Wentcel, Inc.

National Labor Relations Board - Board Decisions

Aug 10, 1972

198 N.L.R.B. 828 (N.L.R.B. 1972)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wentcel, Inc. and Ronald Alvin Sawyer
Brotherhood of Teamsters & Auto Truck Drivers,
Local No. 70, International Brotherhood of Team-
sters , Chauffeurs , Warehousemen & Helpers of
America and Ronald Alvin Sawyer. Cases
20-CA-6600 and 20-CB-2429
August 10, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On January 6, 1972, Trial Examiner James T.
Barker issued the attached Decision in this proceed-
ing. Thereafter, exceptions were filed by the Respon-
dent Union together with a supporting brief. General
Counsel filed a supporting and answering brief. The
Respondent Employer filed no exceptions.
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 Board has considered the record and the Trial
Examiner's Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
Trial Examiner's rulings, findings, and conclusions
and to adopt his recommended Order except as
modified herein.
The Trial Examiner found that the Respondent
Employer, Wentcel, Inc., violated Section 8(a)(3) and
(1) of the Act by terminating employee Sawyer
because of his nonmembership in the Union. No
exceptions having been filed by the Respondent
Employer to this finding, we adopt such finding pro
forma.
The Trial Examiner also found that by entering
into, maintaining, and giving effect to a collective-
bargaining agreement containing an unlawful union
security provision the Respondents engaged in
conduct violative of Section 8(a)(1), (2), and (3) and
Section 8(b)(1)(A) and Section 8(b)(2) of the Act.
The Respondent Union excepts to this finding on the
basis that the collective-bargaining agreement alleg-
ed to contain the unlawful union security clause was
not effective at the time of Sawyer's discharge, thus it
could not constitute the basis for a finding that the
maintaining and giving effect to an alleged unlawful
security clause violated the Act as found by the Trial
Examiner. We find merit in Respondent Union's
exception.
A review of the record discloses that the Respon-
dent had reached accord on numerous aspects of a
collective-bargaining agreement that had been in
negotiation between the parties from August 1970
and was consummated on January 21, 1971. Full
agreement had not been reached on all the terms of
the agreement as of December 30, 1970, the date of
Sawyer's discharge. While the record establishes that
the collective-bargaining agreement that became
effective on January 21, 1971, did contain an illegal
union security clause, there is no evidence in the
record that the Respondent sought to enforce such
illegal clause prior to the date of the consummation
of the agreement. Accordingly, in all the circum-
stances, we find, contrary to the Trial Examiner, that
Respondents did not enter into, maintain, or give
effect to a collective-bargaining agreement contain-
ing an unlawful union security provision in violation
of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A)
and 8(b)(2) of the Act. We shall therefore dismiss this
allegation in the complaint and amend the Trial
Examiner's Order accordingly.
The Trial Examiner also found that the Respon-
dent Union by causing or attempting to cause the
Employer to terminate Sawyer because Sawyer was
not a member of the Respondent Union, engaged in,
and is engaging in, unfair labor practices in violation
of Section 8(b)(2) of the Act. The Respondent Union
excepts to this finding by the Trial Examiner. We
find merit in this exception.
The Trial Examiner specifically finds that there
was no direct evidence that any official of the Union
demanded that Della, president of Respondent
Employer Wentcel, Inc., terminate Sawyer. Nonethe-
less, the Trial Examiner concluded that the actions of
Union Official Ybarrolaza, when contacted by Della
regarding the latter's intention to discharge Sawyer
for unsatisfactory work performance, provided a
basis from which the inference could be drawn that a
demand for Sawyer's termination was made. We find
nothing in the record that would support such an
inference. Della was the one who instigated the
termination of Sawyer. Della in talking to Ybarrola-
za about his (Della's) intention of terminating
Sawyer sought to ascertain whether if he proceeded
with the termination the Union would undertake to
represent Sawyer. Ybarrolaza informed Della that
Respondent Union would not represent Sawyer if
Local 287 (Teamsters), of which Sawyer was a
member, assumed responsibility. This evidence is
insufficient to establish that the Union made a
demand for Sawyer's discharge. The record evidence
does show that Ybarrolaza did tell Della, at the time
of the above-mentioned conversation, that two
employees, Goble and Johnson, were not members of
the Respondent Union and that he (Ybarrolaza)
might have to ask Della to discharge them if they did
not transfer to Respondent Union. However, we do
not agree with the Trial Examiner that this statement
by Ybarrolaza provides a basis for concluding that
198 NLRB No. 104
WENTCEL, INC. 829
the Union must have attempted, for the same reason,
to have Sawyer discharged. We find, in all the
circumstances, that the evidence of record does not
support a finding that the Respondent Union
violated Section 8(b)(2) of the Act. We shall
therefore dismiss this allegation of the complaint and
amend the Order accordingly.
It is clear from the record that Ybarrolaza had
been informed by Della of Sawyer's shortcomings in
the performance of his work at various times prior to
Sawyer's actual discharge and that Ybarrolaza had
so warned Sawyer. It is also abundantly clear that
Della in consulting with Ybarrolaza regarding his
intention to discharge Sawyer was interested in
whether in view of Sawyer's work record the Union
would protest his discharge. The record evidence
does not indicate in any way that the Union through
its agent Ybarrolaza had any doubts as to Della's
complaints as to Sawyer's work performance but
indicates that such complaints had substance and
Sawyer's discharge was justified. The test of failure
by a Union to fairly represent a unit employee was
set forth by the Supreme Court in Vaca v. Sipes (386
U.S. 171). There the Court held that a Union must
represent "employees without hostility, in good faith
and honesty, and avoid arbitrary conduct." We find
no breach of these standards in the conduct of the
Union in this case, particularly in view of the
repeated warnings given to Sawyer that he was in
danger of discharge because of his continued acts of
misconduct.
In all the circumstances, we find that the Union did
not violate Section 8(b)(1)(A) of the Act as alleged.
Accordingly, contrary to the Trial Examiner, we
shall therefore dismiss this allegation of the com-
plaint. i
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below
and hereby orders that the Respondent, Wentcel,
Inc., Oakland, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's recommended Order.2
The complaint as to the Union is in all respects
hereby dismissed.
a "dues paying" member of Local 70 The fact that , as we are finding, no
collective-bargaining agreement was in effect at the time of the discharge
does not justify Respondent Union in failing and refusing to represent a
unit employee for discriminatory reasons in connection with a matter which
was of vital concern to the employee , i e, his discharge from employment
2 Substitute the attached notice for the Trial Examiner's Appendix A
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees the right to get or keep a job even if they
are not members of a union, except under certain
conditions. Unless these conditions are met, the
requirement to join a union in order to keep a job is
illegal. The specific conditions which make that
requirement lawful include:
(1) The requirement to join the union must be
pursuant to a lawful collective-bargaining con-
tract.
(2) The contract must give the employees at least
30 days after they are hired, before they can be
required to join the union. However, employees
who work in the building and construction
industry have only 7 days to join.
The Act also protects an employee from being fired
for not joining the union, if the requirement to join
does not meet the above conditions.
The National Labor Relations Board found that
we violated your legal rights under the above-
described provisions of the National Labor Relations
Act. Specifically, the Board found that employee
Ronald Sawyer was discharged by us for failure to
join Respondent Union, Local 70, Teamsters Inter-
national.
Accordingly, we give you the following assurances:
WE WILL NOT unlawfully discriminate against
employees as to their hire or tenure of employ-
ment, or any term or condition of employment.
WE WILL make up any pay loss which Ronald
Sawyer suffered together with 6-percent interest
covering the period between Sawyer's unlawful
discharge on December 30, 1970, and his reins-
tatement on March 17, 1971.
WENTCEL, INC.
(Employer)
i Chairman Miller would adopt the Trial Examiner's findings of an
8(b)(I)(A) violation The circumstances cited by the majority disclose, at
most, that there existed valid grounds upon which the Union could have
refused to represent Sawyer with respect to his discharge The fact is that the
Union told Sawyer it could not help him because he was not a member of
Local 70 Business Agent Ybarrolaza told Sawyer this on January 6,
Secretary-Treasurer Leishman told him the same thing a few days later,
and, in late January, Leishman even refused to give Sawyer a copy of the
recently executed collective-bargaining agreement because Sawyer was not
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office, 13018 Federal Building , 450 Golden
Gate Avenue, Box 36047, San Francisco , California
94102, Telephone 415-556-3197.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER , Trial Examiner : This matter was
heard at San Francisco , California, on July 8, 9, and 26,
1971, pursuant to an initial charge and a first amended
charge filed in Case 20-CA-6600 by Ronald Sawyer on
February 23, 1971, and April 19 , 1971, respectively; and a
charge filed in Case 20-CB-2429 on February 23, 1971, by
Sawyer . On September 13, 1971, the General Counsel
timely filed a brief with me and thereafter , on September
15, the counsel for the Respondent Union filed a letter
memorandum , served on the parties , setting forth the
position of the Union with respect to the legal issues
involved herein.
Upon consideration of the brief of the General Counsel,
and the memorandum of the Respondent Union , and upon
the entire record in this case , and my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
At all times material herein Wentcel, Inc., hereinafter
referred to as the Company or Respondent Company, has
been a California corporation engaged in business in
Oakland, California, as a contract mail hauler for the
United States Postal Service . During the 12-month period
immediately preceding the issuance of the complaint
herein , the Company , in the course and conduct of its
business operations , received gross revenues in excess of
$50,000 for transporting mail in interstate commerce for
the United States Postal Service.
Upon these facts, I find that at all times material herein,
Wentcel, Inc., has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties concede that at all times material herein
Brotherhood of Teamsters & Auto Truck Drivers Local
No. 70 , International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, hereinafter
called the Union , has been a labor organization within the
meaning of Section 2(5) of the Act , and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The General Counsel contends that at all relevant times
on and after September 1, 1971, there was in effect between
the Company and the Union a collective -bargaining
agreement containing an illegal union -security provision;
and that by entering into , maintaining , and enforcing the
collective-bargaining agreement containing illegal union-
security provisions the Company violated Section 8(a)(1),
(2), and (3) and the Union violated Section 8(b)(1)(A) and
Section 8(b)(2) of the Act . Moreover, contends the General
Counsel , the Company violated Section 8(a)(3) of the Act
by discriminatorily terminating the employment of Ronald
Sawyer, and the Union , in turn , violated Section 8(b)(1)(A)
and Section 8(b)(2) of the Act by attempting to cause or
causing Sawyer 's termination . The General Counsel further
contends that the Union violated Section 8(b)(I)(A) of the
Act by refusing to process Sawyer 's grievance charging that
his termination was in violation of the notice provisions of
the contract between the Company and the Union.
Further issues bearing upon the aforesaid principal
issues relate to (a) whether the union-security provision,
illegal on its face , was in effect at the time of Sawyer's
discharge; (b) whether Johnnie Cunningham was at
material times a supervisor within the meaning of the Act;
and (c) whether Alex Ybarrolaza , Augusta McInnis, and
A. N. Leishman were agents of the Union.
With respect to the principal issues , the Company
contends that Sawyer was terminated solely for cause and
the Company and the Union join in their contention that
the collective-bargaining agreement containing the union-
security provision here in issue was not in effect at the time
of Sawyer's discharge . Additionally , the Union contends
that the General Counsel failed to prove that it attempted
to cause or did cause the Company to terminate Sawyer's
employment ; and that the General Counsel similarly did
not sustain his burden of establishing that the Union failed
in any obligation arising under the Act to process Sawyer's
grievance.
B. Pertinent Facts
1. The setting
a. The Company
Wentcel, Inc., is a company formed from an individual
proprietorship formerly known as Della Trucking Compa-
ny and owned by Charles Della. Since 1952, Charles Della
has held a contract with the United States Government to
haul mail as a star route carrier . Wentcel , Inc., was
organized in November 1970 to perform mail-hauling
services . In performing the function the Company utilizes
virtually the same equipment and personnel as did the
predecessor enterprise and performs its mail-hauling
services from the same location.
The contracts with the Government under which the
Company operates are for a 4-year term and the current
contract held by the Company expires on June 30, 1973.
The contract in question has no automatic renewal
provision and renewal of the agreement is dependent upon
satisfactory performance on the part of the Company.
Service and attitude of the personnel of the Company are
factors given weight by the postal service in deciding
whether or not to renew the agreement . The complaints
lodged by the postal service concerning deficiencies in the
work performance of drivers or other personnel of mail
WENTCEL, INC. 831
haulers are transmitted verbally or by telephonic contact
with supervision, or in writing. The contract which the
Company presently holds with the postal service represents
its sole and exclusive source of revenue.
Johnnie Cunningham has direct authority and responsi-
bility over the day-to-day supervision of the personnel of
the Company. Included in Cunningham's responsibilities
are oversight duties with respect to truckdrivers employed
by the Company and he has authority to hire and
terminate the employment of employees. Additionally, he
participates in the adjustment of employee grievances and
consults with and advises Charles Della on labor relation
matters.' I find that Johnnie Cunningham has been at all
pertinent times a supervisor within the meaning of the Act.
b. The officers and jurisdiction of the Union
Local 70 is headquartered in Oakland, California. Its
jurisdiction extends throughout Alameda County, Califor-
nia. Alex Ybarrolaza is business representative of the
Union, A. N. Leishman is its secretary-treasurer, and
Augusta McInnis is a shop steward.
In his capacity as business agent of the Union, Alex
Ybarrolaza administers the collective-bargaining agree-
ment between the Company and the Union and adjusts
grievances arising thereunder. Additionally, he performs
duties relating to the representation of a membership of
1,200 individuals under collective-bargaining agreements
with a variety of employers. Ybarrolaza participated in
negotiating the most recent agreement between the
Company and the Union.
A. N. Leishman participates in the representation of
the membership of the Union. In his capacity as secretary-
treasurer, Leishman collects, deposits, and disburses funds
of the Union; directs the office staff; performs certain
administrative functions; and is in charge of dues cards.
He occasionally reviews contracts which have been
negotiated by the Union and possesses authority to
recommend modification in their terms prior to execution.
Leishman signed the most recent collective-bargaining
agreement between the Union and the Company and he
affixed his signature to documents extending the prior
agreement for an interim period. Virtually all correspond-
ence of the Union is signed either by Leishman or by one
other designated officer of the Union.
Under the practices of the Union, as well as under the
terms of the procedure outlined in the Union's collective-
bargaining agreement with the Company, the shop steward
participates in the initial step of the grievance procedure.
As found, Augusta McInnis served at times pertinent as a
shop steward of the Union. The most recent collective-
bargaining agreement declares that an employee must
initially discuss his grievance with his "Shop Steward,
Chief Steward and Supervisor." If a grievance is not
resolved at the initial level the Union's business agent
processes the grievance from that point on. Leishman does
not participate in the grievance process.2
I find that at material times Alex Ybarrolaza and A. N.
Leishman were agents of the Union and that Augusta
McInnis was an agent of the Union for all matters
pertaining to grievances.
2. The alleged unlawful conduct
a. The union security provision
(1) The current agreement
The Union has represented the employees of the
Company, or its predecessor, since approximately 1967.
The initial collective-bargaining agreement covering the
Company's employees was one between employers desig-
nated as mail haulers , on the one hand , and Local 70, on
the other . The agreement had been jointly negotiated by
Local 70 and by Teamsters Locals 624 and 980. The
agreement covering the Company 's employees was effec-
tive from March 10, 1968 , to August 31 , 1970. The
agreement contained a standard 31-day union -security
provision.
The current agreement which was executed by the parties
on January 21, 1971, and by its terms was effective from
September 1, 1970, until August 31, 1971, contained the
following provisions:
ARTICLE 1. DESIGNATION OF BARGAINING
AGENCY AND JURISDICTION.
s s * s n
Section 2: It shall be a condition of employment that
any employee covered by this Agreement shall apply
for Union membership immediately upon or by the
completion of his second day of employment. Upon
attainment of seniority, such employee shall then be
eligible for membership in the Union; and upon
acceptance shall maintain his membership in good
standing as a condition of continued employment.
All employees covered by this Agreement must
maintain their membership in the Union in good
standing as a condition of continued employment. The
Employer shall discharge any employee covered by this
Agreement within seven (7) days after receipt of written
notice from the Union that said employee has not
become or remained a member in good standing.
ARTICLE VIII. SENIORITY AND LAY-OFFS:
Section 1 : Seniority shall not apply to an employee
until he shall have been employed by the Employer
eighteen (18) days in a thirty (30) day period . Seniority
shall commence upon the completion of such period
and shall revert to the first day of hire. Upon
attainment of seniority an individual shall be consid-
ered a regular employee.
ARTICLE IX GRIEVANCE PROCEDURE:
Section 1 . A grievance by any employee , the Union
or the Employer shall be limited to any controversy,
complaint or misunderstanding arising as to the
interpretation or observance of any of the provisions of
this Agreement . Processing of any grievance must be
1 The foregoing is based on the credited testimony of Charles Della
z The creidted testimony of Alex Ybarrolaza and documents of record
establish the foregoing
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commenced within thirty (30) days from the time of the
event or events giving rise to the grievance.
Section 2: Any case pertaining to a discharge or
suspension shall be handled as follows:
b. Within five (5) days of the occurrence of the
alleged cause for discharge or suspension, the
Employer shall give written notice by registered
mail to the employee and to the Local Union of
its decision to discharge or suspend the employee;
and such notice shall set forth the reason or
reasons for the discharge or suspension. If the
Employer fails to give such notice within the
specified five (5) day period, the right to dis-
charge or suspend for that particular reason shall
be waived.
The modification in the union-security provision from a
31-day provision to that set forth above was accomplished
at the suggestion of Ybarrolaza. Della did not oppose
Ybarrolaza's request and the inclusion of the provision in
the new agreement was not an obstacle in the negotiations.
In explaining the reason for the modification in the union-
security provision, Ybarrolaza testified at the hearing that
when he assumed his duties with the Union he noted that
both the Company and a competitor enterprise with which
the Union had a union shop contract had a great number
of employees who were not members of the Union.
Ybarrolaza testified that by reason of the nature of the
mail-hauling operation the contract was difficult to police
and extensive efforts were undertaken to persuade the
employees to join the Union. Ybarrolaza testified further
that in many instances the shop steward and other union
officials are not aware of new hires. In further explanation
of the reason for seeking to modify the union-security
provisions Ybarrolaza testified:
... we wanted something in there to where the
Employer would notify his employees at an early stage
in the game that Local 70 was their bargaining agent
and they should come down and inform the umon that
they were coming to work there.
In a similar manner, the seniority provision was
incorporated in the new agreement. While the predecessor
agreement had provided that seniority would not apply to
an employee "until he shall have been employed by the
Employer for a thirty (30) day period" Ybarrolaza testified
that in negotiations with Della it was noted that while some
of the employees worked a normal 5-day workweek others
worked only 4 days per week, or approximately 21 working
days in a 30-day period. Ybarrolaza testified that the 18-
day requirement was achieved to "take care of all of the
3 Alex Ybarrolaza testified that after January 17 it was brought to his
attention that the union-security provision embodied in the new collective-
bargaining agreement was "possibly illegal." Consequently , on March 20 he
transmitted by mad to Charles Della certain recommended revisions
Consultation and correspondence ensued and on April 27, 1971, the parties
executed an amendment to the union security and seniority articles of the
current agreement which have the effect of granting new employees the full
30-day period in which to apply for membership in the Union, and of
vesting seniority at the completion of 30 days' employment
employees that were working there" but that at no time
during the negotiations was there any discussion concern-
ing the impact of the revised seniority provision upon
membership under the union-security provision. Indeed,
Ybarrolaza testified that new hires are uniformly given a
minimum of 90 days to join the Union.3
(2) The negotiations
The negotiations culminating in the current agreement
commenced in August 1970 and were conducted by
Charles Della and Alex Ybarrolaza. During late August
and early September, the Union was also engaged in
negotiations with a competitor of the Company, and in
light of discussions between Della and Ybarrolaza relating
to the practical effect of those negotiations, agreement was
achieved on August 27 to extend the then existing
collective-bargaining agreement for an additional 30-day
period. By letter dated September 1, A. N. Leishman
described the terms of the extension as follows:
The Union agrees to extend the present agreement for
thirty (30) days; and you agreed that any wage,
conditions or benefit increases would be made effective
September 1, 1970 and would be applied retroactively
to that date.
Della and Ybarrolaza met in four principal substantive
collective-bargaining meetings . The initial meeting was
held on August 27 and the other meetings were held in late
September, in October, and on November 3.4 At the
conclusion of the latter meeting , agreement had been
reached on an hourly wage scale of $4.05 and an increase
of 5 cents per hour in the amount of incentive pay to be
paid qualifying employees. All money items, as such, had
been resolved. At the conclusion of the November 3
meeting the only remaining issues related to an owner-
operator clause, a floating holiday, supplemental pensions,
certain vacation benefits, and the length of employment
necessary to attain seniority.5
(3) The November 6 ratification meeting
The terms which by the end of the November 3 meeting
had been agreed upon were presented to the membership
of the Union for ratification on November 6. At the
meeting, Ybarrolaza explained the provision of the
agreement and stated that the Company had accepted
them.6 He recommended that the new agreement be
ratified by the membership. The membership voted
unanimously to ratify the agreement and Ybarrolaza stated
that a "few days" would be required to have the agreement
typed up.7
(4) Further terms discussed
Subsequent to November 6, Della and Ybarrolaza
+ I credit Charles Della in this regard and do not credit Alex Ybarrolaza
that a fifth meeting was held in December
5 1 rely on the credited testimony of Alex Ybarrolaza with respect to the
status of negotiations and the issues remaining on and after November 3
6 Whether the unresolved issues were explained to the membership by
Ybarrolaza is not discernible from the record
T I rely on the credited testimony of Johnnie Cunningham, John Goble.
Ronald Sawyer. and Alex Ybarrolaza in making the foregoing findings
WENTCEL, INC. 833
consulted together and achieved agreement on the issues
which on November 3 remained unresolved. The owner-
operator and vacation pay issues were not settled until
mid-January and the final document was thereafter
prepared for signature. While each of the issues remaining
unresolved after the November 3 meeting was incorporated
in the final document, none of these issues were presented
to the membership of the Union for ratification.8
(5) The new contract terms implemented
In the meantime, in mid-December, Ybarrolaza contact-
ed Delia by telephone and informed him that the
employees had approved the new wage rates that had been
included in the new agreement by way of addendum and
had otherwise ratified the agreement that had been
negotiated. Ybarrolaza stated that the Union would soon
get the new agreement "out" for signature and he added
that the Company could put the new wage rates into effect.
Subsequently, Della informed Mary Dykstra, the Com-
pany's secretary-treasurer and office manager, that the
wage agreement had been settled upon. Consequently, on
December 29, Dykstra issued payroll checks to the
employees covering incentive and retroactive pay from
September 1 through December 19. December 19 marked
the end of the most recent full payroll period.9 Beginning
with the payroll period commencing December 20,
Dykstra computed current wages at the new scale.
b. The termination of Ronald Sawyer
(1) The membership meetings
During the course of the negotiations between the Union
and the Company, membership meetings were held
relating to the negotiations. The initial meeting was held in
late October and was featured by membership rejection of
a company contract offer and by a strike vote of the
membership. Ybarrolaza presided at the meeting and
during the course of the meeting there occurred a
discussion concerning who among those in attendance
would be permitted to vote. Augusta McInnis, a shop
steward of the Union, pointed out to Ybarrolaza that
several of the drivers employed by the Company, including
Sawyer, were not members of the Union. In open meeting
Sawyer alluded to the fact that he was a member of Local
287 and that he would like to persuade Local 287 to join
the contract negotiations. Ybarrolaza deferred this issue
but after the meeting Sawyer and Ybarrolaza spoke
concerning it. At that time, Sawyer repeated his desire to
have Local 287 join in the negotiations and Ybarrolaza
stated that he wished Sawyer would persuade them to do
so. Ybarrolaza stated, however, that Local 287 had been
contacted previously and had not joined the negotiations.
Sawyer stated that he would like to defer joining Local 70
until he determined whether or not Local 287 would
participate in the contract negotiations.
Sawyer subsequently contacted representatives of Local
287 in an effort to persuade them to join in the contract
negotiations but nothing resulted from this effort.
The issue of membership in Local 70 was again raised at
the meeting of November 6, which, as found, featured a
contract ratification vote on the part of the membership of
the Union. Ybarrolaza presided at the meeting and Sawyer
was in attendance. Other nonmembers of Local 287 also
attended and it was announced that nonmembers present
at the meeting could participate in the voting. However,
Ybarrolaza expressed a desire to speak separately with the
nonmembers at the termination of the meeting. He did so
and in due course spoke with Sawyer.
In speaking to Sawyer, Ybarrolaza stated that it was
Sawyer's obligation to join Local 70. Sawyer stated that he
preferred to remain a member of Local 287. Ybarrolaza
answered that Local 287 did not want to participate in the
contract and that, unless Local 287 became a party to the
agreement, it would not be able to represent Sawyer. In
this context, Ybarrolaza stated that "one of these morn-
ings" Sawyer would "probably wake up and find himself
without a job" in that Sawyer's employer had told him that
Sawyer "was messing up on the job." Ybarrolaza added
that Sawyer would, in that event, " go running" to Local
287 and that that local would have nothing to do with him.
Ybarrolaza also asserted that because Local 70 was the
only union that could afford him "proper protection"
under the contract Sawyer should belong to Local 70.10
(2) Ybarrolaza and Della converse
During the course of contract negotiations which
transpired in October and November, on several occasions
Della mentioned to Ybarrolaza that he had been the
recipient of complaints from the postal service concerning
the job performance of Sawyer. Della complained that the
postal service would not put the complaints "in wasting."
Then, between mid-December or late December, Della
again spoke with Ybarrolaza concerning Sawyer. Della
informed Ybarrolaza, in substance, that Sawyer was not
performing his work in a satisfactory manner and asked
Ybarrolaza the procedure to be followed under the
contract to effect his termination. During the course of the
conversation, it was noted that Sawyer was a member of
Local 287 and Della observed that there was still talk of
8 Alex Ybarrolaza so testified
9 Dykstra testified that on December 29 checks covering the payroll
period ending December 19 were issued pursuant to normal practice and
that the retroactive pay due under the terms of the new agreement was paid
on December 29
10 All of the foregoing is based on a composite of the credited testimony
of Alex Ybarrolaza and Ronald Sawyer I specifically credit the testimony
of Sawyer to the effect that, in open meeting in October, he mentioned his
membership in Local 287 and his desire to have that local participate in the
contract negotiations I rely on his testimony and that of Ybarrolaza in
concluding that the further substantive discussions pertaining to this were
deferred until after the meeting in October
I rely specifically on the testimony of Ybarrolaza in concluding that
Sawyer's reference to the possible adverse effects of Sawyer 's membership in
Local 287 to the exclusion of Local 70, as found above , transpired at a
meeting held on November 6 Ybarrolaza testified convincingly concerning
this chronology and his testimony gains support from that of John Goble
who attended only the November 6 meeting The testimony of Sawyer was
less convincing insofar as it fixed the precise date of this occurrence
Moreover, I do not credit the testimony of Sawyer to the effect that
Ybarrolaza stated in terms that if he , Sawyer, "didn 't join" Local 70 he
"might wake up on the wrong side of the bed one morning " and would be
fired I find Ybarrolaza' version more credible and conclude that Sawyer's
testimony is inaccurate with respect to the actual content of Ybarrolaza's
remarks on this occasion
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 287 becoming a party to the contract. Ybarrolaza
noted that Sawyer was not a member of Local 70 and that,
in the event of Sawyer's termination, Local 70 would not
represent Sawyer if Sawyer sought to have Local 287
represent him Ybarrolaza added that, under the circum-
stances, because Sawyer was not a member of Local 70,
Della was free to do what he wished with respect to the
termination of Sawyer. Ybarrolaza also noted, during the
course of the conversation, that two employees of the
company, Johnson and Goble, were members of Local 287
and had not become members of Local 70. Ybarrolaza
stated that, if they did not transfer their membership to
Local 70, the Union would have to request Della to
terminate them."
(3) Della instructs Cunningham
On December 29, Della spoke with Cunningham and
informed Cunningham of his previous telephone conversa-
tion with Ybarrolaza. He also informed Cunningham that
Ybarrolaza had called to his attention the fact that Sawyer
and some other employees of the Company had not
transferred their membership to Local 70 and that,
accordingly, Local 70 could not represent them. Della
thereupon instructed Cunningham to terminate Sawyer
when he reported to work. Della explained to Cunningham
that because Sawyer had failed to transfer his membership
to Local 70 and because Sawyer's work attitude toward the
Company and toward the postal service had not been
satisfactory, the termination should be effectuated.i2
(4) Cunningham terminates Sawyer
On the morning of December 30, Sawyer conversed with
Cunningham by telephone. Sawyer initiated the call and in
speaking with Cunningham informed Cunningham that he
had had car trouble and did not know whether he would be
able to get to work on time. He suggested that Cunning-
ham should call a replacement. Cunningham responded
that Sawyer should not "bother" because he was being
terminated. Sawyer asked Cunningham the reason for his
termination and Cunningham responded that this termina-
11 The foregoing is based on a composite of the credited testimony of
Charles Della and Alex Ybarrolaza I credit Ybarrolaza to the effect that the
foregoing conversation transpired prior to December 29 Additionally, while
I place reliance on the testimony of Ybarrolaza concerning the conversa-
tion, I am convinced that, in recounting his participation in the
conversation, Ybarrolaza tended to cast his comments in a favorable light
and to attribute to himself a degree of detachment and objectivity with
respect to Sawyer's nonmembership in Local 70 and the role which Local 70
would play in any grievance proceeding arising from Sawyer's termination,
not actually warranted Thus, I credit the testimony of Charles Della in
finding that, during the course of the conversation, Ybarrolaza, in words
and substance, conveyed to Della that, in the event of Sawyer's termination,
;Sawyer would, by reason of his membership in Local 287 and nonmember-
ship in Local 70, have to look to Local 287 for representation Moreover,
while I credit the testimony of Della and Ybarrolaza to the effect that at no
time during the conversation did Ybarrolaza , in specific terms , demand
Sawyer's termination because of his nonmembership in Local 70, he did
communicate to Della, as Della testified, that in the circumstances, Della
was free to take whatever action he deemed justified without fear of
intervention on the part of Local 70
12 The credited testimony of Johnnie Cunningham establishes the
foregoing I credit only that portion of Della's testimony as is consistent
with the above factual findings
tion was due to the fact that he had not transferred his
membership to Local 70 and that his work had not been
satisfactory.13
A short time later, Sawyer again telephoned Cunning-
ham. He informed Cunningham that he would be able "to
make it in to work" and would do so. Cunningham
responded to the effect that Sawyer could come in if he
desired to do so but that his check would not be ready for
"a little while." The conversation ended on this note.14 No
written notice setting forth the basis for his termination
was served on Sawyer by the Company.
(5) Sawyer's employment and union affiliation
Ronald Sawyer was employed by the Company as a
driver on August 1, 1970. Unitl his termination on
December 30, 1970, he hauled mail by truck and loaded
and unloaded mail. At the time of his employment and at
all material times Sawyer was a member of Local 287. He
was at no time a member of Local 70. On March 17, 1971,
Sawyer returned to the Company's employ and was
employed by the Company at the time of the hearing.
When Sawyer was initially employed by the Company,
Cunningham instructed Sawyer that the Company's
employees were represented by Local 70 and that if he
belonged to any other union he should transfer his
membership.15 Ronald Sawyer testified that during his
term of employment he understood he had an obligation to
join Local 70.
c. The posttermination events
(1) McInnis consults with management
At the conclusion of his second conversation with
Cunningham on December 30, Sawyer went directly to the
yard. Upon reaching the yard, he spoke again with
Cunningham and inquired whether his termination was
still effective. Cunningham said that it was. Sawyer then
placed a telephone call from a pay phone at the yard and
spoke with Augusta McInnis, shop steward of the Union.
Sawyer outlined for McInnis the events which had
Della testified that he had received complaints from Sawyers's supervi-
sors concerning Sawyer's work He further testified that he had heard
rumors to the effect that Sawyer intended to call in sick on December 31
and that accordingly , he instructed Cunningham to terminate Sawyer if
Sawyer did , in fact , call in for the purpose of advising Cunningham that he
would not be available for his normal shift assignment
With respect to his conversation with Cunningham , Della testified that he
was "hot under the collar" and that, accordingly , he didn't "recall what the
conversation was " between them Della did testify, however, that with
respect to the conversation with Cunningham , " I think I instructed Mr
Cunningham to go-we were going to get rid of Mr. Sawyer. And I called
the union to find out what the rules and regulations were concerning that " I
am convinced Della's testimony concerning Sawyer's anticipated absence
due to illness was a rationalized afterthought and that Della did not instruct
Cunningham concerning the matter
4 I credit the testimony of Cunningham in finding that Sawyer was
informed his work had not been satisfactory
is Sawyer testified that he had experienced battery trouble with his
automobile and after first talking with Cunningham received assistance in
starting his own automobile and, accordingly . placed the second telephone
call to Cunningham
", Johnnie Cunningham testified he followed the practice of so
informing all new hires
WENTCEL, INC. 835
transpired that morning. Accordingly, in mid-morning,
McInnis came to the yard and spoke with Sawyer and
Cunningham. McInnis asked Cunningham the reason for
Sawyer's termination and Cunningham responded that
Sawyer had been terminated because he had not trans-
ferred his membership to Local 70 and for "other reasons."
Thereupon, McInnis asked Cunningham whether, if
Sawyer joined Local 70 and "the other problems were
worked out," he could stay on the job. Cunningham
responded that there would be no possib=lity of this,
Sawyer asked Cunningham the reason for this and
Cunningham stated that he did not have to tell Sawyer and
did not elaborate further. McInnis then asked Cunning-
ham if there had been any 5500's filed against Sawyer and
Cunningham stated that there had been none.16 Cunning-
ham did assert, however, that there had been telephonic
complaints but that no written reports had been filed. The
Company has a policy for automatic termination of any
driver who receives three form 5500's.17
From this point in the conversation, Sawyer, McInnis,
and Cunningham walked into the yard. McInnis asked
Cunningham the principal reason for Sawyer's termina-
tion. At this moment, Della joined the conversation and
Della observed that he had had a telephone conversation
with Ybarrolaza concerning Sawyer and that if Sawyer's
termination had not resulted from his failure to transfer to
Local 70 it would have been for "something else." When
asked by Sawyer to explain the meaning of this statement,
Della responded that he meant Sawyer's "attitude." Della
did not elaborate. McInnis noted that if the Company
terminated Sawyer that it was going to take similar action
against employee Goble. Della responded, in substance,
that he would take action in that regard.
Thereafter, Sawyer and McInnis spoke together. McIn-
nis informed Sawyer that because the termination had
been "approved" by Ybarrolaza, he did not think that
there was "much that he could do." McInnis additionally
stated, however, that, although he did not have a copy of
the collective-bargaining agreement in his possession, he
thought that prior to his termination Sawyer should have
been entitled to "some sort of statement" either from the
Company or the Union giving him time to effectuate his
transfer to Local 70.18 McInnis informed Sawyer that he
would speak with Ybarrolaza and let him know the result
of the conversation. During the 6-week period that
followed, McInnis did not contact Sawyer.
(2) Sawyer contacts Ybarrolaza
Directly following his conversation with McInnis,
Sawyer made efforts to contact Ybarrolaza by telephone.
16 Under postal service procedures, written complaints against a driver
are made through the device of a form letter or, if the complaint relates to
an irregularity deemed substantial , through the filing of a form 5500 Form
5500 complaints may involve a lack of punctuality on the part of the driver
in reaching or departing from a post office location, failing to have truck
doors locked upon approaching the post office, and mixing or improperly
loading the mail If a form 5500 complaint is filed both the contract hauler
and the employee cited are required to separately respond in writing to the
charge,
17 Charles Della testified that as a consequence of the reluctance of the
postal service foremen to file form 5500 complaints against drivers,
telephonic complaints are frequently lodged with the company supervisors
He was unable to reach him. Accordingly, he went to the
offices of Local 287 and spoke with Fred Hoffman,
secretary-treasurer of the local. Sawyer described what had
transpired and Hoffman stated, in substance, that he felt
that under the collective-bargaining agreement between the
Company and the Union Sawyer was entitled to written
notice prior to termination. During the conversation,
Hoffman also stated that John Goble had contacted him.
In this regard Hoffman asserted that Goble informed him
that he had been called and had been instructed to transfer
into Local 70. Hoffman stated that he had advised Goble
to proceed to effectuate his transfer to Local 70 so that he
would not be terminated.
After speaking with Hoffman, Sawyer went to the
unemployment office and filed for unemployment com-
pensation.
(3) Goble obtains Local 70 clearance
In the meantime, at approximately II a.m., on the
morning of December 30, John Goble received a telephone
call from Cunningham. Cunningham asked Goble if he
were a member of Local 70. Goble stated that he was not.
Thereupon, Cunningham instructed him to go to the office
of Local 70 immediately and transfer his membership. He
briefly outlined for Goble the procedure to be followed
and stated that if he did not get clearance from Local 70 he
would not be able to work that night.
After conversing with Cunningham, Goble went to the
office of Local 287 and spoke with Hoffman. In substance,
Hoffman conceded the necessity, in the circumstances, of
Goble transferring his membership. Thereafter, Goble
went to the headquarters of Local 70 and spoke with the
girl at the reception window. Goble informed the girl to
whom he spoke that he was a member of Local 287 and
understood that it was necessary for him to obtain
clearance from Local 70. The girl answered in the
affirmative and, thereupon, picked up a piece of paper. She
asked, "Which one are you?" Goble identified himself by
name and he was given forms to complete and execute
effectuating his transfer from Local 287 to Local 70.
During the conversation, the girl at the reception window
to whom he spoke indicated that the piece of paper to
which she referred contained three names.
After being instructed by the girl to whom he spoke that
the completion of the application and other papers was all
that was necessary to permit him to work, Goble went to
the yard and spoke with Cunningham. He informed
Cunningham that he had obtained a clearance from Local
concerning actionable offenses John Goble testified, however, that he had
received two or three form 5500 complaints in an 18-month period
[r The foregoing is based primarily on the credited testimony of Ronald
Sawyer I have considered also the testimony of Johnnie Cunningham
concerning this incident Cunningham could not recall McInnis asking
Della the reason for Sawyer's termination Similarly. Cunningham did not
recall Mclnnts saying anything to the effect that Ybarrolaza had given his
approval of the termination However, on cross-examination , Cunningham
conceded that these aspects of the conversation could have transpired when,
as Sawyer testified, Della joined the conversation 1. accordingly. find that
Sawyer is accurate in his description of the events and that Cunningham's
testimony on this score is not as reliable as that of Sawyer.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
70. His transfer from Local 287 to Local 70 was never
accomplished.19
(4) Sawyer contacts Local 70
On or about January 6, Sawyer contacted Ybarrolaza by
telephone and informed Ybarrolaza that he had been
terminated. Ybarrolaza stated that he was aware of this
and noted that there was nothing that he could do about
the matter since Sawyer was not a member of Local 70.
Sawyer, thereupon, asked Ybarrolaza whether or not he,
Sawyer, had not been entitled to some sort of written
notice either from the Union or from the Company.
Ybarrolaza tersely responded and then terminated the
conversation by hanging up the telephone. Thereafter,
within the next few days, Sawyer conferred with A. N.
Leishman at the offices of Local 70. Sawyer explained the
events surrounding his termination and requested that
Leishman intercede on his behalf. Leishman declined to do
so, stating that Sawyer was not a member of Local 70 and
that the matter was one for Local 287 to handle.
In late January, Sawyer again contacted Leishman and
requested that he be supplied with a copy of the collective-
bargaining agreement between the Union and the Compa-
ny. Leishman stated that he was not entitled to a copy.
Sawyer then contacted Ybarrolaza. Ybarrolaza similarly
declined to make a copy of the contract available to
Sawyer, asserting that Sawyer was not a "dues paying"
member of Local 70. Soon thereafter, during the first week
of February, Sawyer, in possession of a copy of the Act,
went to the offices of Local 70. Sawyer spoke initially with
an office secretary and subsequently with Leishman.
Invoking the provisions of the Act, Sawyer asserted, both
to the secretary and to Leishman, that he was entitled to a
copy of the collective-bargaining agreement. The secretary
declined to provide him with a copy asserting that this was
a matter for an official of the Union to handle. Sawyer,
thereupon, spoke with Leishman and during an office
conference punctuated by a telephone conversation be-
tween Leishman and an official of the Labor Department,
whom Sawyer had earlier consulted, Leishman agreed to
supply Sawyer with a copy of the collective-bargaining
agreement. During the office conference, but prior to the
conversation between Leishman and the official of the
Labor Department, Leishman had again declined to
provide Sawyer with a copy of the collective-bargaining
agreement. However, in ultimately agreeing to provide
Sawyer with a copy of the agreement, Leishman observed
that he would have nothing further to do with the matter
and that Sawyer was going to have to "take the matter
back to his own local 287." Leishman reiterated to Sawyer
as the conference terminated that it was up to Local 287
"to do something about" Sawyer's termination.20
19 The foregoing is based on the credited testimony of John Goble
Goble also testified that he attended the November 1970 meeting at which
the question of contract ratification was discussed He further testified
credibly that during the course of the meeting his nonmembership in Local
70 was noted and that the shop steward asked him why he had not
transferred his membership Goble responded he had not done so because
the dues were cheaper in Local 287 The shop steward stated that he would
eventually have to effectuate a transfer
20 1 base the foregoing on the credited testimony of Ronald Sawyer
Sawyer's testimony concerning this series of contacts was convincing and I
After obtaining a copy of the collective-bargaining
agreement , Sawyer met with Fred Hoffman of Local 287.
Subsequent to that meeting, Sawyer filed the instant
charges, dated February 23.
d. The alleged basis for the termination
(1) The record entries
The compensation record for Ronald Sawyer maintained
by the Company and prepared by Mary Dykstra contained
an entry revealing the date of Sawyer's termination as
December 30. It also contained the related handwritten
entry, "had called in sick" Additionally, entered upon the
compensation record in the space provided for comments
relating to the reason for termination Dykstra had made
the following entry, "unsatisfactory work-nonunion."
This latter entry by Dykstra followed a previous entry
which had been partially crossed out or obscured. Dykstra
testified after examining the initial entry that she believed
that the entry which had been, in effect, deleted read
"would not join Local 70 union."
In explanation, Dykstra testified that the deletion had
been made because Cunningham had given her a "definite
explanation" with respect to the termination of Sawyer.
Dykstra surmised that the initial entry was made in the
normal course of business by her within a few days of the
termination. She further surmised that she was initially told
that Sawyer was terminated for not joining Local 70. In her
testimony, Dykstra further indicated the belief that the
second or final entry was made in the month of January
after she received a routine inquiry relating to Sawyer's
application for unemployment compensation. At that
juncture, Dykstra made inquiry to Cunningham, who
supplied her with the explanation which became the
second entry upon the compensation record relating to the
reason for the termination of Sawyer.
Dykstra further testified, in substance, that terminations
at the Company are infrequent and that in her experience
the Union had always been aware of them when termina-
tions occur. Dykstra testified that she did not undertake to
contact or otherwise notify the Union with respect to the
termination of Sawyer, because she assumed that the
Union was aware of the termination. Dykstra additionally
testified that because the employees of the Company are
represented by a union "it has to be verified definitely [on
the records] as to the reasons that they [employees] are
terminated."
(2) Post office complaints
Charles Della testified that during the course of Sawyer's
employment he received numerous telephonic complaints
from post office supervisors concerning Sawyer's work.
credit him Alex Ybarrolaza denies having conversed directly with Sawyer
at any time during the month of January I find that he is in error in this
regard Additionally, I do not accept the testimony of Ybarrolaza to the
effect that in early January during a grievance hearing at the offices of the
Union he was interrupted by the secretary and informed that Sawyer was
seeking a copy of the contract and was creating "a bit of fuss" Although
Ybarrolaza asserts that he informed the secretary that a copy of the
agreement could not be provided to Sawyer because the agreement had not
been completed and signed, I am not convinced that the Union's
declination was articulated in those terms
WENTCEL, INC. 837
Della conceded that no written complaints concerning
Sawyer had been received from the post office.
Specifically, Della testified that in early December he
observed Sawyer back his truck up to the docks at the post
office facility located at Seventh and Peralta in Oakland,
California, and abandon the truck. Della testified that he
approached Sawyer and asked him why he was leaving the
truck and Sawyer responded that he was going to obtain a
drink of water or go to the restroom. Della testified that it
is against post office regulations for employees of contract
haulers to enter the building or to mingle with the post
office employees. Additionally, Della testified that drivers
are required to remain with their trucks at all times and to
observe an electronic light system which by flashing from
green to red indicates when mail is either to be loaded from
the truck on to the conveyor belt system or to be withheld.
Della testified that on this occasion he instructed Sawyer to
remain with the truck and not to enter the post office
building.
Della testified that on this occasion the post office
supervisor to whom he spoke stated that Sawyer had been
guilty of leaving his truck on several occasions.
Cunningham testified that between October and mid-
December he received several complaints concerning
Sawyer. He testified that while Sawyer's work was
satisfactory during the first month of his employment, the
complaints began during October.
Specifically, Cunningham testified that on an occasion in
San Rafael a supervisor at that facility asked Cunningham
to caution Sawyer against throwing mail sacks in a careless
manner and failing to remain with his truck. In this regard,
Cunningham testified that the supervisor stated that
Sawyer had almost hit employees with mail sacks and that
he would abandon his truck for intervals at the dock.
According to the supervisor, Sawyer would not return to
the truck until after it had been opened and two or three
tiers of mail had been unloaded.
With less specificity, Cunningham also testified that on
"several occasions" supervisors at the Santa Rosa post
office had asked Cunningham to "caution" or "control"
Sawyer in his attitude toward employees of the post office
department and to obtain Sawyer's better cooperation with
the employees.
With respect to complaints received from Mountain
View postal supervision, Cunningham testified that on one
occasion he was asked to caution Sawyer to remain with
his truck and not to go to the post office platform or inside
the post office building. Additionally Mountain View
supervision had informed Cunningham that Sawyer was
not cooperating in performing the unloading function and
in picking up empty sacks and equipment for return to the
Oakland post office Moreover, Cunningham testified that
he had been informed by Mountain View supervisors of a
complaint lodged by a woman employee concerning
Sawyer's refusal to assist her in pulling heavy sacks
containing magazines. According to the complaint of the
female employee, Sawyer was leaving the heavy sacks for
her to handle while he would handle the lighter ones.
Sawyer conceded that he had been the recipient of
complaints concerning his unloading procedures at Moun-
tain View and at Oakland, as well as his lack of
cooperation with supervision in Oakland in failing to move
his truck as requested. With respect to the latter instance,
Sawyer testified that he was on his lunch hour and was not
required to follow the instructions of the supervisor. Della
requested that he cooperate.
Additionally, Sawyer testified that he requested Cun-
ningham to consider him for assignment to a run to Santa
Rosa. He was told by Cunningham that his request would
be declined because he had received "complaints" from
Santa Rosa about Sawyer.
Finally, Sawyer testified that he had been reprimanded
by supervision from the post office department concerning
an alleged lack of punctuality in fulfilling his scheduled
run. Sawyer testified, however, that his tardiness was
attributable to a rescheduling which was not conveyed to
him. He testified further that a notice concerning this
incident was posted on the board by Della or Cunningham.
Conclusions
In agreement with the General Counsel , I find that the
Company and the Union violated the Act in the manner
alleged in the complaint , as amended.
Initially, I find upon established precedent that the
Company violated Section 8(a)(1), (2), and (3) of the Act
and the Union violated Section 8(b)(1)(A) and (2) of the
Act by entering into and maintaining a collective-bargain-
ing agreement containing a union-security provision which,
construed separately or together with the related seniority
provision of the contract , did not allow the mandatory 30-
day grace period for attaining union membership.21 The
Act has been authoritatively construed as not requiring the
signification of advance intent on the part of new
employees to perfect union membership , and it is,
accordingly , unlawful for the parties to enter into and
maintain a union -security arrangement requiring employ-
ees to either apply for union membership in less than the
mandatory 30-day grace period or to attain that status.22
Moreover , separate and apart from the illegality of the
union-security provision of the contract , the interrelation-
ship of the union -security and seniority provisions of the
agreement herein is such as to have the possible operative
effect of requiring membership in the union to be perfected
in less than the 30-day period provided by the Act. This is
so because new employees are required by the agreement
to apply for union membership upon completion of the
second day of employment and because, at the option and
discretion of the Union , an employee is acceptable into
membership upon attaining seniority which accrues at the
completion of 18 days' employment . The record reveals
that a segment of the unit employees work a 5-day
workweek . It is thus highly probable , if not totally
predictable, that seniority would accrue to a new employee
21 See, e g , Red Star Express Lines of Auburn, Inc, 93 NLRB 127, affd 22 Argo Steel Construction Company, 122 NLRB 1077, 1082, enfd in
196 F 2d 78 (C A 2), Imperial Wire Company, Inc, 118 NLRB 775, 777, pertinent part 289 F.2d 491 (C A. 6), Philadelphia Sheraton Corporation, 136
Gottfried Baking Company, Inc, 103 NLRB 227, 244, 1 Oscherwitz and Sons, NLRB 888, 889, affd 320 F 2d 254 (C A 3)
130 NLRB 1078, 1079.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed upon such a work schedule before the expiration
of a 30-day period and that said employee would be
accepted into membership by the Union in less than 30
days. Accordingly, I find the embodiment of the aforesaid
scheme in the collective-bargaining agreement of the
parties deprives employees of the right guaranteed to them
under the Act to be free to engage or to refrain from
engaging in collective-bargaining activities, except as
permitted by the proviso contained in Section 8(a)(3), and
was, accordingly, violative of that section and of Section
8(b)(2). Moreover, the same conduct of the parties had, I
find, the effect of coercing and restraining employees in
violation of Section 8(b)(1)(A) and Section 8(a)(1) of the
Act.23
The conduct of the parties in entering into and
maintaining the aforesaid unlawful union-security arrange-
ment finds no refuge in the savings clause of the agreement
because the clause is not one which endeavors specifically
to modify the union-security provision but serves merely to
postpone until future litigation the determination of the
legality of any unspecified provision of the contract.24
Moreover, the unlawful effect of the conduct of the
parties is not alleviated in the circumstances here defined
by the asserted failure of the contracting parties to give
effect to the tainted provisions of the agreement 25
Applicable here is the observation of the Board in the
Pantlind case:
... there is no evidence-nor is a claim asserted-
that this deviation [from compelling employees to loin
the union within 30 days of hire] from the writing
resulted from any modifying agreement between the
parties. Rather, it appears that the Respondent Em-
ployer unilaterally followed a practice which did not
accord with an unambiguous writing, although it was
purportedly pursuant to that writing. While the Union
did not protest the practice, that itself does not
constitute an agreement to amend. [Citations omitted.]
In the instant case, the evidence of record relating to the
purposes and intentions of the parties in modifying the
previously lawful union-security provisions reveals not an
amendatory attitude, but a disposition toward a militant
policing and enforcement of the union-security arrange-
ment.
I additionally find that the terms of the collective-
bargaining agreement containing the unlawful union-secu-
rity provisions were in effect on December 30 when
Ronald Sawyer was terminated and that his termination
was violative of Section 8(a)(1) and (3) and Section
8(b)(I)(A) and (2) of the Act. My conclusion that the
agreement was in effect at the time of Sawyer's termination
is based on the finding, which I make, that prior to
December 30 the agreement had become legally binding
upon the parties by virtue of agreement achieved at the
bargaining table on and before November 3 and as a result
of the ratifying vote of the membership that transpired on
November 6. Subsequent to November 6, but prior to
December 30, a meeting of the minds was achieved
between Della and Ybarrolaza on subsidiary issues which
had not been resolved prior to December 6 and as a
consequence thereof, as of December 30, when Sawyer was
terminated, only two subsidiary provisions of the agree-
ment were left to be resolved. Beyond this only the
ministerial act of affixing signatures to the document
embodying the agreement of the parties remained. The
subsidiary issued upon which agreement was achieved
after November 6 were not submitted by the Union to the
membership for ratification and there is no showing in the
record that any term agreed on by the parties prior to
November 6 was modified or deleted.
In contradistinction there is conclusive record evidence
establishing that the wage provisions of the new agreement
were given effect prior to December 30 and there is reason
enough for concluding that, as of that date, neither
contracting party could have refused to execute the
agreement then under preparation for printing without
breaching its bargaining duty and incurring legal liability.
Stated otherwise, it is reasonably apparent from the record
that the two bargaining issues upon which Della and
Ybarrolaza reached accord in January were not at any time
treated by them as conditions precedent to the consumma-
tion of an agreement. Concomitantly, there is scant basis
for concluding that absent agreement on those provisions
either party would have sought to abrogate the terms which
had been ratified by the membership of the Union, or to
rescind the new wage terms which were manifestly
operative.
Upon the foregoing considerations, I conclude and find
that the Company and the Union agreed to be bound by
the product of their negotiations which transpired on and
before November 3; that the mutuality of their assent was
conclusively manifested by their conduct, including the
Union's ratification of the terms and the Company's
implementation of the wage provisions; that there existed
on and before December 30 corresponding and correlative
obligations on the part of each contracting party to honor
and abide by all of the terms of the agreement which had
been to that point in time negotiated; that the remaining
act of affixing signatures was ministerial in character; and
that the two minor provisions agreed to by the parties after
December 30 were supplemental in nature and were not
considered by the parties during the course of the
negotiations as prerequisites to a binding collective-bar-
gaining agreement.26
With the terms of the new agreement binding upon the
parties, Ronald Sawyer was terminated by the Company.
The evidence requires a conclusion that Sawyer was
terminated, at least in part, because he failed to transfer his
membership to Local 70. The record maintained by the
Company as well as the explanation proffered by Cunning-
ham leaves little room for doubt that this failure on
Sawyer's part was a moving cause in his termination, and
that his deficiencies as an employee were subordinate to
23 In the described circumstances, it is unnecessary to determine whether
unit employees working on the basis of a 4-day workweek would similarly
be affected in their statutory rights It is sufficient that the collective-
bargaining agreement would have this impact upon some of the employees
whose terms and conditions of employment are governed by the agreement
in question Cf Ferro Stamping and Manufacturing Company, 93 NLRB
1459
24 See N L R B v News Syndicate, 365 U S 695, Perry Coal v N L R B,
284 F 2d 910 (C A 7), Building Material Teamsters v. N LR B, 275 F.2d
909 (C A. 2).
25 Pantlnd Hotel Company, 175 NLRB 815
26 See 17 Am Jur 2d §§ 18-30.
WENTCEL, INC.
the principal consideration relating to Sawyer's nonmem-
bership in the Union. There is evidence sufficient to
establish that Sawyer was not faultless in the performance
of his work, and the Act makes no inroads upon the
freedom of an employer to terminate an inefficient
employee for cause. However, the Company's explanation
that Sawyer was an indifferent and inefficient employee
whose conduct had generated complaints is not so well
documented as to establish that Sawyer's work deficiencies
constituted the sole moving cause of his termination. In
any event these indications of shortcomings on Sawyer's
part may not stand as authoritative explanation in the face
of preponderating evidence to the contrary evolving as it
were, from official company sources. I thus reject as a
pretext the Company's explanation advanced at the
hearing that Sawyer was terminated solely for cause.
I additionally find that the General Counsel adduced
evidence requiring a finding that the Union caused the
Company to terminate Sawyer's employment. There is, to
be certain, no direct evidence that Ybarrolaza or any
official of the Union demanded the Company to terminate
Sawyer. There is, however, convincing evidence that in the
period proximate to Sawyer's discharge Ybarrolaza on
behalf of the Union was seeking to more effectively police
the union-security provisions of the collective-bargaining
agreement. To this end, as found, Ybarrolaza had been
successful in securing company acquiescence in union-
security provisions which were unlawful under the Act.
The agreement containing these unlawful provisions was in
effect when Sawyer was terminated. In coordination with
the emergence of these unlawful provisions, and just prior
to Sawyer's termination, Ybarrolaza spoke with Della
concerning three company employees who had not
transferred membership and, for his part, within a period
of a few days Della instructed his principal supervisor,
Cunningham, to terminate Sawyer, giving as one reason
Sawyer's failure to transfer to Local 70. Then in a virtually
contemporaneous manner, on the very day of Sawyer's
termination, at the instructions of Cunningham, another
nonmember of Local 70, employee Goble, went to the
Local 70 union hall and completed the necessary steps to
transfer to and obtain work clearance from Local 70. In
pursuing this course of action, Goble learned that his visit
had been anticipated by the union functionaries and that
his name was one of three on the list of employees so
expected. In the circumstances, and considering both the
previous efforts of Ybarrolaza to persuade Sawyer to
transfer to Local 70, and the attitude of indifference, if not
hostility, manifested by Ybarrolaza and other officials of
the Union to Sawyer after his dicharge, it would strain
credulity to find that the Union had remained neutral in
the matter and had played no role in bringing about
Sawyer's termination. It is, rather, imperative to find that
Ybarrolaza was bringing his policing efforts to full focus
upon the three members of Local 287 who had not
transferred to Local 70; that Sawyer was among the three
with respect to whom the Union was acting; and that the
27 N L R B v Jarka Corporation , 198 F 2d 618 , 621 (C A 3)
28 Id
29 N L R B v Local 776, Theatrical Stage Employees & Moving Picture
Machine Operators [Cascade Pictures Co of California], 303 F 2d 513 (C A
9), enfg 124 NLRB 842
839
Company acted with respect to both Sawyer and Goble in
light of union instructions.
It is essentially a question of fact in each case what has
caused an employer to discriminate unlawfully against
organized or unorganized workers.27 "This relationship of
cause and effect, the essential feature of Section 8(b)(2),
can exist as well where an inducing communication is in
terms courteous or even precatory as where it is rude and
demanding." 28 Direct proof of union complicity in an
unlawful termination is not essential if the sum of the
evidence supports the finding that the employer acted upon
the demand of the union.29 I am not persuaded that this is
a case wherein an employer for cause decided to terminate
a unit employee and the union forewarned merely washed
its hands of the matter. Despite Della's disclaimers which
were not credible and which were designed to give
credence to his own assertion that the termination of
Sawyer was one wholly for cause, I am convinced that the
Union's persuasive efforts held partial sway in Sawyer's
termination. Accordingly, I find that the Union caused or
attempted to cause the Company to terminate Ronald
Sawyer within the meaning of Section 8(b)(2) of the Act,
construed in light of Section 8(a)(3) of the Act.
Because I find that the moving cause in the termination
of Sawyer was his failure to transfer his membership to
Local 70, in implementation of the unlawful union-secunty
provisions contained in the new collective-bargaining
agreement between the Company and the Union, which, as
found, was in effect at the time of the Union's demand and
Sawyer's actual termination, I find that neither Respon-
dent finds defense to its actions deriving merely from the
fact that Sawyer had been in the employ of the Company
for a period in excess of the 30-day statutory grace period.
A collective-bargaining agreement which contains an
unlawful union-security provision may not serve as a
defense to a discharge.30 It is also clear that, as the union-
security clause did not comply with Section 8(a)(3) of the
Act, Sawyer's termination could not be predicated on that
clause.31 Rather, his termination for failing to transfer his
membership to Local 70 violated Section 8(b)(2) and
Section 8(a)(3) of the Act.32
Moreover, in agreement with the General Counsel, I find
that the Union violated Section 8(b)(1)(A) of the Act by
failing and refusing to assist Sawyer in his attempt to press
a grievance relating to the failure of the Company to serve
written notice upon him 5 days prior to his discharge as
required by the collective-bargaining agreement to which
the Company and the Union are parties.33
In Vaca v. Sipes, 368 U.S. 171, the United States
Supreme Court stated:
It is now well-established that, as the exclusive
bargaining representative of the employees in [the]
bargaining unit, the Union had a statutory duty fairly
to represent all of those employees, both in its
collective bargaining . . . and in its enforcement of the
resulting collective-bargaining agreement . . . . Under
this doctrine, the exclusive agent's authority to repre-
30 Panihnd Hotel Company, 175 NLRB 815.
ii id
"i2 Id
33 The predecessor agreement between the Company and the Union
contains an identical requirement
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sent all members of a designated unit includes a
statutory obligation to serve the interests of all
members without hostility or discrimination toward
any, to exercise its discretion with good faith and
honesty and to avoid arbitrary conduct ... .
It has long been Board doctrine that a union violates
Section 8(b)(1)(A) of the Act by failing to represent all
employees in the bargaining unit impartially, and by
discriminating against umt employees in the acceptance
and processing of grievances on which its aid has been
requested by employees it represents34 This duty imposed
upon a union under the Act extends to grievances of
discharged unit employees seeking to grieve their termina-
tion35 and proscribes union refusal based on the lack of
membership on the part of the grievance.36
It follows from the foregoing precedent and from the
evidence of record that the Union here violated Section
8(b)(1)(A) of the Act. Thus, evidence reveals that the
Union refused to in any manner assist , process, or
represent Sawyer in pressing his grievance arising from his
discharge and relating to the failure of the Company to
advise him in advance in writing as required by the
contract. Moreover, the evidence of record establishes that
the Union's reason and motivation for refusing to assist
Sawyer was his membership in Local 287 and his lack of
membership in Local 70.
Contrary to the Union, I do not perceive any inconsis-
tency in the theory of the General Counsel in alleging
union complicity in Sawyer's termination while at the same
time charging a breach of statutory duty on the part of the
Union in refusing to assist Sawyer in his efforts to grieve
his discharge. The Union adduced no evidence suggesting
it had a colorable basis for refusing to process Sawyer's
grievance and it is apparent in seeking to grieve his
discharge Sawyer was utilizing the grievance machinery of
the collective-bargaining agreement which the Union had
negotiated on behalf of all unit employees. In a circum-
stance such as that here prevailing wherein the Union by
its own conduct has rendered itself vulnerable to charges of
unlawful conduct and has no objective ground for
withholding its services, its plea of self-prosecution must
fail on principles of estoppel.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the operations of the
Company set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
34 Peerless Tool and Engineering Company, III NLRB 853, enfd sub nom
NLRB v Die and Tool Makers Lodge No 113, I A M, 231 F 2d 298 (C A
7), cert denied 352 U S 833, District 50, Local No 13366, United Mine
Workers of America (Stubmty Green Corporation), 117 NLRB 648, cf Selwyn
Shoe Manufacturing Corporation, et al, 172 NLRB No 81 (TXD), and case
cited therein , Coca Cola Bottling Corporation, 153 NLRB 1425, 1435-36,
The Youngstown Cartage Company, 146 NLRB 305, 308-309
as Local 485, International Union of Electrical Radio & Machine Workers,
AFL-GO (Automotive Plating Corp), 170 NLRB 1234, 183 NLRB No 131
V. THE REMEDY
Having found that he Respondents have engaged in
certain unfair labor practices, I shall recommend that they
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Company unlawfully terminated
the employment of Ronald Sawyer in violation of Section
8(a)(3) and (1) of the Act, and that the Union violated
Section 8(b)(2) and Section 8(b)(1)(A) by unlawfully
causing or attempting to cause Sawyer's termination, I
shall order that Respondents cease and desist from such
unlawful conduct and post appropriate notices . I shall
further order that Respondents, jointly and severally, make
Ronald Sawyer whole for any loss of earnings he may have
suffered by reason of the discrimination against him by
payment to him of money equal to that which he would
have earned as wages from December 30, 1970, to March
17, 1971, the date of Sawyer's reinstatement, less his net
earnings during said period, in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289, together with
interest in accordance with the policy of the Board as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
I shall order the Union to notify Ronald Sawyer in
wasting, with a copy to the Company, that it has no
objection to his continued employment consistent with the
union-security provisions of the collective-bargaining
agreement, as presently modified.
Finding that the Respondents are jointly and severally
liable for backpay and being of the opinion that in the
circumstances of this case Ronald Sawyer will be made
entirely whole for the loss of wages which he incurred as a
consequence of his termination, effectuated by the Compa-
ny but caused by the Union, I find it unnecessary and
inappropriate to make any additional assessment of
backpay against the Union.37
Nor do I, in the circumstances of this case, order the
Respondents to process or otherwise entertain a grievance
relating to Sawyer's termination or the conformity of the
Respondents' actions in discharging Sawyer to the provi-
sions of article IX, section 2(a) and (b), of the current and
applicable collective-bargaining agreement.38 The combi-
nation of a make-whole and cease-and-desist order here
serve both to eradicate the effects of the unlawful conduct
of the Respondents relating to Sawyer's termination and to
preclude a recurrence of such activity against Sawyer or
any other employee.
The evidence of record reveals that the Company and
the Union have, in writing, amended the union-security
provisions of the current collective-bargaining agreement
in a manner conforming to the requirements of the Act,
and have, by and through this amendment , effectively
obviated the possibility that employees who have attained
full seniority will be required to attain union membership
.16 Port Drum Company, 170 NLRB 555, 180 NLRB No 90, M Eskin &
Son, 135 NLRB 666, 670. enfd in pertinent part 312 F 2d 108 (C A 2).
17 Cf Local 485 , International Union of Electrical, Radio & Machine
Workers, AFL-CIO (Automotive Plating Corp), 183 NLRB No 131, and
cases cited therein at In 2
'N Cf Local 485, International Union of Electrical, Radio & Machine
Workers, AFL-CIO (Automotive Plating Corp), 170 NLRB 1234, Port Drum
Company, 170 NLRB 555
WENTCEL, INC. 841
in less than the statutory grace period. I find unnecessary
an affirmative order requiring the Respondents to excise
the predecessor union-security or seniority provisions
initially included in the current contract.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Wentcel, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7).
2. Brotherhood of Teamsters & Auto Drivers, Local
No. 70, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America is a labor
organization within the meaning of Section 2(5) of the Act.
3. By entering into, maintaining, and giving effect to a
collective-bargaining agreement containing an unlawful
union-security provision the Respondents have engaged in
conduct in violation of Section 8(a)(1), (2), and (3) and
Section 8(b)(1)(A) and (2) of the Act.
4. By terminating Ronald Sawyer because of his
nonmembership in the Union, the Company has engaged
in and is engaging in unfair labor proactices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. By causing or attempting to cause the Company to
terminate Ronald Sawyer because Sawyer was not a
member of the Union, the Union has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) of the Act.
6. By refusing to process Sawyer's grievance relating to
the procedural conformity of his termination by the
Company to the requirements of the collective-bargaining
agreement between the Company and the Union the
Union engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 39
ORDER
A. Respondent, Wentcel, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Including, maintaining, or continuing in its collective-
bargaining contract with Brotherhood of Teamsters &
Auto Truck Drivers Local No. 70, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, or any other labor organization, a clause
which requires, as a condition of employment, that new
employees within 2 days of being employed make
application for union membership; clauses which provide
both for the attainment of seniority after the completion of
18 days of employment in any 30-day period and for
eligibility for union membership upon attainment of
seniority; or which otherwise require membership in a
labor organization as a condition of employment, except as
authorized by Section 8(a)(3) of the Act.
(b) Discriminating against employees in regard to their
hire or tenure of employment, or any term or condition of
employment, except to the extent permitted by Section
8(a)(3) of the Act.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Jointly and severally with the Union make Ronald
Sawyer whole for any loss of pay he may have suffered as a
result of his termination, in the manner set forth above in
the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying all
payroll records, social security payment records, timecards,
personnel records, and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its Oakland, California, place of business, and
at all other places where notices to employees are
customarily posted, copies of the attached notice marked
"Appendix A,"40 Copies of said notice to be furnished by
the Regional Director for Region 20, shall, after being duly
signed by a representative of the Company, be posted by
the Company immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Company to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Mailed to the Regional Director for Region 20,
signed copies of "Appendix A" for posting by the Union at
its office and other appropriate places. Copies of said
notice, on forms provided by the Regional Director, shall,
after being duly singed by a representative of the
Company, be forthwith returned to the Regional Director
for such posting.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days of the receipt of this Decision, what
steps the Company has taken to comply herewith.4i
B. Respondent, Brotherhood of Teamsters & Auto
Truck Drivers, Local No. 70, International Brotheroood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Including, maintaining, continuing in its collective-
bargaining -contract with Wentcel, Inc., or any other
employer, a clause which requires, as a condition of
39 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
40 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 Sates Court of Appeals Enforcing an Order of
the National Labor Relations Board -
4i In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 20, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment , that new employees within 2 days of being
employed make application for union membership , clauses
which provide both for the attainment of seniority after the
completion of 18 days of employment within a 30-day
period and for eligibility for union membership upon the
attainment of seniority , or which otherwise require mem-
bership in the above labor organization as a condition of
employment , except as authorized by Section 8(a)(3) of the
Act.
(b) Causing or attempting to cause Wentcel, Inc., to
discriminate against employees in regard to their hire or
tenure of employment, or any term or condition of
employment except to the extent permitted by Section
8(a)(3) of the Act.
(c) Refusing to institute, process, or handle a grievance
of an employee in the collective-bargaining unit because
said employee is not a member of the Union.
(d) In any like or related manner restraining or coercing
employees of Wentcel, Inc., or any other employer, in the
exercise of rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment as authorized by Section
8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Notify Wentcel, Inc., in writing, with a copy to
Ronald Sawyer, that the Union does not object to Sawyer's
continued employment in accordance with the union-
security provisions of the collective-bargaining agreement.
(b) Jointly and severally with the Company make whole
Ronald Sawyer in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Post at its business office and meeting halls copies of
the attached notice marked "Appendix B."42 Copies of
said notice, on forms provided by the Regional Director
for Region 20, shall, after being duly signed by an official
representative of the Union, be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, on conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Union to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Mail or deliver to the Regional Director for Region
20 signed copies of the attached notice marked "Appendix
B" for posting by Wentcel, Inc., in places where notices to
employees of the Company are customarily posted.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days of the receipt of this Decision, what
steps the Union has taken to comply herewith 43
42 See fn 40.
43 See fn 41
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, a Trial Examiner of the National Labor
Relations Board found that we violated the National
Labor Relations Act, and ordered us to post this notice.
The National Labor Relations Act gives all employees
the right to get or keep a job even if they are not members
'of a union, except under certain conditions. Unless these
'conditions are met, the requirement to join a union in
order to keep ajob is illegal. The specific conditions which
,make that requirement lawful include:
(1) The requirement tojoin the union must be pursuant
to a lawful collective-bargaining contract.
(2) The contract involved must give the employees at
least 30 days after they are hired before they can be
required to join the union. However, employees who
work in the building and construction industry have
only 7 days to join.
The Act also protects an employee from a union's
;causing, or attempting to cause, his being fired for not
joining the union-if the requirement to join does not meet
the above conditions.
The Act also requires a union serving as the exclusive
,collective-bargaining representative of employees to fairly
represent all employees in the bargaining unit whether or
not they are members of the union. Therefore, when
requested by an employee in the unit to undertake to
process his grievance we may not refuse to do so merely
because the employee is not a member of the union.
A Trial Examiner of the National Labor Relations Board
found that we violated your legal rights under the above-
described provisions of the National Labor Relations Act.
Specifically, the Board found that we maintained a
contract which did not meet the above requirements of the
law; that we caused the discharge of an employee pursuant
to that illegal contract; and that we thereafter refused to
process his grievance relating to that discharge.
Accordingly, we give you the following assurances:
I. As to your rights as employees:
WE WILL NOT enter into, maintain, or otherwise give
effect to a collective-bargaining contract whose provi-
sions
require you to make application for membership
in the union within 2 days of being employed;
provide that you will attain seniority after
completion of 18 working days in a 30-day period
and, in conjunction therewith, permits the union
to accept you into membership upon attaining
full seniority;
require new employees to fill out applications for
membership in our union before 30 days follow-
ing their hire have elapsed; or
unlawfully discriminate against employees as to
WENTCEL, INC.
their hire or tenure of employment, or any term
or condition of employment.
II. As to the employee we caused to be fired
WE WILL notify Wentcel, Inc., in writing, that we
have no objection to Ronald Sawyer's continued
employment consistent with the revised union-security
provisions of our contract.
WE WILL also send a copy of this letter to Ronald
Sawyer.
WE WILL, together with Wentcel, Inc., make up any
pay Ronald Sawyer lost, with 6-percent interest,
between December 30, 1970, when he was unlawfully
discharged, and March 17, 1971, when he was reinstat-
ed.
III. As to our refusal to process a grievance
WE WILL NOT in an unlawful manner refuse to
institute or process a grievance of an employee in the
bargaining unit which we represent because he is not a
member of our union.
Dated By
843
BROTHERHOOD OF
TEAMSTERS & AUTO TRUCK
DRIVERS LOCAL No. 70
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS
OF AMERICA
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 13050
Federal Building, 450 Golden Gate Avenue, Box 36047,
San Francisco, California 94102, Telephone 556-3197.