The International Brotherhood Of Teamsters, Chauffeurs, Ware-Housemen And Helpers Of America (New Bed-Ford Seafood Cooperative Association, Inc.)

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1420 (N.L.R.B. 1986)

1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union No. 59, a/w the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America (New Bed-
ford Seafood Cooperative Association, Inc., Fuel
Division) and Thomas A. King and Luke Lome-
land . Cases 1-CB-6171(1) and 1-CB-6171(2)
31 July 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 24 March 1986 Administrative Law Judge
David L. Evans issued the attached decision. The
General Counsel filed exceptions and a supporting
brief and the Respondent 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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Thomas J. Morrison, Esq., for the General Counsel.
Bettina Borders, Esq., of Fairhaven, Massachusetts, for
the Respondent.
Robert F Murray, Esq., of New Bedford, Massachusetts,
for the Charging Parties.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This
matter was tried before me on 9 December 1985 in
Boston, Massachusetts . The complaint alleges that Team-
sters, Chauffeurs, Warehousemen and Helpers, Local
Union No. 59, a/w the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Respondent or the Union), has committed cer-
tain violations of the National Labor Relations Act. The
complaint is based on charges filed by Thomas A. King
and Luke Lomeland in Cases 1-CB-6171(1) and 1-CB-
6171(2), respectively, on 28 March 1985.' The complaint,
which issued on 19 August, alleges that agents of Re-
spondent have threatened employees with bodily injury
and that Respondent has refused to process grievances
filed by King and Lomeland and has otherwise failed to
represent King and Lomeland in violation of Section
8(b)(1)(A) of the Act. Respondent filed an answer admit-
' All dates hereafter are in 1985 unless otherwise specified
280 NLRB No. 166
ting jurisdiction but denying the commission of any
unfair labor practices.
On the entire record and my, observation of the de-
meanor of the witnesses, and after careful consideration
of briefs filed by Respondent, the Gener.d Counsel, and
the Charging Parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
New Bedford Seafood Cooperative Association, Inc.,
Fuel Division (the Employer) is a corporation with an
office and place of business in New Bedford, Massachu-
setts, where it is engaged in the wholesale distribution of
fuel products. Annually the Employer, in the course and
conduct of its business operations purchases fuel prod.
ucts valued in excess of $50,000 directly from suppliers
located at points outside the Commonwealth of Massa-
chusetts. Therefore, the Employer is now, and has been
at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is now, and has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Union has represented employees of the Employ-
er since about 1975. Respondent and the Employer have
entered into a succession of collective-bargaining agree-
ments, the last of which is effective 1 September 1983
through 31 January 1987. Relevant provisions of the cur-
rent agreement are as follows: z
ARTICLE 5 - TRIAL PERIOD
All new Regular Employees shall be hired on a
thirty (30) working day trial period and shall work
under the provisions of this Agreement within
which time they may be dismissed without protest
by the Union. After the thirty (30) days trial period,
they shall be placed on the Seniority List as regular
Employees in accordance with their date of hire,
provided, however, that an employee must work a
minimum of one hundred twenty (120) hours during
this thirty day trial period. In cases of discipline
within the thirty day period, the Employer shall
notify the Union in writing.
ARTICLE 7 - CLASSIFICATION[S] &
WAGES
F. Temporary Employee
2 Capitalization is original.
TEAMSTERS LOCAL 59 (NEW BEDFORD SEAFOOD)
A Temporary Employee shall be one who is
engaged and designated as a Temporary Employ-
ee. He shall perform any work assigned so long
as he is qualified to do so and is properly licensed
as required. Such Employee may perform any
category of work including barge and building
maintenance and repairs. A Temporary Employ-
ee shall receive the Probationer rate of pay re-
gardless of what license he holds.
G. Probationer
This individual will be in this category during
the conditions set forth in Article 5 Trial Period.
The person will be required to work as [sic] his
assigned classification and be under supervision
of the employer and a senior person within that
classification.
ARTICLE 8 - SENIORITY
8.1 Seniority, meaning the length of continuous
service with the Employer, qualifications and ability
of an Employee, shall govern in the case of work
available, promotions and reductions of the number
of Employees and in recalling to work of Employ-
ees previously laid off.
8.5 It is understood that paragraphs 8.1 through 8.4
above shall not apply to the Working Foreman or
to Temporary Employees. However a secondary se-
niority list of Temporary Employees shall be main-
tained, and used as the basis of promotion to the
status of Regular Employee. At such time as an
Employee moves from Temporary to Regular, then,
and only then, shall he begin to accrue any seniority
benefits.
The contract further has a "just cause" for discharges
clause , a grievance procedure, which has a 5-day time
limit for filing, and a binding arbitration provision.
Respondent's chief officer is Umberto (Battle) Cruz,
who is secretary-treasurer and executive officer . He is as-
sisted by various vice presidents and business representa-
tives including Robert C. Viera, who negotiated the
above-quoted contract with the Employer and at all
times material has been chiefly responsible for servicing
of that contract. Gerald (Gerry) Wheeler is manager of
the Employer; Jonathan Snyder is his assistant.
The above-quoted references to "temporary" employ-
ees are the first provisions for such employees in the suc-
cession of contracts between the Union and the Employ-
er. King was hired on 2 January by Snyder; at the time
Snyder told him nothing about being a temporary em-
ployee. Lomeland was hired on 14 January by Snyder; at
the time Snyder told Lomeland that he was being hired
as a temporary employee while the arbitrations of griev-
ances of other employees were being decided. In the
latter part of January, Snyder handed Lomeland and
King a sheet of paper on which was stated various as-
pects of their employment as temporary employees. The
document quotes article 7, section F, above, and lists cer-
1421
tain other aspects of the employment relationship includ-
ing the following statement:
There is no guarantee of your length of employ-
ment . It could be one day, a week, or a month. The
individuals in this category (temporary employees)
will be placed on a list . We will draw from the list
in the order they appear, starting with the first
name . The company has no obligation to maintain
anyone on the list and may drop them off and they
will be notified of such action.
There was no discussion between Snyder, King, and Lo-
meland at the time Snyder gave them this document.
The General Counsel does not dispute that Lomeland
and King were hired as temporary employees rather than
probationary employees.
On 28 February King and Lomeland were working on
a barge , the captain of which was Mark Viera, son of
Robert Viera. During the day King and Lomeland were
approached by Snyder and told to go to the office of
shop steward Manny Rapoza, the union steward. In the
office Snyder told King and Lomeland that they were
dropped from the list of temporary employees at the Co-
op, meaning they were discharged. Lomeland and King
asked for a reason , but Snyder replied, "I don't have to
give you a reason," and walked away. Lomeland left the
office and dock area and went aboard the barge on
which he had been working. While there he met Mark
Viera and told him that he hoped that he never found
out that Viera was behind the discharges.
At some point after leaving the premises of the Em-
ployer, King called the union hall and attempted to
speak with Viera.3 Whoever answered the telephone
agreed to set up a meeting the next morning with Viera.
On the following morning , 1 March, King and Lome-
land went to the office where they met with Viera and
Rapoza. King told Viera that he and Lomeland had been
discharged because of "some false allegations" which
had been made by Mark Viera. Viera stated that he
knew his son and that he was not a liar; King replied
that he was not a liar either. According to the credible
testimony of King, Viera responded:
I . . . heard there were threats made against my son
.. . whoever made these threats had better find a
hole to crawl in or leave town.
Viera also asked King who had told him that Mark had
made comments which had gotten him fired; King re-
plied that it was Wheeler. Viera replied that King should
call Wheeler and try to get him to come down to the
union office. King did make the call, and within 5 min-
utes Wheeler and Snyder arrived at the union office.
When Wheeler arrived King asked Wheeler if it were
not true that on the previous day he (Wheeler) had told
him (King) that Mark Viera had told him (Wheeler) that
he (King) and Lomeland had refused to work and
"goofed off' on overtime for 45 minutes and had or-
8 All references are to Robert Viera, rather than Mark , unless other-
wise specified
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dered Mark Viera around. Wheeler responded that this
was true. Viera asked Wheeler if he and Snyder could
attend a meeting in the first part of the following week
to "try and get this thing straightened out." Wheeler re-
plied that he and Snyder could attend such a meeting.
Wheeler and Snyder left and Viera told Lomeland and
King that he would try to set up a meeting between
them, himself, and Mark Viera to find out what had hap-
pened.
On Sunday morning, 3 March, Viera called Lomeland
and King and told them that Mark refused to attend the
meeting with them, but that he (Robert Viera) would
still meet with Snyder and Wheeler during the first part
of the following week. Viera told both King and Lome-
land that they were not to attend the meeting. King testi-
fied that he asked Viera why, and Viera replied, "You're
just not going to be there."
On Monday, 4 March, King and Lomeland went to
the office of Rapoza's steward at the Employer's dock.
Rapoza told them that they had 3 days to file grievances
over their discharge. King and Lomeland then signed
grievances which they left with Rapoza.
On 5 March, Viera and Rapoza met with Wheeler.
Viers testified that he asked Wheeler if the Company
would take King and Lomeland back to work, but
Wheeler refused, stating that under the contract he had
the right to terminate temporary employees at any time
he wished. At trial, Wheeler was asked if Viers had re-
quested that the Company return King and Lomeland to
their job at the 5 March meeting . Wheeler replied, "I'm
not sure that I recall whether he did or not, 'cause I
qualified the issue pretty much up front." Wheeler's pre-
trial affidavit states , "Robert Viera never asked me on
March 5th, March 1st or ever if the company would
consider putting either King or Lomeland back to
work." Just why Wheeler disclaimed memory of a re-
quest at trial, and why he denied any request in his pre-
trial affidavit, is difficult to understand; perhaps he was
thinking he could avoid any possible liability on the part
of the Employer by such answers. However, it is clear
that Viera was there to get the employees' job back, as
he testified, from the following exchange of letters be-
tween the parties. On the following day, Wheeler sent
Viera the following letter:
This letter is to follow-up our meeting of March
5, at which time the grievances were reviewed con-
cerning Luke Lomeland and Thomas King.
It is the position of the Management of the Co-op
that these two individuals were temporary employ-
ees and their work status under that job classifica-
tion places their employment at the will of the Co-
op. Furthermore, we hold the right to remove their
names from our temporary roster at any time with-
out cause . I believe you are aware that we brief
new temporary employees of these conditions of
employment when they start work. (copy enclosed.)
I felt after our discussion that we agree on these
points. If there is anything further, please contact me.
(The "copy enclosed" was a copy of the statement re-
garding temporary employee status which had previous-
ly been given to Lomeland and King by Wheeler, as
quoted above.) Thereafter, on 11 March, Viera wrote
Wheeler the following:
Teamsters Union Local 59 wishes to arbitrate the
New Bedford Seafood Co-op's decision to terminate
Thomas A. King and Luke Lomeland.
Viera testified that the reason for his request for arbi-
tration was that he had gotten to think about the matter
and decided it was better to submit a request for arbitra-
tion than to take a chance on getting the matter "thrown
out for timeliness just to cover all the bases." Viera tes-
tified that Wheeler at some point had agreed to arbitrate
"just the question of temporary employees."
On 23 April, Viera sent to the parties' permanent arbi-
trator the following request:
Because of pending grievances involving the ter-
mination of two employees, the New Bedford Sea-
food Co-op-Fuel Division, has agreed to arbitrate
the question of temporary employee rights.
Please arrange a date and time neutral for all
concerned.
Viers further testified that after submitting the request
for arbitration, he and Wheeler had further discussions
and they agreed that temporary employees were not pro-
tected by the contract. As testified by Viera:
In the meantime , after talking with Gerry it
became clear that that would be fruitless because
we're both going to say the same thing, what we
negotiated and what our intent was . So, it was just
a waste 'cause the arbitrator would really rule on
what we said. So, we never arbitrated that question.
On 16 August, 3 days before the complaint issued,
Viera, Cruz, and Respondent's attorney Philip N. Beau-
regard , and Lomeland, King, and their counsel Robert
L. Murray, met with Wheeler. At this meeting, Beaure-
gard and Murray requested Wheeler to reinstate King
and Lomeland. Wheeler did not reply on the ground that
he was not represented by counsel and all other parties
were. On the following day, Beauregard sent a letter to
Wheeler's lawyer stating:
RE: Thomas A. King, Luke Lomeland/Unfair
Labor Practice
Dear Mr. Barnet:
This letter follows the informal meeting held ear-
lier this week concerning the pending claims of
King and Lomeland against Local No. 59. Gerry
Wheeler attended and asked that I put these com-
ments in a letter to you.
Local No. 59 urges the employer to reinstate
King and Lomeland at the earliest possible time,
subject to the rights and seniority of other unit em-
ployees, and further , Local No. 59 urges the em-
ployer to reach an amicable financial resolution of
these former temporary [employees) claims for back
pay.
TEAMSTERS LOCAL 59 (NEW BEDFORD SEAFOOD)
The Union is aware of the company's interpreta-
tion of temporary employees' rights, particularly as
such apply to the claimants in this case.
Notwithstanding the Union's position on the ap-
plicable language , the Union asks that the employer
reconsider its decision to separate these two em-
ployees, and that they be afforded work opportuni-
ties consistent with other unit employees' rights to
work at the Fuel Co-op.
Please advise if you have any questions concern-
ing this , or whether the Union can assist you in re-
solving this matter.
On 5 September the employer's attorney replied to Beau-
regard:
Re: New Bedford Seafood Co-op./Thomas A. King
& Luke Lomeland
Dear Mr. Beauregard:
This letter is in response to yours of August 16,
1985 with reference to the above-captioned subject
matter.
We have reviewed your request for reinstatement
of the above-captioned former temporary employ-
ees. We have further reviewed the Collective Bar-
gaining Agreement and the understanding of the
parties and find that the company acted fully within
its rights in removing those employees from the list
of temporary employees.
We regret that we cannot offer either reinstate-
ment or re-employment to either Mr. King or Mr.
Lomeland.
To date of trial, King and Lomeland had not been re-
instated, and Respondent had done nothing more about
the grievance.
B. Analysis and Conclusions
The complaint alleges that Respondent has "refused
and failed to investigate and process the grievances"
which were filed by King and Lomeland on 2 March.
The complaint further alleges that Respondent's failure
was "because of the dispute between King and Mark
Viera, the son of Respondent's agent, Robert Viera," and
that by its conduct Respondent has failed to represent
King and Lomeland for reasons which are "unfair, arbi-
trary, invidious, and [the conduct constitutes] a breach of
the fiduciary duty owed the employees whom it repre-
sents," all in violation of Section 8(b)(1)(A) of the Act.4
The General Counsel contends that "the Union had an
obligation to file a grievance through to arbitration using
the procedures contained in the contract between Re-
spondent and the Employer." Respondent replies that no
arbitration decision could lawfully hold that the "just
cause" clause of the contract applies to temporary em-
ployees, and further reasons that "the duty of fair repre-
* In the brief the General Counsel does not argue that Viera's "crawl
in a hole" statement to the Charging Parties constitutes a threat , although
it was alleged in the complaint Assuming that this was an inadvertence,
and that the General Counsel has not abandoned the allegation , I would
nevertheless find that there was no threat because Viera 's statement was
so heavily qualified as to preclude a finding of any threatening element
1423
sentation does not require a union to use its limited re-
sources to argue in arbitration for rights which do not
exist under its collective-bargaining agreements ." I agree
with Respondent.
Under article 5, Trial Period, "new regular employ-
ees" are subject to a 30-day probationary period during
which time they may be discharged "without protest by
the Union." Being a probationary employee is a status
preferred to being a temporary employee, although both
categories of employees receive the same wages. After
30 days, a probationary employee becomes a regular em-
ployee with a higher grade of pay and more benefits; a
temporary employee can stay a temporary employee for-
ever and earn only the probationary employee's rate
throughout his tenure. A probationary employee has
some prospect of regular employment; a temporary em-
ployee does not, unless and until he is taken off the tem-
porary seniority list by the Employer and made a proba-
tionary employee.
The General Counsel acknowledges that a probation-
ary employee cannot file grievances; therefore, the Gen-
eral Counsel is placed in the position of arguing that an
arbitrator could find that temporary employees had a
right to file grievances while probationary employees did
not. At the hearing, I asked the General Counsel if it
were not illogical to conclude that the parties had in-
tended to negotiate greater rights for temporary employ-
ees than probationary employees. The General Counsel
replied, "It's conceivable." I asked the General Counsel
to brief me on the point because I did not find it to be
conceivable. The General Counsel does not mention the
point in brief, and my opinion has not changed.
As well as not being logical, the construction of the
contract as quoted above demonstrates that the parties
could not have intended to grant temporary employees
the right to invoke the grievance-arbitration processes
and, at the same time , deny such right to probationary
employees. Under article 5 of the extant contract, an em-
ployee does not have a right to file a grievance until he
has 30 days' seniority. "Seniority" is defined at article 8,
section 1, as "the length of continuous service with the
Employer." Article 8, section 5, expressly excludes the
service of temporary employees from computation of se-
niority for any purpose. Therefore, as long as an employ-
ee is classified as "temporary," he could never accumu-
late sufficient seniority credit to entitle him to file a
grievance.
The General Counsel sites the Steelworkers trilogy,'
and invokes the presumption of arbitrability for the argu-
ment that Respondent should have pursued the matters
to arbitration and allowed the arbitrator first to pass
upon the arbitrability of the issue. The presumption
comes into play, however, only when the parties to the
contract disagree on arbitrability; here, the parties are in
complete agreement that the grievances of King and Lo-
meland are not arbitrable. Moreover, assuming the pre-
sumption is properly invoked, it is overcome by the anal-
ysis of the preceding paragraph; the law does not require
5 Steelworkers v American Mfg. Co, 363 U.S 564 ( 1960), Steelworkers v
Warrior Navigation Ca, 363 U S 574 ( 1960), and Steelworkers v Enterprise
"heel Corp ., 363 U S 593 (1960)
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent to do a useless thing, and Respondent is not
required to pursue a grievance which it would assuredly
lose.
The General Counsel argues, alternatively, that even if
temporary employees such as King and Lomeland do not
have the right to have their grievances processed to arbi-
tration, the Union nevertheless breached its duty of fair
representation to King and Lomeland by not doing more
for them in their attempt to secure reinstatement and
backpay.
The essence of the General Counsel's contention in
this regard is that there was a conflict between the
Charging Parties and Mark Viera; therefore, Robert
Viera should have stepped aside and let another business
agent handle the matter.
Just what caused the discharges of the Charging Par-
ties is not in record.6 But even if there was some sort of
conflict between Mark Viera and the Charging Parties,
there is no reason to believe or find that successful pros-
ecution of the grievances would have, in any way,
worked to the detriment of Mark Viera. Therefore, there
is no "conflict of interest" between the Vieras and the
Charging Parties which would make Robert Viera's re-
fusal to step aside a breach of Respondent's duty to rep-
resent the employees.
The General Counsel further contends that Respond-
ent breached its duty of fair representation by failing to
accord the Charging Parties an opportunity to present
their side of the situation. The cases on which the Gen-
eral Counsel relies in this regard are premised on there
being a grievance which is arguably arbitrable. In this
case, as I have concluded above, the grievances were not
arbitrable under the contract between Respondent and
the Employer. Moreover, the Charging Parties were af-
forded an opportunity to present "their side of the story"
when they met with Robert Viera on 1 March at the
King's testimony that Wheeler had said that Mark Viera had com-
plained about the Charging Parties' conduct is hearsay
Union 's office; they further had an opportunity to
present their positions to the union steward , Rapoza,
who accepted the grievances on 3 March . Finally, the
Charging Parties were represented by an attorney at the
all-party meeting on 16 August . There is no evidence
that they or their attorney were precluded from present-
ing "their side" to Wheeler at that time.
Therefore, there is no foundation , in fact or law, for
the General Counsel 's contention that Respondent has
breached its duty of fair representation to Charging Par-
ties or has otherwise violated Section 8(b)(1)(A) of the
Act
CONCLUSIONS OF LAW
1. New Bedford Seafood Cooperative Association,
Inc., Fuel Division is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union No. 59, a/w the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent Teamsters, Chauffeurs, Warehousemen
and Helpers, Local Union No. 59, a/w the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America has not violated Section
8(b)(1)(A) of the Act as alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The complaint is dismissed in its entirety.
' 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