Warehouse Union Local 860

National Labor Relations Board - Board Decisions

Feb 22, 1977

228 N.L.R.B. 364 (N.L.R.B. 1977)

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehouse Union Local No. 860, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Capel Kiang
Companies) and Lawrence Sayre . Case 20-CB-
3848
February 22, 1977
ORDER REMANDING PROCEEDING TO
ADMINISTRATIVE LAW JUDGE
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On October 1, 1976, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Administrative Law Judge concluded that
Respondent , Warehouse Union Local No. 860, did
not seek to have Charging Party Sayre laid off by his
employer, Capel Kiang, and therefore did not violate
Section 8(b)(1)(A) and 8(b)(2) as alleged in the
complaint. The Administrative Law Judge's conclu-
sion was based on factual findings resulting from
credibility resolutions . The General Counsel has
excepted to these credibility resolutions on the
ground that the Administrative Law Judge failed to
consider the entire record.
In his Decision, the Administrative Law Judge
noted that Respondent's president, Henry Aguirre,
telephoned Capel Kiang and spoke to its warehouse
supervisor, John Chessari, about Sayre, the day prior
to Sayre's layoff. Aguirre testified that he never told
Capel Kiang to lay off Sayre. Chessari testified that
Aguirre referred to laying off Sayre if Capel Kiang
did not want to give Sayre more money. The
Administrative Law Judge did not resolve this
conflict in testimony. Rather, he concluded that
Aguirre had testified credibly on this incident but he
did not mention the testimony by Chessari. The
Board is satisfied that the Administrative Law
Judge's failure to mention and consider Chessari's
testimony was not a tacit credibility resolution but
rather was an inadvertent error as the Board notes
that the Administrative Law Judge later in his
Decision indicated that "Nowhere in this record is
there an explicit statement acknowledging that the
I ALID III,B, par. 8.
2 Contrary to our dissenting colleague , we are not prepared to decide the
merits herein without first having the Administrative Law Judge consider all
the issues, including credibility , in light of Chessan's testimony described
above. Unlike the dissent , we are not willing to find that the only conclusion
228 NLRB No. 39
Union called Capel Kiang and told them to dis-
charge, lay off or terminate Sayre."' This statement
clearly takes no consideration of Chessari's testimony
for, even if that testimony is ultimately discredited, it
is apparent it is still "in [the] record."
Additionally, the Administrative Law Judge discre-
dited Sayre's testimony that he was told by Foreman
Parrott that the Company had to lay him (Sayre) off
so that he could get another job. The Administrative
Law Judge found that it was illogical for the
Company to have said this at a time when no other
journeyman/warehouseman jobs were available. We
note, however, that Sayre's testimony of this conver-
sation may be affected by the testimony of Chessari
and what disposition the Administrative Law Judge
makes of that testimony.
Thus, as the Board considers the Administrative
Law Judge's credibility resolutions presently inade-
quate, this proceeding is remanded to Administrative
Law Judge Bernard J. Seff to reevaluate the record
evidence in order to make credibility resolutions,
findings of fact, and conclusions of law consistent
with the entire record, and to issue a supplemental
decision thereon.2
It is hereby ordered that this proceeding be, and it
hereby is, remanded to Administrative Law Judge
Bernard J. Seff for the purpose of reevaluating the
evidence and making credibility resolutions concern-
ing the telephone conversation between Henry
Aguirre and John Chessari on March 11, 1976, and
the conversation between Cal Parrott and Lawrence
Sayre just prior to Sayre's layoff.
IT IS FURTHER ORDERED that the Administrative
Law Judge shall prepare and serve on the parties a
Supplemental Decision containing credibility resolu-
tions, findings of fact upon the entire record, conclu-
sions of law, and recommendations; and that, follow-
ing service of the Supplemental Decision on the
parties, the provisions of Section 102.46 of the
Board's Rules and Regulations, Series 8, as amended,
shall be applicable.
MEMBER WALTHER, dissenting:
Contrary to my colleagues, I find no need for the
Administrative Law Judge to reevaluate the record
herein. Consequently, I would not remand this
proceeding to the Administrative Law Judge and
would consider the merits of the exceptions to his
Decision. As set forth below, I would also find that
Respondent did not violate the Act.
The facts are set forth in the majority opinion and I
shall not repeat them here. My colleagues are
that can be drawn from such testimony , if credited, is that the Union's
alleged actions in calling Capel Kiang were taken merely in enforcement of
the parties ' collective-bargaining agreement , considering all of the surround-
ing circumstances here. That is not to say that we are ruling out such a
conclusion , but only that other conclusions might be drawn as well.
WAREHOUSE UNION LOCAL 860
concerned with the obvious failure by the Adminis-
trative Law Judge to consider the testimony of
Chessari which may, in their view, constitute the basis
for the Administrative Law Judge's finding a viola-
tion. Of course, I share their concern over the failure
by the Administrative Law Judge to consider all the
testimony. In my view, however, even when Ches-
sari's testimony is considered and fully credited, it
does not form the basis for finding that a violation
was committed.
As noted by the majority, Warehouse Supervisor
Chessari testified that Respondent's president,
Aguirre, referred to laying off Sayre in a telephone
conversation with Chessari if Capel Kiang (the
Employer) could not give Sayre more money. A day
prior to the phone call, Sayre had inquired at a union
meeting as to why he was making trainee wages of $3
per hour rather than the contract rate of $6 per hour.
Clearly, the relayed inquiry by Respondent Union
and its urging that Sayre be paid more was an attempt
at enforcing its contract with Capel Kiang. If Capel
Kiang could not pay the journeyman rate it was
contractually bound to pay, it was to refer Sayre back
to the Union which would then attempt to find him
other employment. The conclusion urged by the
General Counsel, that Aguirre's phone call was made
for the purpose of urging Sayre's layoff, is unwarrant-
ed. Certainly, if Respondent intended only that Sayre
be laid off, it would not have also sought his
continued employment at the journeyman's rate.
Thus, if the testimony of Chessari is considered and
credited, it discloses a phone call from a union to an
employer urging compliance with a contract. This
does not constitute a violation of the Act. I therefore
see no purpose in remanding the proceeding to the
Administrative Law Judge. I would consider the
merits and, for the reason set forth above, would
dismiss the complaint.
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This case
was heard before me in San Francisco, California, on
August 10, 1976.1 The charge was filed by Lawrence Sayre,
an individual, and the complaint was issued on May 24. It
alleges that the Respondent violated Sections 8(b)(1)(A)
and (2) and 2(6) and (7) of the Act. The filing of briefs was
waived and the case concluded with oral argument present-
ed by both sides.
Upon the entire record, including my observation of the
witnesses and after due consideration of the record, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
365
Capel Klang Company, herein called the Employer, is a
division of Leisure-Group, Inc., a Delaware corporation
with a facility in South San Francisco, California, where it
is engaged in the wholesale distribution of gardening
equipment and supplies. During the past calendar year, the
Employer, in the course and conduct of its business
operations, purchased and received goods, materials, and
supplies valued in excess of $50,000 directly from suppliers
located outside the State of California. During the past
calendar year, the Employer sold and shipped goods and
materials valued in excess of $50,000 directly to customers
located outside the State of California.
The complaint alleges, the Employer admits, and I find
that the Employer is, and at all times material has been, an
employer engaged in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Warehouse Union Local No. 860, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
Lawrence Sayre was employed by Capel Klang in mid-
January and continued in the Company's employ until
March 12, 1976. Sayre is a member of Warehouse Union
Local No. 860 and is an experienced warehouseman. He
was formerly employed in 1975 by a plastics concern, BWI
Company. Because the wages were low and working
conditions not good, Sayre and two other fellow employees
called upon the business agent of Local 860, Robert
Patterson, and asked him to organize BWI. Although the
record is not clear on this point, apparently Sayre lost his
job after some months and was then referred to the Joseph
Magnin Co. by Patterson. He earned the journeyman's rate
as a warehouseman while working for Magnin , which was
approximately $6.50 an hour. Sayre worked for Magnin
until about December 17, 1975, when he was laid off
because the Christmas business had been completed. He
was out of work for some time until approximately the
middle of January 1976. Sayre made repeated efforts, by
telephoning as much as three times a day to Patterson at the
union office in an attempt to secure other employment.
The period between January and August is known as the
worst time to expect to get a job as a warehouseman.
Patterson testified that the status of work in the warehouse
industry was very poor because the California state tax on
inventory starts in February or March, and employers do
not put much merchandise into warehouses. Work begins
to pick up again about August, and from August through
December it is very good.
I All dates referred to in this Decision took place in 1976 unless otherwise
specified.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sayre was in very frequent contact with the union office,
and he kept asking Patterson if it wasn 't possible to get him
a job, because he had a special problem due to the fact that
his wife was pregnant and Sayre did not have either any
workmen 's compensation due him nor did he have any
coverage under health and welfare . Patterson told him that
he would not be eligible to receive health and welfare
coverage from Capel Klang until he had been employed for
1 year.
Due to his efforts with Patterson and Henry Aguirre, who
is the president of Local 860, Sayre repeatedly requested
employment both by making telephone calls to the union
office and also by making two personal visits to the office.
Sayre told Patterson that he was desperate for work.
Patterson explained repeatedly that work was very slow in
the industry in January and remained poor really until
August. Finally, Patterson told Sayre that, although there
were no jobs as regular warehousemen available , he could
send him to Capel Klang , where he would be interviewed
for a job as an apprentice.
Patterson told Sayre that he would not be happy as an
apprentice where the pay was only $3 an hour. Sayre again
said he was desperately in need of work. Patterson told him
if he wanted to go out for an interview and if he wanted the
job to go down and try the job at Capel Klang temporarily.
Patterson testified that he told Sayre he knew he was a good
warehouseman and did not deserve working for the kind of
wages being paid for the job as apprentice , but he had
nothing else at that time to offer him. Patterson pointed out
to Sayre that he never sent a journeyman out on a job as an
apprentice because the job only paid $3 an hour to start.
Every 3 months he would receive an increase of approxi-
mately 50 cents an hour . Primarily, the job was one where
the Union sent inexperienced students and college boys
who go through the program and later become attorneys or
doctors or other kinds of professional people.
The record shows that Sayre was discontented with the
rate of pay, but his primary concern in the early days of his
employment was the fact that he had no way to pay for the
cost of taking care of the delivery of his child . His wife's
pregnancy was something that was on his mind constantly.
He was very anxious that he be given some employment
where one of the benefits would include health and welfare
payments that would make it possible to carry the cost of
his child's birth . While the record is not entirely clear as to
how frequently Sayre called Patterson, it is clear that he
called very often and on some occasions called as much as
three times a day . These calls were made primarily for the
purpose of Sayre's getting a job as a journeyman ware-
houseman so that he could make $6.08 an hour rather than
the $3 he was earning while employed by Capel Klang.
Whenever Sayre spoke to either Patterson or Aguirre, he
kept asking if Patterson could find him a job as a
journeyman . Patterson would reiterate the fact that the
conditions in the industry were very bad at that time, but he
did tell Sayre he would do the very best he could for him.
B. The Events of the Meeting of March 10, 1976
A big meeting was scheduled to take place at the Towne
House in San Francisco for the purpose of settling on
demands the Union was then making for a new master
contract . At the outset it was made clear to the approxi-
mately 900 individuals who were present at this meeting
that the purpose of the meeting was to discuss proposals
then before the multiemployer bargaining group and that it
was not for the purpose of airing any individual grievances.
After approximately 45 minutes , during which contract
proposals were discussed from the podium by Patterson,
and the secretary-treasurer of the Union, a Mr. O'Reilly,
and Aguirre, the meeting was then thrown open for
questions from the floor . The first person to raise his hand
for permission to speak to the group was Sayre . As soon as
he started what he had to say, he remarked that he thought
it was manifestly unfair for him, being a journeyman
warehouseman , to have been sent out on a job that paid $3
an hour instead of the then going rate which was $6 an
hour. He also said the Company could afford to pay him
the $6 rate because they were investing money in the
purchase of new equipment, such as forklifts, etc. Supervi-
sor Chessari , who is also a member of the Union, was
present at the meeting and heard Sayre's statements critical
of the Company.
When O'Reilly heard about the story of Sayre's employ-
ment, he asked who had dispatched him to the job.
Patterson said that he had dispatched him and Patterson
was requested to make an explanation to the members as to
how this referral took place. Patterson explained that Sayre
kept in almost constant touch with hun by telephone,
requesting work and explaining the desperation of his
situation , that his wife was pregnant , that he had no
unemployment compensation coming to him , and that he
had no insurance protection to cover the cost of the delivery
of his child. After the meeting was over, Sayre went up to
where Patterson was speaking to a number of people and
said that he wanted to make an apology for the "cheap
shot" he had directed against Patterson because he knew
that Patterson was embarrassed to be denigrated in front of
900 union members when the announcement was made that
he had dispatched Sayre to a $3-an-hour job. Patterson
testified that he was very angry and that the damage had
been done to him because Sayre had paid full union dues
and had been sent out on an apprentice job. Patterson then
turned his back on Sayre . Some short time later Sayre
approached Aguirre and explained to Aguirre that he was
sorry he had made the remark he made about Patterson,
that it was a cheap shot, and that he could understand why
Patterson was angry with him. Aguirre spoke in a very
cordial manner and assured Sayre that by the next day
Patterson would have gotten over his anger and it was not
something that Sayre had to worry about.
It is at this point in the record that it is not clear precisely
as to what later developed on the next day, March 11. The
General Counsel contends that Union President Aguirre
called Capel Klang on March 11 and ordered that Sayre be
discharged . On March 12 Sayre was laid off. The only
serious issue in this case was centered around what had
been said by the Union and what had been said by the
Company to Sayre. Aguirre testified credibly that he
wanted to see if he could help Sayre get into the $6-an-hour
wage group . Aguirre testified that he told Chessari: "All I
said look, do me a favor. This guy is hurting , he's married,
his wife is going to have a baby, if there's a chance that you
WAREHOUSE UNION LOCAL 860 367
can put him on the regular payroll as an experienced
warehouseman , if you could put him on there I would
really appreciate it."
Chessari was asked what was the response:
A. They said Henry we can't. We're all filled up.
a s s s
Q. You testified that you didn't use the term
"terminate" Mr. Sayre.
A. I never told the company to terminate him. All I
told the company was if they could possibly put him on
the higher rate and they should talk to Mr. Sayre and
see if he wanted to stay for the $3 an hour. If not, to
send him to me and then I would see if I could get him
another job.
Q. Did you ever use the term layoff?
A. I never used the term layoff at any time.
Among the other items that were offered into evidence
were typed copies of a taped series of phone calls made by
Sayre to the Union. One of these conversations took place
between Sayre and Aguirre.
Aguirre read from the tape as follows:
Well they figured if you were going to hassle with $3 an
hour, they weren't going to keep you ... .
Sayre testified on direct examination that Cal Parrott, the
Company's foreman who had the authority to hire and fire
employees, came up to him and said:
"Well, Larry, I've got some good news and I've got
some bad news." He told me that the union had called
and they were going to find me a better job or
something very similar that they had, paying at union
scales and that I would be able to make it pretty
comfortably. The bad news he told me was that the
company had to lay me off, so I could get that other job.
Nowhere in this record is there an explicit statement
acknowledging that the Union called Capel Klang and told
them to discharge, lay off, or terminate Sayre. I do not
credit the explanation given by Sayre of the conversation he
had with Parrott. It strains credulity to believe that Parrott
would tell Sayre he was laying him off because he wanted to
make it possible for Sayre to go and get the other job. The
record is perfectly clear that, throughout the many conver-
sations that Sayre had with Patterson and the few he had
with Aguirre, the Union constantly maintained that it had
no other jobs available except thejob as an apprentice and
that Patterson felt he was overqualified for that position.
Furthermore, it was clearly understood by the Union that
Sayre was making a plea of desperation that he be given
some kind of job because of the problem he had concerning
securing hospital coverage for his wife. From the over-
whelming testimony in the record to the effect that there
were no jobs available, it does not add up logically that the
Company would tell Sayre that they had to lay him off so he
could go and get another job when there were no other
journeymanjobs available at that time.
It is not exactly clear as to why Sayre was discharged at
this time, but it is important to remember that Chessari, the
plant superintendent, was present in the union hall when
Sayre made his attack upon the Company for paying him
only $3 an hour when they were expending sums of money
to purchase new equipment. Furthermore, there is testimo-
ny in the record that Sayre was told by Aguirre and also by
Patterson that he should hold on as long as possible
because something would surely open up at a later date and
they hoped that they would be able to place him in a job at
the regular journeyman warehouseman rate, which at this
time had been raised to $6.50 an hour. In addition the tape
which was read by Aguirre of his conversation with Sayre
contains the statement by Aquirre, "Well, they figured if
you were going to hassle with $3 an hour they weren't going
to keep you."
During cross-examination by the General Counsel, Sayre
testified that he told Aguirre he did not want to work at that
place of employment for $3 an hour. "That was the reason
he was phoning me every day to get out of there." Aguirre
testified that he told Sayre to hang on, that half a loaf is
better than nothing and "I figured that something else
would come along and we could put him to work for
something better."
Paragraph VI of the complaint states:
On or about March 12, 1976, Respondent caused or
attempted to cause the Employer to lay off Lawrence
Sayre because of his protected concerted activities,
and/or because of unfair, arbitrary, and invidious
reasons unrelated to any legitimate Union considera-
tions.
No evidence was adduced at the hearing in support of the
above-quoted allegation . The General Counsel certainly
did not prove on the basis of the testimony that was
adduced that Sayre was laid off or discharged because of
any actions on the part of the Union. In a word, the
General Counsel did not sustain his burden of proving by
substantial probative evidence that Sayre was laid off at the
behest of the Union for reasons violative of the Act. Parrott
was not called as a witness by the General Counsel.
CONCLUSIONS OF LAW
I find and conclude that the Union was not guilty of any
unfair labor practices affecting commerce within the
meaning of Section 8(b)(1)A) and (2) and Section 2(6) and
(7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER2
It is ordered that the complaint herein be, and the same
hereby is, dismissed in its entirety.
2 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted By
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."