Classic Truck Rental Corp.

National Labor Relations Board - Board Decisions

Aug 25, 1980

251 N.L.R.B. 443 (N.L.R.B. 1980)

CLA.~SSIC 1RUC`) RFNVAI4 (ORPK~ 443 Classic Truck Rental Corp. and James Parker and Herman McLean and Local 138, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Party to the Contract Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and James Parker and Classic Truck Rental Corp., Party to the Contract Classic Truck Rental Corp. and Automated Bread Co. and James Parker. Cases 29-CA-5993, 29- CA-6469, 29-CA-6580, 29-CA-7044, 29-CB- 3087, 29-CA-7072, and 29-CA-7155 August 5, 1980 DECISION AND ORDER By CHAIRMAN FANNING AND MEMHERS JENKINS AND PENEI.I O On April 24, 1980, Administrative Law Judge William F. Jacobs issued the attached Decision in this proceeding. Thereafter, counsel for Charging Party James Parker and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions' and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Classic Truck Rental Corp., Brooklyn and Great Neck, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. I The Administrative Law Judge relied on a letter from a state board (lf mediation arbitrator as a basis for finding that Jamnes Parker's suspen- sion did not violate the Act. We place no reliance )on he contelts of the arhitrator's letter in finding that Respondent Classic', disciplinary actions against Parker ere IIot unlawful Parker's nisconduct. particularly his "stealing time," provided sufficien cause for dlsciplinary action up to and including discharge Parker's continuing disregard for company rules. de- ,pite sexeral s.irnings. prompted Respondent Classic to file the notice of Inten to arbitrate Parker's discharge ltcause we find that Respondent Classic sas justified in lking this actioi. and thai Respnderlt Classic uas not mnlolt;lled h a ll\ll\rlemlent h Parker i prlleclted concerted aclti ies, II, subsequent uspen ion of Parker Bias la fftil Ni ecepr llon Were taken uith respect to tIhe Adlnilimratic I a Judge's other finld- InRg 251 NLRB No. 56 DECISIO)N S I I M N I A1 I n C,\ S li1 I \1 1-. J\(OBS. Administratise la\\ Jittdic These consolidated cases were heard before tilte i Brooklyn, New York, on December 18 and I9. 1978, anid January 29 and 30. February 1, and September 24. 17Q Charges in Cases 29-CA-5993 and 29 C1 H3(i87 kcere filed on October 19, 1977. by James Parker an indix idu- al. A consolidated complaint issued based on said charges on December 28, 1977, alleging that Respondent Classic and Respondent Union maintained a collectt\c- bargaining agreement covering driver and helper em- ployees of Respondent Classic but nevertheless refused to permit helper employees to become members of Re- spondent Union or to apply the terms and conditions of the collective-bargaining agreement to them. The consol- idated complaint further alleges that agents and supervi- sors of Respondent Classic threatened employees wnith discharge if they became or remained members of Re- spondent Union or if they gave assistance to or support- ed said Union. The consolidated complaint further al- leges that Respondent Classic also requested its employ- ees to sign a petition to remove James Parker as steward and promised employees additional work if the. would do s. Additional allegations contained in the colnsoli- dated complaint charge that Respondent Classic assigned Parker more arduous and less agreeable job tasks by re- moving his helper and changing his starting time and as- signed employee Eddie Pagan to more arduous anti less agreeable job tasks by removing his helper because Parker and Pagan had engaged in union and other pro- tected concerted activity. Said consolidated complaint additionally alleges that Respondent Union filed and re- fused to process a grievance filed by Parker because of arbitrary and irrelevant considerations and because he had attempted to assist the helpers obtain their rights and benefits under the collective-bargaining agreement. By the acts described in the consolidated complaint Re- spondent Classic is alleged to have violated Section 8(a)(1) and (3) of the Act and Respondent Union is al- leged to have violated Section 8(b)(1)(A) and (2) of the Act. Respondents filed answers denying the commission of any unfair labor practices. The charge in Case 29-CA-6469 was filed on June 1o, 1978, by Parker against Respondent Classic Complaint issued thereon July 21, 1978, alleging that Respondent Classic demoted Parker from his position as driver to that of driver-helper and refused to provide Parker. Pagan, and others with a fifth day of work while provid- ing such to other employees because of Parker's activi- ties as shop steward, because the other employees re- fused to sign a petition to remove Parker from his posi- tion as shop steward, and because of their having en- gaged in other unspecified protected concerted activities. Respondent Classic, in its answer, timely filed. denied the commission of any unfair labor practices. I Sanltiord Pollack. [Esq. appearing for Re, mideinl i tipl,,rs. ,,i pre o slI .i reniher lof Ihe las firm oi (iletirirti & , I ,1 k CLASSIC RCK RNTAL R 444 I)4 ( ISI()NS ()F NAIIO()NAI I.A1()R RFIlAII()NS t()ARI) Ihc cllar ge ill (C';tc 29) CA 58X() was filed August 2, 1')7S, h P'arkc-r giinst Rcspondenl Classic and con:- 1pl;aint issued threonl September 12 1978. alleging that Rcspnttilctil Classic filed a noticC of its intcnlion to arhi- itlc Ilic issue o' \hlicther it could discharge Parker be- cause of inefficiencies iln peri'rming his job and sought the discharge of Parker because he engaged in union and other concerted activilies and because he filed charges wxith the National abor Relations oard and gave testi- 1lonl tlliuner the Act Respondent Classic, by said acts, is alleged tIo have violated Section 8(a)(1), (3), and (4) of the Act. Respolldent Classic, in its answer, denied the commission of any unfir labor practices. On October 6, 1978, the cases in which complaints had been issued were consolidated for hearing. As indicated above, the hearing opened on December 18, 1978, and closed on February 1, 1979. On February 26. 1979, however, the charge in Case 29-CA-7044 was filed against Respondent Classic by Herman McLean, an individual, and on April 18, 1979, complaint issued alleg- ing that certain agents of Respondent Classic had warned and directed its employees not to become members of Respondent Union despite the fact that there was in ex- istence at the time a collective-bargaining agreement containing a union-security clause. The complaint further alleges that Respondent Classic failed and refused to pay McLean the wages and benefits to which he was entitled under the collective-bargaining agreement because of his nonmembership in Respondent Union. Finally, the com- plaint alleges the discriminatory layoff of McLean be- tween January 5 1979, and March 26, 1979, because of his attempts to become a member of Respondent Union.2 Respondent Classic filed an answer in timely fashion denyig the commission of the unfair labor practices al- leged. On March 12, 1979, arker filed the charge in Case 29-CA 7072 against Respondent C!assic and on April 30, 1979, complaint issued alleging that Respondent Classic suspended Parker because of his union and other protect- ed concerted activities and because he filed charges and gave testimony under the Act. On May 11, 1979. counsel for the General Counsel filed a "Motion To Further Consolidate Cases and To Reopen the Hearing." On May 25, 1979, the motion was granted. Meanwhile, on April 25, 1979, Parker filed the charge i Case 29-CA 7155. On May 30, 1979, the Regional Di- I coi pl.llit ln C(;ia, 29 CA 7(044 . am en ded or the ilbjectlioin ot c1 ul, t for1 R llp idrli Classic h addillg the allgatiln lhlat Mcl t an sis, d elnied a lfith d of w rk fr discrimi natory reasons Counel for R esp dc l i lasi c in hi brief argues thatl. y permi ing he ( eneral (C iSCllo Ii illlcd the c oll plainl after he. the General Couns el, had reled. Rspoll illl (.lassic's reTpresel l ait e Was denied an oppIolluiit l to contfrir, ll itl, cro-s ClMill r ll M I.ealn oln he issue The record does lot supporl Ihls coltenlio( . ihowe:er The fact is that. w ithin seconds of the (; ell al ( oiiC els' anInoInlcenllln thlai he was resting. Respondenl Cllassic also ested . nlt n immediately, the General Counsel mo,ed to amend tIe l nip l illt so ; s i hiave iit "comporl 'A:ih the testii moilN o1 Ihe rcclrd" l ilt rgard to tis issue the General Counsel explained tIlha t ie I ti illIlnle id to l l o c io ;alllnend before resillg and annot lnciid tIhlt ie k. A iS Il 1111 ll ill ltl er t) tndicale Iihat he Woulld not catlll a ll addiili n- iI \ 1 l llt'li. e ¥'1 C n the ( iiCl ll t.'IIIIl' s ll ll til (i llo a lCid ias graill i.d R-spolllet CL-%.ic % , lri'Cllll iiti e ,1 , gix t the oppor i toil reopenl i, . .'s .ai call Mcl can 'sh,, sa til i (tie h earing roo , anioie cse ho r pulrpows f c1ro%-callltill i ot n H tItlie dclied the ffer Masil ing 1 ssill r i tihc rec lld is it ow xl.iss and will rt" rector for Region 29 issued an order consolidating cases, : and consolidated amended complaint and notice of hearing providing for consolidating Case 29-CA-7072 with Case 29 CA-7155. The consolidated amended com- plaint contains all of the substantive allegations contained in the complaint which issued on April 30, 1979, in Case 29-CA-7072 but also alleges that Respondent Classic Truck Rental Corp. and Respondent Automated Bread Co. are joint employers, and that Automated Bread Co. terminated Parker because of his union and concerted ac- tivities and because he filed charges and gave testimony under the Act. Respondent Classic and Respondent Automated Bread Co. filed a single answer denying all substantive allegations. The issues are as framed by the allegations and an- swers as outlined above. All parties appeared at the hear- ing and were afforded full opportunity to be heard and to present evidence and argument. Briefs were filed by Respondent Employers and Respondent Union. Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACI I. JURISI)ICTIONAI. FACS Classic Truck Rental Corp. is a New York corporation with its principal offices and places of business located in the borough of Brooklyn, in the city of New York and in the village of Great Neck, both in the State of New York, where it is engaged in the business of performing produce transport services and related services. During the year immediately preceding issuance of the initial complaint herein, Respondent Classic, in the course and conduct of its business, performed trucking services valued in excess of $50,000, of which services valued in excess of $50,000 were performed for various enterprises, each of which is in interstate commerce by reason other than indirect inflow or indirect outflow. The complaint alleges, the answer admits, 4 and I find that Respondent Classic is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act., II. HI. I HOR ORGANIZAI'ION INVOI V.I) Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. At lic timle l it Regionll iucd il (l tel r ItillS diltilg (ail se 2 ( CA 7072 ,:ilt (Case 29-CA 715. n1 I l i order cnlili lda(ig Case 29 CA 7072 w ilh Ihe earlier cases aid reopening Ihe haring had alread issued Sinlce the hearing had been reopened. a questulin clncerning further onsolidation wuld nmore apprpniately h andle(l through mtion Io me raiher than through aln order from he Regioin When Ihe hearing was Teellrened on September 24, 17, a mlotill toi coi,ohlidate Case 29 CA 7155 il h the earlir cases las rlentertained and graltle Responde t', IlOtse1 '\ As ioffcd adil dit lll lll iti i prepare his defenls e Respe ondelnt lassi : ilnletl ed its allster s ;al l he caritlg t il admii llU Jui tti on Il rl' Atlilaiet. tJtta Ci i lobtailtd hs si rttl e If Its heg i a oilnt ellplsl s itih Clas ic. Ihe illtl.ai;ll tlf tltch is d liscl s , d init ra IK ./(X tllilh'-,tnrll Ieri/zl'r ( ld il f/iti lu I Pritiic r (I. l , NI R 8h2 (119h ) CL.ASSIC TRU:CK RFNTAI CRP.' 44' III. THE UNFAIR I ABOR PRAC IICES Al I F(il)" Classic Truck Rental Corp. is engaged in the transpor- tation and delivery of produce, bread, and other mer- chandise to retail stores.' Among its employees are driv- ers, helpers, and driver-helpers. Mark Jacobson is its president, a position he has held since 1972. Cases 29-CA-5993 and 29-CB-3087 James Parker. one of the Charging Parties herein and an alleged discriminatee. was first employed by Respond- ent Classic on July 18. 1972, as a driver-helper delivering produce. At the time, Classic employed approximately 10 drivers and a like number of helpers, one to assist each driver. During the first year or two of his employment at Classic, Parker drove. About a year after he was hired Parker was given his own route and became a full-time driver with an increase in wages, though occasionally he still worked as a helper. In May 1974, the Union undertook to organize the drivers at Classic Truck Rental Corp. No attempt was made to organize the helpers and no authorization cards were distributed to or signed by the helpers.8 At no time thereafter were Classic's helpers asked to join Respond- ent Union.9 Following the organization of the drivers, Respondent Union and Respondent Classic commenced negotiations which successfully resulted in the execution of a collec- tive-bargaining agreement. The contract which became effective as of June I, 1974, contains the following pre- amble: AGREEMENT THIS AGREEMENT made and entered into as of this -- day of June 1, 1974 by and between CLASSIC TRUCK RENTING located at 21 Can- terbury Road, Great Neck, L.I.N.Y. hereinafter re- ferred to as the Employer and the FURNITURE. FLOUR, GROCERY, TEAMSTERS & CHAUF- FEURS LOCAL UNION #138. NEW' YORK, N.Y. AFFILIATED WITH THE INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS. CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA. hereinafter referred to as the Union. to govern wages, hours and condi- tions herein set forth for Chauffeurs, Helpers, Extra Help, Inside Men, Warehousemen, etc. Based upon the mention in the preamble of "Helpers" as a classification of employees and the fact that Re- spondent Classic employs helpers, the General Counsel has taken the position that Respondent Classic's helpers are covered by the contract. The General Counsel also takes the position that inasmuch as Respondent Classic's ' uring he hearing Resplndent Classic sought t have te instant case deferred It arbitration. citing Collyer Insulated ire. .4 Gul andl Western Stemrni Co. 192 NL RH 837 (1971) I declined to d so General Amricran runiportauron Corporation,. 228 NRB 808 11977) 7Classic delicr, largetI fo r K Foodsd Ahbrahan) Price presidcnl i f the Union. credibhI testified on his maulter lhs tesirllni .\as supporied b that of Perr) alker aln ildl d- ual enlplo)cd hb Classic al it helper ' errs ,';llkel testified .lhout olltrildl ctilon helpers are covered by the 1974 contract and admittedl\ have not received the wages and fringe benefits de- scribed therein. Respondent Classic has, along Awith Re- sponden t Union. maintained and enforced all arraillc- ment. understanding. and practice hereunder helpers have not been permitted to become members of Re- spondent Union and whereunder the colleclixe-bargain- ing agreement has not been applied to them. The Getner- al Counsel maintains that, although Respondenl Classic's employees are covered by the 1974 hargainig agree- ment, they have not been a warded the fruits of hat agreement because they are not members of Respondetl Union. Respondent Union argues that the 1974 contract xas designed to cover drivers (chauffeurs) (nly. not helpers: that Respondent Union never attempted to or:gani/e RK- spondent Classic's helper employees and nex er did si, The evidence supports Respondent Unllion' argentl for the record clearly indicates that no helpers ere cr ric quested to join the Union and none .er paid duies or ii- tiation fees. Similarly, Respondent Union also arguis that the preamble contained in its 1974 bargaining agreClement with Respondent Classic is purely boilerplate language, used in similar contracts for the lat 50 or 6() cars and was never intended to identify employees ill specific job classifications emrnployed by Respondent Classic \hich iit represents. To support this contention Respotindent Union offered into evidence other bargaining agreements con- taining similar language and pointed out that. although certain classifications of employees may ha e been men- tioned in the boilerplate preamble, Respondent Union represented only those classifications mentioned ill the preamble if those classifications of employees a crce men- tioned elsewhere in the bargaining agreement and , crc assigned a specific wage rate. Apropos its argument, Respondent points out that im its 1974 contract ith Respondent Classic, il article 2 where wage scales are laid out, only chauffeurs' ;x ages are specified and there is no mention in article 2 of the agreement of the other possible classifications of orkers described in the preamble. 12 In other collective-bargaining agreements" with other employers which Respondent offered into e idence in order to show its general practice. \where Respondent Union represents classifications other than chauffeurs. namely, helpers. warehousemen. and machine operators. the wage scales, unlike in the instant case, are laid out ill article 2 of those agreements, specifying the precise amount to be received by employees in each classifica- lion. Thus, only if classifications of employees appear l the wage scale section of the agreement ith specific wages assigned to such classifications would those classi- So credibhi testified Unioln Rpreseita iec Araha riti re arid iil- plicce helper Perrs Walker. ' Resp Union's Exh 3 t () her such possible classificaions l s i Helper. ' xtra help, t 11il( Men,. Warehlusenln. etc" 111 Responldent Ut111io , brief II i Cru1\ ils Ini IN argued that the listing of polible cla fi caiio ,i tarld ill, le pi- iamble calil he colsidered i s'pecific llIlt stliptll inll' iti llll Ibe u r et- .t" `llch if iCt N to tld ill akC t a it l ,ljitp , o \agie i, Io con ite]i , to nitak 1ilapptplilt S cc Rep t al,,, I i i CLASSIC TRUCK RENTAL CR 445 440 DECISIONS OF NATIONAl LABOR RELATIONS O()ARD fications he included in the unit and represented. If, on the other hand, certain classifications of employees happen to he mentioned in the preamble, and employees in said classification are, in fact, employed by the em- ployer-party to the contract, but said employees are not assigned a wage scale, these employees are not in the unit. are not represented by the Union. and the Union claims no jurisdiction over them. I ind Respondent's argument convincing and I con- clud., in accordance with the testimony of the wit- nesses14 testifying on the subject as well as an analysis of the exhibits offered, that the 1974 labor agreement be- t-eet Respondent Classic and Respondent Union was ne\er meant to cover the helpers, that the Union there- fore never intended to represent the helpers or to apply its labor agreement to them. A labor organization need not represent employees if, in good faith, it honestly chooseS 11ot to d(lo so. 5 Prior to 1974 Respondent Classic's employees were driving 5 days per week. In that year, however, the Em- ployer announced that there would no longer be a fifth day dlivery but that employees would be provided with other work in order that they could be paid for working 5 days. Thereafter they washed trucks and trailers, swept, and did odd jobs on the fifth day. This fifth day's work was set up on a revolving seniority basis whereby one or more employees would report on a Wednesday, the nondelivery day, while the others stayed home and were paid for half a day. Certain employees did not care to wash trucks and so did not work the fifth day at all. i Others would wash one truck and then go home for the day. This displeased management. Neither management nor employees were satisfied with the system. Another means utilized by the Employer to provide a fifth day of work for its employers was to assign one or more of them to make what was known as the Philadel- phia run. This consisted of a driver being assigned the task of driving one of the Classic trucks containing empty bread racks to Philadelphia and returning with a load of bread for the Automated Bread Company. The assignment was initially made on the basis of rotating se- niority and employees were compensated by payment of a full days' pay for the single trip to Philadelphia. On oc- casion drivers would be requested to make a bread run to Philadelphia outside his regular hours, rather than as a fifth day. Thus, on a Sunday or on a weekday after com- pleting his day's work a driver might be asked to make a run to Philadelphia. On these occasions his acceptance or rejection of the opportunity was optional and, if he chose to make the run, he was paid $30 over and above 4 Jamrel '.rker, the Charging Party herein. admitted that the 1974 labor agreerentll otlly cosered drisers. ' Lo 1,al 44 ud 'ashington State .4sociaion o( the United Association f orl;ilnr aUtnd .pprentic es of the Plumbing and Pipefirtting Induqtry of the I'mlltrl Statur and Canada (Indutrial Contracting Co.), 195 NLRB 225 (' 7 2). affd 82 IRRM 2687. 70 LC '13,448 (9th Cir. 1972). International Rrothrrhhod oJ Electrical Workers. AFL-'IO0-CLC (Steinmertz Electriwal Contractors tlssoiation, Inc. ) 234 NLRB 633 (1978). ' According to Mark Jacobhson, the president of Clasic. James Parker ad ised manlagement in 1974 that he did not want to wash trucks Parker testified that he worked the fifth day washing trucks, sweeping, and doing odd o,hs .land died complaining about it to management Since JaciLhs(itl admnillted ome doubt in hi, lestimony, I credit Parker on this poiln his regular wages for each run. It was possible sometime to make two such runs in I day at 30 per run. All Phila- delphia runs were assigned by members of Classic's man- agement, made in Classic trucks, and compensated for by Classic checks. Although, as noted above, the Philadelphia run as as- signed initially as a regular work day (fifth day) on a ro- tating seniority basis, eventually the employees with the most seniority began to insist that they be assigned that run on Wednesdays, the day that produce deliveries were not being made, to the exclusion of the less senior men. A controversy arose when other drivers com- plained that, if they had to make the Philadelphia run after completing their regular day's work, it would be too late in the afternoon. 17 Clearly, the $20 difference in compensation between making the run as a fifth work day for $50 and making it late in the afternoon for $30 most certainly must have added to the dissatisfaction of those receiving the lesser sum. Thus, certain of the driv- ers made it plain that they did not wish to make the Philadelphia run for $30 while others were receiving $50 for the same work. Parker began making the Philadelphia run in 1976 and did not complain at first since he needed the extra money. 8" Later he, along with others, became discon- tented with the situation and made his feelings known just as they did. He spoke with the other drivers on an individual basis and it was generally felt that, because the drivers sometimes had to wait for a long time in Phila- delphia, it just was not worth the 530 to make the run. The general discontent and refusal of certain employ- ees to accept assignments of the Philadelphia run result- ed in Jacobson's calling a meeting of employees and criticizing them for refusing to do the work which he had made available. Though some of the employees indi- cated that they feared reprisals or discipline for refusing the work which the employer had made available, by the end of the meeting the issue still had not been resolved, and it was still left up to the individual driver as to whether he would accept the Philadelphia run or not. The 1974 contract was due to expire on June 1, 1977. Therefore, the employees in the unit got together some- time prior thereto and elected a negotiating committee. Parker, who had been a member of the Union since late 1974 or early 1975, did not attend the meeting but was nevertheless elected to the negotiating committee. There- after, he met with the other drivers to discuss what they wanted included in the new contract. Significantly, Parker testified that it was his understanding that he, as part of the bargaining committee, was to bargain on behalf of the drivers only, not the helpers. In fact, the only time the helpers were discussed during negotiations, according to Parker, was when someone suggested that, if the Employer should terminate the helpers, the drivers might in that way obtain more money. The 1977 contract negotiated by Abe Price as repre- sentative of the Union, the negotiating committee, and ' According to the testimony of Parker '* Parker was also, upon occasion, permitted to make a late afternoon run in lieu of reporting in for a scheduled Wednesday run and vsas corm- persalted for it a though it were a fifth dab CLASSIC TRUTCK RENTAL CRI' 447 Classic was, in all relevant parts, basically the same as the 1974 labor agreement. That is. it contained the same boilerplate language mentioning "Chauffeurs. Helpers, Extra Help. Inside Men, Warehousemen, etc.," but limit- ed its actual coverage in the body of the instrument to chauffeurs and contained a wage scale provision cover- ing only chauffeurs or drivers." Price credibly testified that the 1977 contract was intended to cover chauffeurs only, not helpers. Although the 1977 labor agreement, like the 1974 contract, contains a union-security provi- sion, the record contains no evidence that the helpers were ever required to join the Union or that at any time prior to the execution of the 1977 contract they request- ed membership in the Union. Throughout the entire term of the 1974 agreement and for several months after the execution of the 1977 agreement, the helpers received wages and benefits entirely different from those provided for in the two Teamsters labor agreements. They had nothing to do with the Union, paid no initiation fees or dues, filed no grievances, and were considered by every- one, including themselves, to be outside the unit. I find, contrary to the General Counsel's allegation, that the Union did not represent the helpers or anyone else de- scribed in the boilerplate language contained in the pre- amble of the two labor agreements except the chauffeurs, that the helpers were outside the recognized bargaining unit, and that the Union therefore had no obligation to represent them, nor any duty to insist that the Employer extend the provisions of the collective-bargaining agree- ment to them. 2 Similarly, I find, for the same reason, that the Employer had no obligation to extend the wage scale or other benefits contained in the labor agreements to the helpers or other employees outside the unit and I recommend that the paragraphs contained in the com- plaint based upon such allegations be dismissed. As noted earlier the means by which a fifth day's work was provided by Classic to its drivers, the washing of trailers and the trips to Philadelphia, proved not alto- gether satisfactory to the drivers and, since some of them refused these assignments and others complained about them, management too became dissatisfied with the ar- rangement and in 1977 discontinued the fifth day of work. As Mark Jacobsen testified: I had exhausted, at this point, about every means of creating a fifth day's work. We had tried one year to wash trailers. We tried-I created some work, this Philadelphia work. But everything seemed to fall flat. It never-there was always a hassle. Rather than put up with the "hassle" Jacobson discon- tinued this fifth day's "makework" despite the fact that a number of employees had been grateful for the opportu- nity to get in a full week's work regardless of the type of labor involved. 19 The new wage scale was determined b arbitration. the aard dated July 15. 1977. being retroactive to June 1, 1977 The helpers were not discussed at the arbitration. 10 Inasmuch as the helpers are outside the bargaining unit, the ,4irborne Freight line of cases is clearly inapposite International Brotherhood of Teamslers. Chauffeurt, Warehouseren and Helpers of Amrnerica. Local N.Vo 671 (Airborne Freight Corporation of Delaware), 199 NLRB 994 (1972) Parker, according to Jacobson, was one of those em- ployee s averse to washing trucks for a fifth day's wages but Parker denied this. Tony Passaro, dispatcher 2 and general manager for Classic, testified that he had asked Parker to go over and wash trucks to make his fifth day's wages and that Parker stated that he was not inter- ested in washing trucks and did not really care about working the extra day. I credit the testimony of Jacob- son and Passaro over the denial of Parker. Parker was also one of the employees who was not particularly anxious to make the Philadelphia run in order to obtain a fifth day's wages. He admitted that when asked by the dispatcher 2 if he wanted to make the Philadelphia run, at the end of the day, after com- pleting his regular run, he would decline the opportuni- ty. One Sunday in mid-July 23 he was called at home and requested to make the trip to Philadelphia. Parker's wife told the caller that he "wasn't going to go to Philadel- phia for no $30." On August 4, Parker reported for work and. according to Parker, Sal Ross, the dispatcher, told him not to punch his timecard, that he had something else for him to do. When Parker asked the dispatcher what he wanted him to do, the dispatcher replied that he wanted Parker to go to Philadelphia to pick up two loads. Parker then asked Ross how he was going to get paid and was told that he knew the deal, meaning, according to Parker's understanding, 30 per load. Parker replied that he was not going to go to Philadelphia unless he got paid on the clock, that is, unless he was paid contract wages. Ross then stated that if Parker did not go to Philadelphia he would not have anything for Parker to do that day. Parker, having nothing to do, waited around the rest of the day until John McNeil, the shop steward, reported back in at which time he advised him of the in- cident. McNeil told Parker that he would set up a meet- ing with Jacobson concerning the matter. The following day, August 5, a meeting took place, at- tended by Parker, McNeil, Joe Walker, a driver and a member of the negotiating committee that negotiated the contract, and Mark Jacobson. Jacobson told the group that he would not pay Parker for August 4 because he had flatly refused to go to Philadelphia. 2 4 According to Parker, he asked McNeil what he intended to do about his day's pay but received no immediate response. After waiting a couple of days, he again asked McNeil what 2i Jacobson admitted Passaro's supervisory authority 22 Sal Ross. the dispatcher at the time. the record indicates. had super- visory authority He is since deceased 2a Hereinafter all dates are in 1977 unless otherwise indicated 2: Respondent takes the position that the August 4 run to Philadelphia was a regular assignment to Parker because he had not made that run earlier in the week and had not worked 4 days He was therefore obligat- ed to accept the assignment, and could not refuse to go to Philadelphia a, he could if it had been an offer of a fifth day's work. Parker. on the other hand, appears to have taken the position that he was free to reject the Philadelphia run whether or not it was a fifth day's work or part of his regular 4-day workweek unless he was paid the contract age. Though Parker admitted on the record that he had never before been paid on the clock for the Philadelphia run, he asserted that he refused to make that run on this occasion unless paid on the clock because he was afraid of being detained in Philadelphia, as sometimes occurred. and thereb) re- stricted to just one trip, thus being limited to 30 for the day, a sum which he argued was not worth the effort CLASSI TR C RE TA C(Rt 4 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would happen regarding his pay for August 4. McNeil replied that he had been unable to get in touch with Price. Thereafter, according to Parker, he tried to con- tact Price himself concerning his pay for August 4 but was unsuccessful. On August 12,25 1 week after Jacobson advised Parker that he would not be paid for August 4, Parker was handed a memo, disciplinary in nature: August 12, 1977 To: James Parker Please be aware that it is your obligation to do any run that you are designated by our dispatcher, Sal Ross. On August 4, 1977, you were assigned a Philadel- phia run, but you flatly refused to accept the assign- ment. May this letter constitute a last reprimand. A repeat of this situation will lead to dismissal from employment. Very truly yours, /s/ Mark Jacobson MARK JACOBSON, PR iS. cc: Local 138 Office James Parker When Parker received the August 12 disciplinary memo concerning his refusal to take the Philadelphia run on August 4, he brought the memo to the attention of his shop steward and asked McNeil to contact the Union for him. Parker waited a couple of days, then asked the ste- ward what had been the result. McNeil once again ad- vised Parker that he had been unable to contact Price. Parker then called the Union himself, spoke with the re- ceptionist and told her, apparently in Price's absence, to tell Price that he would like to talk with him. Parker was not immediately contacted by Price however, and he did not discuss the August 4 incident or the August 12 disci- plinary memo with Price until a month and a half after the August 4 incident had occurred, 26 and that would place his discussion with Price concerning these connect- ed matters in mid-September. Meanwhile, sometime in mid or late August an elec- tion for a new shop steward was held. Only the driv- ers 2 7 participated in the election and Parker was elected. Just after his election, and about a week after his leaving his message with the receptionist at the Union's office, according to Parker, he wrote a letter2 8 to Joseph Trer- 2. According to the credited testimony of Mark Jacobson, a certain period is set aside each Friday for management to discuss work problems which may have arisen during the week. It is at this time also that mat- ters requiring discipline may be discussed with employees. Both August 5 and 12 were Fridays At the time this disciplinary memo was issued to Parker. he had not yet filed a grievance or brought the August 4 incident to the attention of anyone besides McNeil. '2 Parker so testified 2 The helpers did not participate in the election. When testifying con- cerning the election of August 1977, Parker admitted that the helpers were not covered by the contract. In earlier testimony he had insisted that they were. >. Parts of the letter, written in longhand, are totally illegible. Teamsters, intimating by the context of his testimony that his letter was in pursuance of his pay for August 4. The supposed letter29 to Trerotola was not, however, addressed to him but was apparently a copy of a letter written and addressed to Price: 2940 W. 2st St. Brooklyn, NY 11004 Abe Price Pres. Local 138 I.B. of T.C.W. and H. of A. 1038 Jackson Ave. Long Island City, N.Y., 11101 Dear Sir and Brother, The men of Classic Truck Rental Corp. _--3 are members of Local 138 in good standing with the Union. Their Agreement with Classic Truck Rental has been broken. The men are not working their fifth (5) day and the Agreement calls for forty (40) hrs. Their seniority rights are not being upheld. Men on the lower scale are taking all the bacon home. They feel on the whole that this shop is unorga- nized and they are calling on you to organize the unorganized. These men have not received their new medical cards. The men want to know why their pension fund does not start until June 1, 1979. And what happened to all of the past pension funds. Helpers must be put into the Union (good steady working helper). The Labor Dept. said that the agreement must be upheld -- enforced by the Union. And if these things -- to them. And we will bring the Union Joint Council No. 16, The Eastern Confer- ence -- President if the - have to -- Members I) James Parker SS [shop steward] 2)-Herrera 3) Joe Walker 4) Frank De Bellis 5) Daniel J. Brown 6) Name scratched out 7) Eddie Pagan 8) Israel Castro 9) Ray Phipps yours truly, James Parker, SS Trerotola's reaction to the receipt of Parker's letter was to refer the matter to Price for handling, a copy of his cover letter and of Parker's letter being forwarded to Parker. At one point in his testimony Parker stated that, after he received the letter from Trerotola, Price came 2' I find, for reasons stated hereinafter, that the letter offered int, ei- dence as the one sent to rerolola h Parker i mid-August could nol have been sent then. he letter so identified a's clearly ritten at a much later date. :3o Blanks indicate portions of the letter hich are undecipherable Note that the letter is undated CL.ASSIC I-RUCK RENTAL CORP. 449 down to the shop and told him that he would take Park- er's case to arbitration in order to get him his day's pay. Elsewhere. Parker testified that Price had already prom- ised to take Parker's case to arbitration in a couple of weeks and that he, Parker. wrote to Trerotola only after waiting more than a couple of weeks for Price to take some action. He stated, "So I gave him sufficient time to get the arbitration together." Because of this discrepancy in Parker's testimony concerning his grievance and al- leged promise of arbitration, and the absence in the letter3 ' of any direct mention of Parker's personal griev- ance or of arbitration, I do not credit Parker with regard to this matter where his version differs from that of Price. According to Price, he did, in fact, discuss with Parker his claim for a day's pay based on the August 4 incident. The discussion3 2 took place at the Employer's place of business following a telephone call which Parker made to Price during which Price agreed to talk with Parker the following Friday when he would be at Classic for his regularly scheduled weekly meeting. When Price arrived Parker asked him about the day's pay which he claimed was owed to him by the Employ- er. He asked Price to process his grievance. Price told Parker that the Philadelphia run was out of his jurisdic- tion, that Local 138 had nothing to do with the oper- ations at Automated Bread Co. and therefore he could not handle the matter. Price testified that, although Mark Jacobson was the employer at Automated as well as at Classic, the Philadelphia run was not the normal oper- ation as far as Classic was concerned and that the Phila- delphia run was work which was within the jurisdiction of another union, Local 239, which represented the em- ployees of Automated and which operated out of a dif- ferent warehouse. Price denied having negotiated with Classic concerning the Philadelphia run and on the basis of the above explanation refused to take Parker's griev- ance further. There is nothing in the record to indicate that, after Price explained to Parker his reasons for not pursuing his grievance, Parker was not satisfied. On the contrary, Parker did nothing thereafter to show that he expected further action. On October 19 when Parker filed his charge against the Union, he did not mention in that charge the August 4 incident nor did he mention himself by name. Rather, the October 19 charge states: :I Although the General Counsel offered Parker's letter to Price as an attachment to Trerotola's letter of August 22. I do not believe that Exh 5H was the proper attachment to Exh 5A Not only does Parker's letter fail to mention his grievance or arbitration but Parker testified concern- ing a meeting in October during which he showed Price a petition signed by nine employees containing various grievances which he told Price he would he receiving later in the mail This petition appears to have been attached a GC Exh. 5H to G.C Exh 5A in error Clearly if Price were to receive this petiion for the first time after the October meeting it could not have been attached Io Trerotola's letter of August 22 In that case, the General Counsel never offered documenltar substantiation in the form of a copy of 'arker's letter toI Trerotol a to support his itstinlo- ny concerning his effort, t file a grievance based on the August 4 illnci- dent horrl. xh 5 obs hiousl did not come to Price's attentio in August through I rerotola ' Parker dated this discussion as occurrillg in mid-September Price did not upply .1 date. other thin 177 Since on or about October 11, 1977, the above named labor organization by its officers, agents and representatives, has arbitrarily refused to process the grievance of certain employees of the below named employer concerning the failure of said em- ployer to adhere to its collective bargaining agree- ment with said labor organization with respect to seniority, hours, medical and pension insurance benefits and other terms and conditions of employ- ment. By these and other acts, the above named labor organization has restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. Thus, it is patently clear that, whatever gave rise to the filing of the charge on October 19, it was not any- thing that occurred in August. Rather, it appears that the grievance which is the subject of the October 19 charge against the Union has to do with a problem which arose on or about October II, just as stated in the charge. It has nothing to do with Parker's loss of a day's pay on August 4 but rather with the Union's alleged refusal to process a grievance of certain employees concerning the failure of Classic allegedly to adhere to its collective-bar- gaining agreement "with respect to seniority, hours, medical and pension insurance benefits and other terms and conditions of employment." These matters are the subject of the petition drawn up by Parker in October and mistakenly attached to Trerotola's letter to Price of August 22. Thus, when Price was advised on or about August 22 through Trerotola3 3 that Parker wished to pursue the August 4 matter, as alleged in paragraph 17 of the complaint, and when he discussed that matter with Parker in September and refused to proceed on the matter, as testified to by both Price and Parker, he could not have done so for the reason asserted, namely that Parker had attempted to assist the helpers obtain their rights and benefits under the collective-bargaining agree- ment, as alleged in paragraph 18 of the complaint, be- cause there is no evidence that Parker had at that time done anything to assist the helpers obtain such rights. That happened later. The allegation also contained in paragraph 18 of the complaint in Case 29-CB-3087 that the Union failed and refused to process Parker's griev- ance for arbitrary and irrelevant considerations is also devoid of evidentiary support. On the contrary, the evi- dence indicates that the Union refused to process Park- er's grievance because it concerned work which Price did not consider unit work, that when he told this to Parker, Parker accepted this explanation and did not pursue it further. The evidence further indicates that, at the time Price refused to process Parker's grievance, Parker had not yet undertaken to assist the helpers to obtain union representation and there was therefore no reason for the Union to deny him proper representation because of the protected activity alleged. In my opinion P'rice's reasons for refusing to process the grievance, when viewed in the light of the history of the special :':' The coser letter as caplioned "Re Memhber Complaint. James Parker" CLASSIC TRUCK RENTAL CORP q 450 I)-'CISI()NS OF NA-IONAL. I.ABOR RELAIIONS BO()ARI) nature of the Philadelphia run assignment, cannot be considered either irrelevant or arbitrary. I therefore rec- ommend that paragraphs 17 and 18 be dismissed. Parker testified that, in late August or September, sometime while he was steward, he was approached by the helpers and asked about their joining the Union. Parker testified that he, Joe Walker, Eugene Herrera. Frank DeBellis, Izzy Castro, and one or two others, all drivers, went to the union hall to talk with Price. Price was not present so, according to Parker, they talked to Secretary Treasurer Vilardo. They asked Vilardo to see a copy of their contract to which Vilardo agreed. They then asked him why they, as drivers, were receiving a pay scale $20 below that received by other produce driv- ers. The record does not reveal whether or not Vilardo answered this question. The drivers asked several other questions of Vilardo and Parker requested a copy of the constitution and bylaws which Vilardo promised to supply. The drivers had not been accompanied on the visit to the union hall by the helpers but nevertheless supposedly inquired whether they were covered by the contract. Vilardo allegedly replied that the only thing that the helpers were missing in this contract was a wage scale, that they had everything else. Parker was the only witness to testify concerning this visit to the union hall. Neither Vilardo nor any of the drivers was called.3 4 Though Vilardo may indeed have stated his opinion that the helpers should have been getting everything under the contract that the drivers were receiving except for the wage scale, I find his statement not binding on the Union since he apparently had nothing to do with nego- tiating the contract, and had no part in organizing Clas- sic's employees. In short, there was no foundation laid upon which one could conclude that Vilardo's under- standing of the contract's coverage was superior to that of Price, who had negotiated and was policing the con- tract. At no time after his discussion with Vilardo did Parker advise Price of Vilardo's opinion concerning the cover- age of the helpers by the contract nor did he talk to Price about whether they were covered. Nevertheless, he did tell the helpers in accordance with Vilardo's opin- ion that they were entitled to everything that the con- tract covered except drivers' wages. Parker testified that he told this to several of the helpers who approached him on the subject in September, but none was called to testify concerning these discussions except Perry Walker. Parker testified further that he tried to assist the helpers as much as possible and as shop steward this was his duty. He added however that his first loyalty was to the union men so he would see that the union men would go out on a job before the helpers. He also testified that as shop steward it was his job to see that anyone who worked 30 consecutive days on the job was taken into the Union. :" The Ge(neral COInII.el had driver Joe Walker subpcnaed Io estif to Ihis and otrher rmatters Iloer, Walkr l Iir 11 t appear al the healillng Hisi te, Inot , .cvn if corrohoratei, of Parker's tcstinOlly, sould not affect he decisionll on ll 11s IsLe Perry Walker: ' supported Parker's testimony by stat- ing that he did, in fact, seek to join the Union by speak- ing to Parker about the matter. This discussion was in October and occurred in the presence of several other drivers and helpers. Walker complained to Parker that the helpers were not getting holiday pay or sick leave and stated that he would like to join the Union. Parker promised to speak to Price about it. When he did so, Price told him that the helpers could not join the Union.:a ' Parker reported Price's statement to Walker but added that he, Parker, would try to get sick leave, holidays, and vacations for the helpers. At this same meeting or at another one, also occurring in early October, between Parker, Walker, and certain other drivers and helpers, Walker again advised Parker of his interest in joining the Union. Parker told those present that there was a union meeting scheduled for Oc- tober 7,37 that Price would be there, and that they were invited to attend. Parker said that at that time he would put the question to Price as to why the helpers were not allowed to join the Union. In the meantime, other matters came to the fore which were of great concern to the employees, particularly the fact that they were not getting in a 5-day week. The Employer by October 1977 had long since discontinued its practice of permitting the driver to earn a fifth day's pay by washing trucks at the Automated Bread Co. warehouse, because of the problems connected with it. Similarly, Jacobson had discontinued the Philadelphia run because of the refusal of some employees, including Parker, to accept that assignment without a hassle. Nev- ertheless, because a number of drivers were still interest- ed in finding some means of obtaining a fifth day's em- ployment, Parker, as steward, sought out Jacobson to discuss with him the means by which a fifth day's wages could be obtained. According to Jacobson, Parker approached him, as steward, on the subject of a fifth day's work, sometime in late August, September, or early October, asking in particular what Classic would be having the men work at during the forthcoming winter, as opposed to previous winters. Parker advised Jacobson of his unwillingness to have the men wash trucks and sweep down the ware- house as a means of earning the fifth day's wages. He proposed that Jacobson pay the men 5 days' pay for working 4 days. Jacobson replied that Parker's sugges- tion was absurd. Parker countered that the men were hauling the same amount o produce in 4 days that they had been hauling in 5 days. Jacobson denied that this was the case and offered Parker an opportunity to look at the logbooks. He also argued that he did not control the amount of a day's work, that Key Foods made that : 'Perry W'alker. a helper, is not to be conflused with Joe Walker, a drirer and a mrember of the Union :` Since it has been established that the helpers cere outside the unil, 'rice aid the Unionl could lalfull decline to oflfer them membership in the U]nio or to represeCnlt tihem /Intertl muinrr!li rolhrhood / i E/c rli IlorAr. 4111.-('10O-('LS ( t c'ze l/ iricla/ (mllrudc/ori Awnl , iiio. limr ). rupru. :17 rjiti rtetirigs vsere ,lrtiirnai, held (