tice to call the employee directly and not call the Union.
He further testified that the Union was aware of this
practice, that in 1978, prior to the commencement of the
Warm Springs Project, he met with Campbell. During
this meeting, he asked Campbell about the recall proce-
dure when an employee had been laid off. Campbell said
to call them back. He then asked about the rehires and
Campbell said you can rehire, but you have got to call
us. According to. Kline, a rehire refers to someone to
whom he has given a reduction-in-force notice. Under
the agreed-upon procedure, he was required to call the
Union before rehiring such a person, but, in the case of a
person laid off just for a week or so, he was not required
to call the Union, he just called the employee directly.
Kline further testified that he has continually called em-
ployees back directly from short layoffs at the project
approximately 400 or 500 times. Yet, prior to September
10, the Union never objected to this practice. According
to him, variations in daily staffing requirements are typi-
cal of construction projects such as the Warm Springs
Project. The project has approximately 500 different op-
erations so they might do one operation one day and
something else the next day. Thus, on an average of
every other day somebody is on a short layoff. Kline
also testified that since September 10 his practice in re-
calling employees directly from these short layoffs has
not changed and the Union has never again objected to
this practice. However, he further testified that when the
project shut down for the 1980-81 rainy season winter
layoff no one was issued a layoff slip. Rather, he just
sent the employees home and told them they would be
called back when the weather was good,' 2 which he did
directly, without going through the hiring hall. In 1982,
after the winter layoff, Kline gave Ainsworth' s a list of
the employees he wanted recalled and instructed her to
telephone the Union first and ask what procedure they
wanted them to follow, whether they wanted Auburn to
call the employees directly or whether the Union wanted
to call them. Later Ainsworth informed him that she was
'I If there was someone whom Kline did not want to return after the
rainy season, Kline issued that person a reduction-in-force layoff slip.
Also, on occasion a reduction-in-force layoff slip would be issued at the
request of the employee.
ns Ainsworth is usually the person who, on Kline's instructions, con-
tacts the Respondent's dispatcher regarding layoffs or requests for per-
sons to be dispatched to the project.
told to call the employees directly and to notify the
Union as to who was called.
Ainsworth further clarified Auburn's practice in her
testimony that if there is a change in operation employ-
ees are sent home and then, when another operation
starts up, they are called back without notifying the
Union. According to Kline, this may also happen when
there is a temporary shutdown of an operation. No layoff
slip is issued if the employee is being kept on the payroll,
regardless of the reason. The Union is called whenever
there are not enough people on the payroll to fill avail-
able positions. The Union is also called when Auburn
wishes to recall people from a long layoff.
O'Neil denies that he called Kline and told him that
the grievance he was filing was related to Campbell or
that he told Kline he did not know why the grievance
was being filed, but that Andrade had called him from
the city and told him to file it. He further testified that
he has never been advised by an official or supervisor of
Auburn or an official or dispatcher of the Union, or
anyone else, that in 1978 there was some sort of agree-
ment between Campbell and Kline that persons being
laid off for short periods of time need not receive layoff
slips and need not be called back through the hall. Ac-
cording to him, until September 1981 he had no reason
to believe that Auburn was in fact laying people off and
recalling them for short periods of time--other than for
equipment breakdowns and inclement weather-without
giving them layoff notices and without calling them back
through the hall. He also testified that when the season
started up again at the project in 1982 and up until the
time of his layoff it never came to his attention that
Auburn was continuing to lay off people for short peri-
ods of time and recalling them without giving them
layoff notices or recalling them through the union hall.
According to O'Neil, the Warm Springs Project is the
largest project that he has serviced. In 1981, he was at
the project site three times during the season, and during
1982 he visited the site at least two times. Andrade also
testified that no one told him when he assumed office
that Kline and Campbell had reached some kind of an
agreement in 1978 that employees laid off for short peri-
ods of time would not be given layoff slips and would
not be recalled through the union hiring hall. Andrade
denies that he ever telephoned O'Neil from San Francis-
co, instructing him to file a grievance against Auburn.
C. Conclusions
Although there is some conflict in the testimony as to
exactly what days Campbell worked for Auburn, it is un-
disputed that he worked on three different occasions in
August and September for periods of less than a week's
duration. On the first occasion, he was dispatched by the
Respondent. On the second occasion, although he was
recalled directly by Auburn, the Union was evidently
notified since Rovetti telephoned him a few minutes later
regarding returning to work at the project and, on the
following day when he was at work at the project,
O'Neil gave him a dispatch slip. On the third occasion,
he was recalled directly by Kline and the Union was not
notified.
899
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit Kline that he laid off Campbell, and thereafter
never recalled him as a direct result of the filing of the
September 10 grievance because he believed the filing of
the grievance was motivated by intraunion political con-
siderations and he did not want to be "caught in the
middle." Thus, Campbell's layoff and the refusal to recall
him appear to be clearly unlawful. The question is
whether the Respondent caused or attempted to cause
the unlawful discrimination. Respondent argues that it
did not, since it never requested that Campbell be laid
off. However, this is not dispositive of the issue for un-
lawful discrimination may be caused by less than an ex-
press demand and an intent to do so may be inferred
from the circumstances. Food & Commercial Workers
Local 454 (Central Soya of Athens), 245 NLRB 1295
(1979).
The Respondent further argues that the requisite intent
cannot be inferred since the Respondent only sought to
have Auburn recall employees through the Respondent's
hiring hall as required by the collective-bargaining agree-
ment and, thus, resolution of the grievance in the Union's
favor would not have adversely affected Campbell's em-
ployment. In the circumstances, I find this view of the
Respondent's conduct less than persuasive. Andrade and
O'Neil had occupied their positions with the Respondent
and O'Neil had serviced the Warm Springs Project for
more than 8 months, a period which encompassed a peak
season where some one or more of a unit employee com-
plement of approximately 80 persons were on a short
layoff or being recalled from one at least every other
day. I credit Kline and Ainsworth that these persons
were recalled directly without submitting a request to, or
notifying, the Union. Yet Respondent never protested
until Campbell was involved.
I am not persuaded by the testimony that neither An-
drade nor O'Neil had knowledge of this practice. Con-
sidering the size of and the nature of the operation at the
Warm Springs Project, the lack of request for recalls or
notification thereof14 must have put the Respondent on
notice that some such practice existed. Its failure to in-
vestigate the possible existence of such a practice indi-
cates that Andrade and O'Neil either had actual knowl-
edge of the Respondent's agreement to such a practice,
had acquiesced in it, or were not interested in whether it
existed. This conclusion is buttressed by the fact that
after Campbell was discharged Auburn continued fol-
lowing this practice and the Respondent neither protest-
ed nor sought to police Auburn's adherence to the Re-
spondent's interpretation as to the requirements of the
collective-bargaining agreement in this regard. Its inter-
est was only manifested when Campbell was involved.
I do not credit Andrade and O'Neil that the grievance
was a general one and not specifically related to Camp-
bell. On its face, the grievance refers to "man." Kline
testified that O'Neil told him the grievance concerned
Campbell. I credit Kline, who impressed me as a candid,
reliable witness who was endeavoring to tell the truth.
Further, although O'Neil testified that Drake named
three persons who had been recalled directly, O'Neil
could only recall the name of one-Campbell.
14 In this regard, I note that the Respondent adduced no evidence to
refute the testimony that such request or notification was not made.
As to the Respondent's contention that the grievance
was filed in response to the complaints of Drake, it is ap-
parent from the testimony that Drake was not complain-
ing about the failure to issue layoff slips or to recall
through the hiring hall. He was complaining that he had
.been laid off and Campbell was still working. The al-
leged similar complaints made by other employees were
made after the grievance was filed.
Even assuming arguendo that the collective-bargaining
agreement requires that employees laid off under the cir-
cumstances involved herein must be recalled through the
hiring hall, I find that, considering the Respondent's ap-
parent lack of interest in Auburn's practice of recalling
laid-off employees directly from all short layoffs except
when the practice involved Campbell, it had, at a mini-
mum, acquiesced in such practice; and that, in view of
this acquiescence and O'Neil's describing of the griev-
ance to Kline as one concerning Campbell, the Septem-
ber 10 grievance was not in protest of a general practice
but related specifically to the recall of Campbell.
I also find that in the context of the several inquiries as
to whether Campbell was working, and the singling out
of the Campbell recall for the Respondent's sole protest
of Auburn's recall practice, that the September 10 griev-
ance had the foreseeable consequence of indicating to
Kline that continued employment of Campbell would
result in problems with the Union. In the context of
Campbell's continued opposition to Andrade's leadership,
the continuing dispute as to Andrade's issuance of a
withdrawal card to Campbell, thereby depriving him of
the right to fully participate in intraunion affairs, and
O'Neil's admission to Kline that the grievance was being
filed pursuant to Andrade's instructions, I find this conse-
quence was intended. Further, in these circumstances,
and since Campbell was hired as a fill-in driver, I find
that when Kline told O'Neil that he was giving Camp-
bell a reduction-in-force notice O'Neil should have rec-
ognized the likelihood that this action was a consequence
of the filing of the grievance and that he had an obliga-
tion to clarify any lawful objective of the grievance and
to inform Kline that the Union had no objection to
Campbell's continued employment.
In all of the circumstances, I find that, by filing the
September 10 grievance, the Respondent intended to
cause Auburn to lay off and refuse to recall Campbell
and that such conduct was motivated not by any con-
cern over the integrity of the collective-bargaining
agreement, but rather by Campbell's protected intraunion
activities. Accordingly, I find that the Respondent there-
by violated Section 8(bXl)(A) and (2) of the Act. Food &
Commercial Workers District 227 (Kroger Co), 247 NLRB
195 (1980).
CONCLUSIONS OF LAW
I. Auburn Constructors is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By causing Auburn Constructors to lay off and
refuse to recall James M. Campbell because he engaged
900
TEAMSTERS LOCAL 980 (AUBURN CONSTRUCTORS)
in intraunion activities protected under Section 7 of the
Act, the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(bX2) and (IXA) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that the
Respondent cease and desist therefrom and take certain
affirmative action in order to effectuate the purposes of
the Act.
Since I have found that the Respondent attempted to
cause, and caused, Auburn Constructors to lay off and
refuse to recall James M. Campbell, it is recommended
that, to the extent it has not already done so, the Re-
spondent immediately notify Auburn Constructors that it
has no objection to Auburn's employment of James M.
Campbell as a fill-in driver or for any other position for
which he is qualified and request his reinstatement. I
shall further recommend that the Respondent make
Campbell whole for any loss of wages and benefits suf-
fered by reason of the discrimination against him from
the date of his layoff to the date of his reinstatement by
Auburn Constructors to his former or substantially
equivalent job, or to the date he secures substantially
equivalent employment with some other employer, less
his net earnings during this period. The loss of earnings
shall be computed in the manner prescribed in F. W
Woolworth Co., 90 NLRB 289 (1950), with interest com-
puted in accordance with Board policy set out in Isis
Plumbing Co., 138 NLRB 716 (1962), and Florida Steel
Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I recommend the following
ORDER15
The Respondent, General Truck Drivers, Warehouse-
men and Helpers Union Local No. 980, International
"1 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.
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Santa Rosa, California, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to case, Auburn Construc-
tors to discriminate against James M. Campbell, or any
other employee, because they engaged in activities pro-
tected under Section 7 of the Act.
(b) In any like or related manner restraining and co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Notify Auburn Constructors and James M. Camp-
bell, in writing, that it has no objection to Campbell's
employment and request his reinstatement.
(b) Make James M. Campbell whole for any loss of
earnings he may have suffered by reason of the discrimi-
nation against him, as set forth in the section of this De-
cision entitled "The Remedy."
(c) Post at its offices and meeting halls a copy of the
attached notice marked "Appendix." s' Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Forward to the said Regional Director signed
copies of said notice for posting by Auburn Construc-
tors, if it is willing, at the Warm Springs Project for 60
consecutive days in places where notices to employees
are customarily posted.
(e) Notify the Regional Director within 20 days from
the date of this Order what steps the Respondent has
taken to comply.
1' 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."
901