Freight Drivers and Helpers Loc. Un. No. 557

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1117 (N.L.R.B. 1975)

FREIGHT DRIVERS AND HELPERS LOC. UN. NO. 557 1117
Freight Drivers and Helpers Local Union No. 557,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America and Liberty Transfer Company, Inc. Case
5-CB-1581
June 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND KENNEDY
On February 25, 1975, Administrative Law Judge
Arthur Leff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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.
Relations Board, by the Regional Director of Region 5,
issued a complaint dated October 10, 1974, and an
amendment to the complaint dated October 30, 1974,
against the Union named above, Respondent herein,
alleging that Respondent had engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) and
8(b)(3) and Section 2(6) and (7) of the National Labor
Relations Act, as amended, by conduct hereinafter
specified. Respondent in its answer denied the commission
of the alleged unfair labor practices. A hearing was held at
Baltimore, Maryland, on November 14 and 20, 1974.
Following the hearing briefs were filed by the General
Counsel and by Respondent.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Liberty Transfer Company, Inc., a Maryland corpora-
tion with its principal offices in Baltimore, Maryland, is
engaged in the operation of a freight terminal and in the
intrastate and interstate transportation of freight by motor
carrier. During the past year, a representative period, the
Company received gross revenues in excess of $50,000
from the interstate transportation of freight. Respondent
admits, and it is found, that the Company is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
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 Administrative Law Judge and
hereby orders that Respondent, Freight Drivers and
Helpers Local, Union No. 557, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Baltimore,
Maryland, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
ovenule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
In the third paragraph of the section of his Decision entitled "The July 26
incident," the Administrative Law Judge inadvertently found that "Miller
engaged in the assault and threat of assault attributed to him by Miller."
From the record, it is clear that Salmon, not Miller, perpetrated the assault
DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Administrative Law Judge: Upon a
charge filed by Liberty Transfer Company, Inc. (the
Company) on August 21, 1974, and amended on Septem-
ber 26, 1974, the General Counsel of the National Labor
218 NLRB No. 170
II. THE LABOR ORGANIZATION INVOLVED
Freight Drivers and Helpers Local Union No. 557,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen , and Helpers of America, the
Respondent herein , is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Complaint's Allegations
The complaint charges Respondent with having violated
Section 8(b)(1)(A), and Section 8(bX3) as well, by engaging
in the following alleged acts and conduct: (1) filing internal
union disciplinary charges against Robert Miller, an
employee of the Company and a member of Respondent,
because he had testified on behalf of the Company in an
arbitration proceeding involving the discharge of another
union member; (2) notifying Miller to appear before
Respondent's executive board for a hearing on the internal
union charges filed against him; (3) threatening Miller at
the hearing held on such charges with a fine and/or
expulsion from. Respondent because he had testified on
behalf of the Company against a member of Respondent;
and (4) also threatening Miller "and other members whose
names are unknown" with such union disciplinary action
should they in the future testify in arbitration proceedings
on behalf of the Company against any member of
Respondent. The complaint, as amended, avers additional-
ly that Respondent violated the same sections of the Act by
two alleged acts of assault or threats of assault alleged to
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been engaged in by Respondent 's -job stewards
against Miller because he had testified on behalf of the
Company in the arbitration proceeding , one by William
Salmon on July 26, 1974 , and the other by Salmon and
Ralph Clayton, jointly, on September 17, 1974.
B. Consideration of the Allegations Based on the
Filing and Processing of the Internal Union Charges
Against Miller
1. The relevant facts
The Company is an I.C.C. authorized motor carrier
operating principally between terminals in Baltimore,
Maryland, and Jersey City, New Jersey, and employing
approximately 50 employees. The Company's drivers and
mechanics are represented by Respondent. The collective-
bargaining contract to which the Company and Respon-
dent are parties contains provisions for the arbitration of
grievances.
On April 11, 1974, the Company discharged Ralph
Clayton, one of its road drivers, allegedly for a verbal
assault on the Company's president. Clayton's discharge
was made the subject of a grievance which was referred to
arbitration pursuant to the provisions of the -collective-
bargaining contract. A hearing in the arbitration proceed-
ing was held on July 24, 1974. Robert James Miller, a road
driver employed by the Company and a member of
Respondent, testified in the arbitration proceeding as a
witness on the Company's behalf. The arbitrator subse-
quently decided the grievance in favor of Clayton and
ordered his reinstatement . Clayton returned to work for the
Company on August 26, 1974.
At the time of his discharge on April 11, 1974, Clayton
was Respondent's shop steward for the Company's drivers,
having been elected to that post about a year earlier by
Respondent's members employed by the Company. One of
the issues litigated in this case was whether Clayton
continued to occupy the status of shop steward during the
period of his discharge, more specifically at the time when
he is alleged in the complaint to have acted as Respon-
dent's agent in filing the internal union disciplinary charge
against Miller to which reference will later be made. As will
appear below, Clayton identified himself as "Road
Steward" in filing that charge. Respondent, however,
insists that Clayton did not actually occupy that status at
the time. As evidence that Clayton retained his steward's
status , notwithstanding his discharge, the General Counsel
points to a letter , in evidence, dated April 22, 1974,
addressed to the Company by Respondent in which the
Company was advised that "Ralph Clayton has been re-
elected to serve as Shop Steward for the road employees of
your company." He also points to documentary evidence
in the record showing that Clayton on one occasion shortly
after his discharge, acted as Respondent's steward in filing
a grievance with the Company that was processed under
the contract's grievance procedures. There is, however,
evidence to the contrary. Thus, it appears that sometime in
late April or early, May, the Company in a letter to
Respondent expressed its objection to Clayton coming on
the Company's premises to handle grievances, now that he
was no longer in the Company's employ. As a result of the
Company's objection, Respondent, by letter dated May 10,
1974, advised the Company that "Mr. William, Salmon has
been appointed to serve as Shop Steward until the case
against Mr. Clayton is resolved." Leaving aside his charge
against Miller, filed on July 26, in which Clayton
represented himself as Respondent's steward for company
employees, there is no indication in the record that Clayton
at any time between May 10 and the time of his
reinstatement ever acted or purported to act as a shop
steward, or that Respondent held him out as such. Robert
Constantine, the Company's president, testified that it was
his understanding after May 10 that Salmon, not Clayton,
was Respondent's road steward for company drivers.
Respondent's bylaws define the authority of its shop
stewards as being limited to the following duties and
activities: (1) the investigation and presentation of griev-
ances in accordance with provisions of the collective-
bargaining agreement; (2) the collection of union dues and
initiation fees; and (3) the transmission of messages from
Respondent or its officers to employee members: The same
restrictions on a steward's authority are written into the
collective-bargaining agreement to which the Company
and Respondent are parties.
On July 26, 1974-2 days after Miller had appeared as a
witness on behalf of the Company in the arbitration
proceeding-Clayton filed with Respondent the following
mtraunion charges against Miller:
I hereby charge Robert Miller with falsely accusing me
of things I never said. He came into an arbitration case
on the company's behalf and purgering [sic] himself at
that time for personal gains, by trying to get a brother
teamster discharged for the sole reason of moving into
my seniority spot. So at this time I am requesting the
local union # 557 to bring this brother in front of the
executive board and take whatever action is necessary
against this so-called brother.
Business Agent Ralph Clayton
John Lorenz Road Steward
Local # 557 Liberty Transfer
The name of Business Agent John Lorenz, which appears
at the foot of the charge along with Clayton's signature,
was written in by Clayton. Clayton testified that he
inserted Lorenz' name because it had been his customary
practice after he became steward to include the name of
the Respondent's business agent assigned to the Company
in all letters he submitted to the union hall. Clayton
admitted that before drafting his charges against Miller. he
discussed the matter with Lorenz and solicited the latter's
advice as to whether or not he should file the charge. But
according to Clayton, Lorenz simply told him that the
decision was one which he would have to make for himself.
Following receipt of Clayton's charge against Miller,
Joseph Fabula, Respondent's president, "checked into" the
matter by contacting Business Agent Lorenz, and also
consulted with Respondent's counsel , Bernard W. Ruben-
stein . Lorenz informed Fabula about the "facts" of the
arbitration proceeding in which Miller had testified.
Rubenstein, as appears from his credited testimony,
advised Fabula that if the basis of Clayton's charges
FREIGHT DRIVERS AND HELPERS LOC. UN. NO. 557 1119
against Miller was that Miller had falsely testified against
Miller for personal gain, Respondent's executive board had
a right to consider that issue and to take whatever action it
deemed appropriate if that charge were proved, but that
the executive board should take no action at all if the only
issue involved was the truth or falsity of Miller's testimony.
Fabula testified that after consulting with Rubenstein he
decided to give Clayton an opportunity to present his case,
but at the same time also decided that the executive board
should "just go through the motions" of a hearing and not
render any decision on Clayton's charge against Miller.
On August 12, 1974, Respondent forwarded a copy of
Clayton's charge to Miller, and notified him that Respon-
dent's executive board had scheduled the matter for
consideration at a meeting of that body to be held on
August 23. Miller was requested to attend this meeting with
his witnesses and was warned that his failure to appear
would not prevent the executive board from taking action
against him.
On August 21, 1974, the Company filed its original
unfair labor practice charge in this proceeding. The charge
averred that Respondent was unlawfully restraining and
coercing Miller in the exercise of his Section 7 rights by
bringing him before its executive board on charges arising
from his appearance as a witness for the Company in an
arbitration proceeding on a union grievance. A copy of
that charge was served on Respondent on August 22.
Miller attended the August 23 executive board meeting
as directed, bringing with him as a witness Paul Braun, the
Company's night road dispatcher, who had also been a
witness at the arbitration hearing involving the Clayton
grievance. Clayton came to the meeting with William
Salmon as his witness. Members of the executive board
present were President Joseph Fabula, Secretary-Treasurer
Arthur Woodford, Vice President Wilbur Willinger, Re-
cording Secretary Nathaniel Harris, and Trustees Norman
Scott and Ellsworth Bailey. Business Agent John D.
Lorenz, although not a member of the executive board, was
also present. Although the meeting was chaired by Fabula,
Woodford, it appears, was the member of the executive
board who played the leading role in conducting the
hearing on the charge against Miller.
Woodford explained that Miller was specifically being
tried for the offense defined in article XIX, section 6,
paragraph 5, of the Teamsters International constitution,
which reads: "Abuse of fellow members or officers by
written or oral communication." Clayton, who was called
as the first witness , made a statement, which basically was
the same as that contained in his written charge, adding
only, as appears from Clayton's own testimony, that Miller
had "made statements on the street to other employees that
if I got my job back he was going to quit, and things like
that[" So far as this record discloses, Clayton made no
attempt to support by specific evidence his conclusory
charge that Miller had testified falsely "for personal gain,"
nor was he asked to do so. After Clayton completed his
statement , Salmon was called as a witness for Clayton.
1 This relates to the incident involved in the complaint's allegation that
Salmon, as an agent of Respondent, had assaulted or attempted to assault
Miller because he had testified on behalf of the Company in the arbitration
proceeding , an allegation to be considered in a subsequent subsection of this
Decision.
Salmon stated that he had been harassed and embarrassed
by abusive language from Miller at a Jersey City restaurant
on July 26.1 This, of course, had nothing to do with the
subject of Clayton's charges against Miller. Miller, who
was then called to state his position, took issue with
Salmon's accusation and countercharged that Salmon had
assaulted him with a brick. That matter does not appear to
have been pursued further. With respect to Clayton's
specific charges, Miller insisted that at the arbitration
proceeding he had done no more than tell the truth. To
support that statement he offered to take a lie detector test,
an offer that met with no response. Miller also denied that
he had made the other statements attributed to him by
Clayton. Braun, whom Miller then called as witness on his
behalf, supported Miller's statement that he had told the
truth at the arbitration proceeding, and asserted that
Clayton's charges to the contrary were false and motivated
by malice.
No effort was made by any member of the executive
board to cross-examine Miller on his statement that he had
told the truth, or otherwise to explore the accuracy of
Clayton's charge in that respect. Miller was asked whether
the Company had paid or promised him anything for his
testimony in the arbitration proceeding. He stated that the
Company had not. Except for that single question, the
executive board, so far as this record discloses, manifested
no particular interest in considering Clayton's accusation
that Miller had perjured himself for "personal gain." From
the questions asked of Miller and from the declarations
made to him by executive board members, it is evident that
the executive board in considering the matter before it was
primarily concerned, not with the truthfulness of Miller's
testimony in the arbitration proceeding, but rather with the
fact that Miller, by testifying on behalf of the Employer,
had, as one member put it, gone "against a union member
... especially a steward."
Thus, the record shows, Woodford asked Miller why he
had testified on behalf of the Company against Clayton in
the arbitration proceeding. And when Miller replied that
he had done so only because the Company had requested
his presence as a witness , Woodford told Miller that he did
not have to honor the Company's request .2 Woodford told
Miller that, even if what Miller had testified to was true, he
should have remained silent and not have said anything
against a fellow union member, especially his shop
steward. In that connection, Woodford referred to the
"code of ethics" followed by doctors and lawyers under
which, Woodford said, one doctor or lawyer would never
testify against another, and indicated that union members
were expected to guide themselves by a like "code of
ethics." Going further, Woodford reminded, Miller of the
oath Miller had taken when he joined the Respondent, and
also quoted from provisions in Respondent's bylaws which
imposed an obligation on Respondent's members to
contribute to the unity and, strength of the Union, clearly
implying thereby that he considered Miller's testimony
against Clayton at the arbitration proceeding to be
2 At that point, Woodford turned to Business Agent Lorenz and asked
him whether he had advised Miller that he did not have to testify Lorenz
replied that he had not because he did not want to prejudice the Company's
case.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inconsistent with the loyalty he owed his fellow members
and the Union. "We have enough problems defending our
members against charges made by management," Wood-
ford told Miller, "without having our members joining
management to testify against-our own people." During the
course of these comments , some of which were joined in by
other members of the executive board, Woodford asked
Miller if he knew what could happen to him if he testified
against a "brother." When Miller said no, Woodford told
him that Respondent could withdraw his card or fine him.3
Woodford asked Miller whether he would testify against a
fellow union member if he became involved in a similar
situation again. Miller assured the executive board that he
would not, stating that if he had known that he did not
have to comply with the Company's request to appear as a
witness at the Clayton arbitration he would not have done
50.4
At the conclusion of the executive board meeting on
August 23, Miller was informed that a decision on
Clayton's charges against him would be mailed to the
parties. No decision, however, was thereafter rendered.
After Miller left the meeting that day, the executive board
voted to table decision for "at least a week." Shortly
thereafter, Fabula discussed the matter with Respondent's
counsel Rubenstein, who, as appears from his testimony,
advised Fabula - to have the executive board table the
matter indefinitely without any action because of the
unfair labor practice charges that had been filed by the
Company against Respondent.
2. Analysis and concluding findings
The initial question is whether it is a violation of the Act
for a labor organization to impose, or threaten to impose,
purely internal union sanctions upon an employee-member
for appearing as a witness on behalf of an employer in an
arbitration proceeding arising from a grievance presented
by the labor organization on behalf of another member. I
am satisfied both on the basis of principle and precedent
that it is. The right guaranteed employees by Section 7 of
the Act to assist or refrain from assisting labor organiza-
tions .is sufficiently broad to include within its scope the
right of an employee to appear as a witness in a proceeding
to which a union is a party and to give testimony
supporting or opposing the union's interest in that
proceeding. It is no less an infringement of that statutory
right for a union to discipline or threaten to discipline an
3 At another point during the course of the meeting, Fabula cited an
episode in Jersey City that had come to his attention where an employee at
management's request had testified against a fellow employee and later had
been shot and killed by the employee against whom he testified. The
General Counsel does not contend that this constituted a threat of union
reprisal.
4 With one exception , all of the factual findings contained in the above
paragraph are based on undisputed testimony , much of it from Respon-
dent's own witnesses . The sole exception relates to the finding that
Woodford told Miller that Respondent could withdraw his card or fine him
for testifying against a fellow member. That finding is based on the
mutually corroborative testimony of Miller and Braun. The others present
at the August 23 meeting , all of whom were called as witnesses for
Respondent, either denied or disclaimed any recollection of such a threat
having been made. On the basis of my appraisal of the overall testunony of
all the witnesses , my observation of their demeanor while testifying, their
clarity of recollection, and the probabilities of the situation, taking into
account the undisputed testimony of other statements made by Woodford
employee for testifying on behalf of an employer than it is
for an employer to retaliate against an employee for
testifying on behalf of a union. Nor does the proviso to
Section 8(b)(l)(A) shelter a union from Board remedial
action in such a situation because the discipline taken or
threatened is confined strictly to internal union sanctions
not affecting the employee's job status. It is now well
established that the immunity accorded a union by the
proviso with respect to the internal enforcement of its rules
and policies is not an unqualified one. The proviso, it has
been held, does not leave a union free to enforce union
rules or policies which serve no legitimate union interest or
run counter to other public policies of an overriding nature
that Congress has imbedded in the labor laws .5 The
repression by a union of testimony can scarcely be viewed
as serving a legitimate union ' interest. And for clear
evidence 'of a Congressional policy against such repressive
action, one need only refer to Section 10(a)(4) of the Labor
Management Reporting and Disclosure Act, which pro-
vides in relevant part that "No labor organization shall
limit . . . the right of any member [thereof] to appear as a
witness in any judicial, administrative, or legislative
proceeding . . . ." Board precedent supports the proposi-
tion that a union trenches upon employee Section 7 rights
in violation of Section 8(bXl)(A) of the Act, by charging,
trying, and fining employee-members for giving testimony
adverse to the union. It has been so held, not only where
the testimony was given in an unfair labor practice
proceeding,6 but also where it was given in a grievance-
arbitration proceeding. Cannery Warehousemen, etc. (Mart-
in Ball), 190 NLRB 24 (1971); International Brotherhood of
Painters Local Union 1066 (W. J. Siebenoller), 205 NLRB
651(1973).
The complaint alleges in substance that Respondent
violated the Act by (1) filing an internal union charge
against Miller; (2) processing the charge for a hearing
before its executive board; and (3) threatening Miller at the
hearing with union sanctions-all because he had testified
on behalf of his employer against Clayton in the arbitra-
tion proceeding. At the hearing, the General Counsel
contended that Respondent violated the Act by each of the
foregoing alleged items of conduct, as well as by its entire
course of conduct.
at the time relating to the obligations of members to one another and to the
Union, I am persuaded that Miller and Braun were telling the truth on the
matter in conflict, and credit their testimony . Moreover, even if Woodford
had not expressed in haec verba the threat attributed to him by Miller and
Braun, I would find that Woodford 's other statements, which it is not
disputed he did make, were calculated in the setting in which they were
made to convey to Miller such a threat by implication.
5 Charles S. Skura, 148 NLRB 679 (1964); N.LR B v. Industrial Union of
Marine & Shipbuilding Workers ofAmenca, AFL-CIO, 391 U.S . 418 (1968);
Scofield et al (Wisconsin Motor Corp ) v. N.LR.B., 394 U.S. 423,429 (1964)
N.LRB. v. Local 294, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America [August Bohl Contracting Co.], 470
F.2d 57, 60 (C.A. 2, 1969). See also National Grinding Wheel Co., Inc., 176
NLRB 628 (1969); Blackhawk Tanning Co., 178 NLRB 208 (1969); Smith
Lee Co., Inc., 182 NLRB 849 (1970); Spitler-Demmer, Inc., 184 NLRB 608
(1970).
6 Spitler Demmer, Inc., supra
FREIGHT DRIVERS AND HELPERS LOC. UN. NO. 557 1121
Respondent's responsibility for filing the charge signed
by Clayton presents, as noted above, an issue of fact. I
resolve that issue in favor of Respondent.?
Respondent contends that its action in noticing Clay-
ton's charge for a hearing before its executive board and in
summoning Miller to appear at that hearing involved no
violation of the Act, even under the principles stated
above, because Clayton's charge as drawn did more than
accuse Miller of having given testimony against Clayton; it
accused him of having given perjured testimony for
personal gain. That accusation, Respondent says, had "at
least prima facie validity," entitling Clayton to a hearing
thereon under its constitution and bylaws. Respondent's
contention rests on the premise that if Clayton's specific
accusations could be proved, they would provide a lawful
basis for disciplining Miller. The validity of that premise is
highly questionable. It seems to me quite clear , that
Respondent's executive board could not have lawfully
disciplined Miller simply upon a fording by it that his
testimony at the arbitration hearing was false or perjured.
The statutory right of an employee to be protected from
union discipline for giving testimony adverse to a union
would be a precarious one if the union were nevertheless
left free to be its own judge of the truth or falsity of the
testimony given and to discipline the employee upon a
finding by it that the testimony was pequred.8 It is true
that here the accusation of perjury was coupled with an
accusation that Miller's false testimony was motivated by
considerations of personal gain ("moving into my seniority
spot"). Whether this alters the situation is doubtful. For
Miller's motivation for testifying adversely to Respondent's
position could be a matter of legitimate concern to
Respondent in a disciplinary proceeding only if Miller's
testimony were also determined to be false, and, as stated,
if employee rights are to be protected, a determination of
that sort seems scarcely one to be entrusted to the biased
judgment of the Union against whose interests the
testimony was given.
I find it unnecessary, however, since'it is not critical to
decision in this case, to resolve the question of whether
Respondent's action in noticing Clayton's charge for
hearing-standing alone and without reference to what
followed-constituted an independent violation of Section
8(b)(l)(A) of the Act. For it is clear that the real "offense"
of Miller with which Respondent was concerned, and for
which Miller was tried, was the fact that he had testified at
all on behalf of his employer and against a fellow union
member-and this without regard to whether or not his
testimony' was true or false or motivated by reasons of
personal gain. As reflected by the findings made above,
Respondent utilized the hearing before its executive board
to impress on Miller that it regarded his conduct in that
respect as inconsistent , not only-with the "code of ethics"
7 I am satisfied from, all the evidence bearing on that issue that Clayton
was no longer acting as Respondent 's steward when he filed the charge,
having been, earlier supplanted in that position by Salmon. Although it
appears that Clayton consulted with Business Agent Lorenz before filing his
charge , Clayton denied that Lorenz induced or encouraged him to take the
action he did, and there is nothing in the record to support a contrary
finding. The fact that Clayton identified himself as "Road Steward" in
signing his charge provides no sufficient basis for imputing responsibility to
Respondent for its filing. It, is a well-established principle of law that an
individual's status as agent cannot be proved by his own declarations to that
to which its members were expected to adhere, but also
with his obligations as a member of Respondent. The
statements to. Miller to that effect-particularly when
considered in the setting of the union disciplinary proceed-
ing in which they occurred-were obviously calculated to
convey to Miller the threat that he was subject to union
disciplinary sanctions for giving testimony against a fellow
union member in an arbitration proceeding in which
Respondent was involved. Nor did Respondent leave that
threat to implication alone. As found above, Respondent's
secretary-treasurer expressly warned Miller that he would
risk expulsion from union membership or union fine
should he again testify against a "brother," and also
exacted from Miller a promise to refrain from testifying
against a fellow member if he again became involved in a
similar situation. Respondent's conduct in processing
Clayton's charge in this manner was thus clearly coercive,
even though Respondent did not itself initiate the charge.
Nor was the coercive character of its conduct lessened by
the fact that Respondent tabled Clayton's charge without
taking any action in it.
In summary, I find that Respondent engaged in a course
of conduct violative of Section 8(b)(1)(A),,by subjecting
Miller to an internal disciplinary trial before its executive
board because he gave testimony adverse to Respondent's
position, in a grievance-arbitration proceeding, by impress-
ing on Miller at the hearing that his conduct in giving such
testimony was inconsistent with his obligations as a union
member„, and by expressly threatening Miller with a fine or
expulsion from Respondent should he in the future testify
on behalf of the Company and against a fellow union
member in a similar situation.
There remains the question, whether Respondent's
conduct herein found violative of Section 8(b)(1XA) was
also violative of Section 8(b)(3), as the complaint alleges.
Although the 8(b)(3) allegation, unlike the 8(b)(1)(A)
allegation, presents for me considerable conceptual diffi-
culty, particularly as applied to the facts of this case,9 the
General Counsel has a Board precedent to support his
position. In Cannery Warehouseman, supra, the Board,
adopting' its Administrative Law Judge's Decision without
comment, held that it was violative, not only of Section
8(b)(1)(A), but of 8(b)(3) as well, for a union to charge, try,
and fine an employee-member because he had given
testimony in an arbitration proceeding adverse to the
union's grievance on behalf of a fellow union member. The
Administrative Law Judge in that case supported his
8(bX3) finding on the rationale that union'iliscipline visited
on an employee for testifying in an arbitration proceeding
"destroys the integrity of the contractual arbitration clause,
"[and thereby] in effect, nullifies the clause in violation of
Section 8(d) of the Act." Contrary to Respondent, I do not
believe the cited case is factually distinguishable iii any
effect. See, e.g.; Bennet F. Schaefer, Regional Director v. Highway Truck
Drivers & Helpers, Local 107 [Horn & Hardart Baking Co.], 230 F.2d 7 (C.A.
6, 1956).
8 This is not to suggest, however, that a union may no t discipline an
employee for giving perjured testimony where perjury has been established
by a court of competent jurisdiction.
9 I also have -some difficulty in understanding why an 8(b)(3) Ablation
finding is needed once an 8 (b)(1XA) has been found, as,it would not enlarge
in any significant way the remedial ,order provided for the 8(b)(IXA)
violation finding.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
significant respect from the case at hand. I am constrained,
therefore, to regard the cited decision as controlling
precedent, binding on me. Insurance Agents' International
Union, AFL-CIO (The Prudential Insurance Company of
America) 119 NLRB 768;773 (1957). Accordingly, I find
that Respondent violated Section 2(b)(3), as well as Section
8(b)(1)(A), by its conduct described above.
C. Consideration of the Complaint's Allegations
Relating to Assaults and Threats of Assault
-Left for consideration are the two counts of alleged
8(b)(1)(A) and 8(bX3) conduct that were added by
amendment to the complaint. One involves an alleged
assault or threat of assault on Miller by William Salmon on
July 26, 1974; the other an alleged assault or threat of
assault on Miller by Salmon and Clayton jointly on
September 17, 1974.10 The complaint alleges that Salmon
and Clayton, as agents of Respondent, engaged in such
conduct because Miller had testified on behalf of the
Company against a member of Respondent in the
arbitration proceeding referred to above.
1. The July 26 incident
Concerning this incident, which occurred 2 days after
Miller had testified on behalf of the Company and on the
same day that Clayton filed his internal union charge,
Miller testified as follows: On July 26, Miller, returning
from a road trip to Jersey City, stopped for lunch at a
restaurant in Linden, New Jersey. Salmon was in the
restaurant at the time. Salmon had attended the arbitration
hearing on the Clayton grievance and had testified as a
witness for Clayton. Salmon told Miller at the restaurant
that he should not have testified against Clayton, leading
to an argument between them on that subject in the course
of which each called the other a "few names." Later that
day, when Miller arrived at the Company's terminal in
Baltimore, he found Salmon waiting for him with a brick in
his hand. Declaring that Miller should not have testified
against Clayton, Salmon raised the brick over Miller's head
and threatened to "bust [Miller's I brains out," while at the
same time "shoving" Miller backwards. Miller managed to
ward off Salmon by getting to his car and driving away.
Salmon dropped the brick to the ground after Miller got in
his car.
Salmon admitted threatening Miller with a brick, but his
version of what led to this episode turns Miller's testimony
around. According to his version, he and another company
truckdriver, John Antonelli, were having lunch at the
Linden restaurant, when Miller entered the restaurant in
an apparent drunken condition and initiated an argument
with him, by upbraiding him for having testified as a
witness for Clayton. During the argument that followed,
further according to Salmon, Miller, not only called him
names, but also threatened to inflict physical violence on
him by placing his hand in his pocket for the purpose,
10 It will be recalled that Salmon replaced Clayton as Respondent's
steward for the Company's drivers on May 10, 1974. Clayton resumed the
steward's post on August 26, 1974, when he was reinstated by the Company
as an employee pursuant to the arbitrator's award.
11 Antonelly a witness for Respondent , corroborated Salmon 's testimony
as to what occurred at Linden.
Salmon believed, of drawing a knife.11 At Baltimore later
that day-still according to Salmon-Miller arrived at the
terminal just as Salmon was leaving to go to his car, and
again begin to berate Salmon, calling him names, and
acting as if he were about to assault him. Salmon testified
that he shoved Miller back, picked up a brick, and
threatened to strike Miller with it only to protect himself
from an imminent attack by Miller.
Miller impressed me generally as a more credible witness
than either Salmon or Antonelli. Much of the testimony of
these witnesses for Respondent-for example, their testi-
mony indicating that Miller came off the road in an
intoxicated condition-seemed to me to have been
deliberately improvised for the purpose of blackening
Miller's character.12 In addition, it appears to me highly
improbable that Miller, who is much older than Salmon
and apparently no match for him in strength, would have
physically threatened Salmon, and thereby have invited a
fight with him, as Salmon would have it believed. I credit
Miller's testimony, and find that Salmon engaged in the
assault and threat of assault attributed to him by Miller. I
further find that Salmon was motivated, at least in
substantial part, to engage in that conduct because Miller
had testified against Clayton at the arbitration proceeding.
There remains the question of whether responsibility for
Miller's conduct is to be imputed to Respondent. Under
applicable Board principles, I am satisfied that it must be.
As Respondent's steward for the company drivers, Salmon
was the Respondent's representative through whom its
policies were channeled to the drivers. His assault on
Miller was clearly union-related, as it was in reprisal for
Miller's having given testimony adverse to Respondent's
position in the arbitration of the Clayton grievance. As
appears from the findings earlier made, Respondent's
officials at the highest level, who fashioned Respondent's
official policies, considered it a breach of Respondent's
"code of ethics," and of its membership obligations as well,
for a member of Respondent to support the position of an
employer and oppose that of a fellow union member whom
Respondent was representing in a grievance-arbitration
proceeding. An objective of that policy was to enhance
Respondent's ability to win grievances. Salmon's action
against Miller served that same union policy and was in
furtherance of that same union objective. The fact that
authority to engage in such action was not included in the
definition of a steward's duties, as contained in Respon-
dent's bylaws and in its contract with the Company, is not
controlling on the question of Respondent's responsibility.
It has long been settled that, where a steward, or other
union representative, acts in furtherance of his union's
interests and his action in question is within the "general
area" in which he is empowered to represent his union, the
union is chargeable with his conduct-and this though the
12 Robert Constantine, the Company 's president , credibly testified that
following an operation which Miller had several years ago in which 80
percent of his stomach had been removed, he had never heard of Miller
taking a drink.
FREIGHT DRIVERS AND HELPERS LOC. UN. NO. 557 1123
union did not specifically authorize the action in question
or indeed may specifically have forbidden it.13 In this case,
Salmon's action, I fmd, was related to the presentation of
grievances, and thus was within the "general area" in
which he was empowered to act. In these circumstances,
and on the strength of Board precedent, I find that
Respondent is responsible for the conduct of Salmon, as its
agent, in assaulting and threatening to assault Miller
because he had testified on behalf of the Company in the
arbitration proceeding. See Edward Kraemer & Sons, Inc.,
203 NLRB 739 (1973); Carpenters Local 55 (Grauman Co.),
100 NILRB 753 (1952).14
Accordingly, I fmd that Respondent violated Section
8(b)(1)(A) of the Act by reason of Salmon's assault on
Miller.15
2. The September 17 incident
Miller's account of this incident is as follows: Early in
the evening of September 17, 1974, as Miller was driving a
company truck north on Interstate 95, two other company
trucks came along. One of them "short-cut" in front of
Miller, while the other pulled up to his side in the lane to
the left. Then the driver in front of him applied his brakes,
forcing Miller to go on the shoulder of the road to avoid a
collision. Miller did not know at that time who was driving
the two other company trucks, but at his next stop phoned
Constantine, the Company's president, to complain of
what had occurred, and ascertained from him that the two
other trucks were being driven by Clayton and Salmon.
Later that evening, further up the road, there was a precise
repetition of the earlier occurrence, and again Miller had to
hit the shoulder of the road. This time Miller was able to
observe that the truck in front of him was being driven by
Salmon, and the truck to his left by Clayton. Miller did not
report the second incident to Constantine.
Constantine, a witness for the General Counsel corrobo-
rated Miller's testimony concerning the phone call Miller
made to him that evening. He never mentioned the matter
to Clayton or Salmon, he explained, because Miller told
him the next day that he had later met Clayton and Salmon
up the road; that they were now "buddy-buddies"; and
that Clayton and Salmon had only been "kidding" him.
Salmon and Clayton in their testimony admitted encoun-
tering Miller on the road that evening, but denied that any
incident occurred such as Miller testified to. Their account
of their contacts with Miller that evening, though scarcely
revealing a "buddy-buddy" relationship, was entirely
different from Miller's. I shall not detail their testimony or
resolve the conflict that appears between their testimony
and Miller's. For even accepting Miller's account, I am not
13 See International Longshoremen 's and Warehousemen's Union, GI O, et
al. (Sunset Line and Twine Company), 79 NLRB 1487, 1509 (1948); United
Brotherhood of Carpenters, 166 NLRB 532, 539 (1967); N.L.R.B. v. ILWU,
283 F.2d 558, 563 (CA. 9, 1960).
L4 The fact that Salmon's conduct may also have been influenced in part
by his argument with Miller earlier that day does not affect my finding. See
Edward Kruemer & Sons, supra. Nor does it affect my finding that Salmon's
conduct may also have been influenced by his personal antipathy toward
Miller for having testified against a fellow union member. Where, as here,
an individual occupying the status of a union agent and acting within the
scope of his apparent authority as such engages in union-related conduct
that is violative of employee statutory rights, the fact that his conduct may
have been personally motivated cannot excuse the union from responsibility
satisfied that enough has been shown to support an
inference that Clayton and Salmon engaged in the conduct
attributed to them by Miller because of Miller's testimony
at the arbitration hearing some 8 weeks earlier, and
especially so since Miller seems to have been satisfied, as
evidenced by his remark to Constantine the following day,
that what was done was done in jest. Accordingly, I shall
recommend dismissal of this allegation of the complaint.
CONCLUSIONS OF LAW
1. By trying Miller at a hearing before its executive
board for an asserted violation of his obligations as a
member of Respondent , by threatening Miller with union
disciplinary action, and by assaulting and threatening to
assault Miller-all because he had appeared as a witness
for the Company and had given testimony adverse to
Respondent's grievance on behalf of Ralph Clayton, a
member of Respondent, and also by threatening Miller
with a fine and/or expulsion from Respondent should he in
the future testify on behalf of the Company against a
member of Respondent at an arbitration hearing involving
a grievance of a fellow union member , Respondent has
engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) and 8(b)(3) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that Respondent be
ordered to cease and desist therefrom, and from any like or
related unfair labor practices, and that it take certain
affirmative action designed to effectuate the policies 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:
ORDER 16
Respondent Freight Drivers and Helpers Local Union
No. 557, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Baltimore, Maryland, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Restraining and coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act, by trying
for it. In such a situation, the individual 's status as an individual is not
separable from his status as a union agent The coercive and restraining
impact of his conduct on employees is the same regardless of his subjective
motivation.
15 I also find this conduct violative of Sec. 8(bX3), not separately, but
only in conjunction with Respondent 's other conduct which has earlier in
this Decision been found violative of that section.
16 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.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee-members in internal union disciplinary proceed-
ings before its executive board or any other tribunal of
Respondent; threatening employee-members with fine,
expulsion from Respondent, or other disciplinary action,
and/or assaulting or threatening to assault employee-
members, where any of such conduct is engaged in by
Respondent because they gave testimony adverse to
Respondent's position in arbitration proceedings under a
collective-bargaining agreement, and thereby also impair-
ing the integrity of arbitration procedures under a
collective-bargaining agreement.
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights guaranteed by
Section 7 of the Act, or refusing to bargain with an
employer in violation of Section 8(d) and 8(b)(3) of the
Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Post in Respondent's business offices and meeting
halls copies of the attached notice marked "Appendix." 17
Copies of such notice on forms provided by the Regional
Director for Region 5, after being signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 days thereafter, in conspicuous places,
including all places in Respondent's business offices and
meeting halls where notices to its members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain and coerce employees in the
exercise of their rights, guaranteed by Section 7 of the
National Labor Relations Act, by trying any of our
employee-members in internal union disciplinary pro-
ceedings before our executive board or any other
tribunal of our Union; threatening any of our employ-
ee-members with fine by or expulsion from our labor
organization, or with any other disciplinary action;
and/or assaulting or threatening to assault any of our
employee-members for giving testimony adverse to our
position in grievance-arbitration proceedings under a
collective-bargaining agreement.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of rights guaranteed
by Section 7 of the Act, or impair the integrity of the
arbitration procedures of the collective-bargaining
agreement.
FREIGHT DRIVERS AND
HELPERS LOCAL UNION
No. 557, AFFILIATED WITH
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERIC4