Lee Way Motor Frieght, Inc.Download PDFNational Labor Relations Board - Board DecisionsMay 20, 1977229 N.L.R.B. 832 (N.L.R.B. 1977) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Teamsters, General Drivers, Chauffeurs and Helpers Local Union No. 886 (Lee Way Motor Freight, Inc.) and Donald J. Feeney. Case 16-CB-I 110 May 20, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On December 1, 1976, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in support of the Administrative Law Judge's Decision. 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, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. In this proceeding, the Respondent, International Brotherhood of Teamsters, General Drivers, Chauf- fuers and Helpers Local Union No. 886, is alleged to have violated Section 8(b)(1)(A) of the Act through certain statements of one of its stewards, Richard Siers. The Administrative Law Judge found that Siers was not acting in his capacity as a steward when he made the statements General Counsel alleges as violations, and accordingly recommended dismissal of the complaint. We disagree with the Administra- tive Law Judge's conclusions for the reasons set forth below. The Employer involved here, Lee Way Motor Freight, Inc., an interstate motor carrier, employs approximately 1,200 over-the-road truckdrivers. Re- spondent represents these truckdrivers, utilizing approximately seven stewards, with other stewards for dockhands, warehousemen, and other employees. In December 1975, an intraunion election was held among Respondent's members. Employees Jack Farrell and Donald Feeney supported Jack Boat- man, a fellow union member, who ran against the incumbent, B. H. Pannel, for presidency of Respon- dent. Pannel won the election. Thereafter, Farrell filed protests of the election with various authorities, including Respondent's International and the U.S. Department of Labor, and Farrell and Feeney also circulated petitions to Respondent's members re- questing an investigation into alleged irregularities in the election. On February 2 or 3, 1976, Union Steward Siers spoke with Farrell's wife. During the approximately l-l1/2-hour conversation, Siers asked Mrs. Farrell, "What's Jack trying to prove . . . You know if Jack goes through with this thing he's going to get fired." During a second conversation alleged to be violative of the Act, Siers encountered Feeney at a truckstop in Brazil, Indiana. After some discussion, Siers said, "Feeney, I'm telling you right now you had better get out of this election protest. You're going to fool around and throw this [Union] into a receivership. If you should get fired there will be no one [to] back you." The General Counsel alleges Respondent violated the Act through these remarks of Siers. As noted, however, the Administrative Law Judge found that Siers was not acting in his capacity as a union steward when he made the remarks and, accordingly, he found the remarks were not imput- able to Respondent. In finding Respondent was not so chargeable, the Administrative Law Judge con- cluded that Respondent's bylaws and the parties' collective-bargaining agreement, in which the duties of a steward are spelled out, nowhere manifested to third parties a delegation of authority to stewards in the areas in which Siers chose to act. We note, however, that Section 2(13) of the Act provides that: In determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling. Rather, responsibility attaches if, applying the "ordinary law of agency," it is made to appear the union agent was acting in his capacity as such. Local 760, International Brotherhood of Electrical Workers, A.F. of L. (Roane-Anderson Company), 82 NLRB 696, 712 (1949). And, as the Board has indicated in International Longshoremen's and Warehousemen's Union, C...0., Local 6, et al. (Sunset Line and Twine Company): A principal may be responsible for the act of his agent within the scope of the agent's general authority, or the "scope of his employment" if the agent is a servant, even though the principal has not specifically forbidden the act in question. It is enough if the principal actually empowered the 229 NLRB No. 132 832 TEAMSTERS, LOCAL UNION NO. 886 agent to represent him in the general area within which the agent acted.' As the Second Circuit in N. L.R. B. v. Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO [New York Telephone Company],2 noted, "[c]ommon law rules of agency govern; authority may be implied or apparent, as well as express." In the instant case, we note that Respondent's bylaws and the parties' contract give stewards, inter alia, the responsibility and power to investigate and present grievances to management. Further, the bylaws also give stewards the power to transmit messages and information originating from and authorized by Respondent. 3 While the record indi- cates that stewards cannot refuse a grievance, they are able to express their opinion on its merits. On the basis of all the foregoing, we conclude that Siers was acting within the scope of his authority when he made the threats to Mrs. Farrell and Feeney. As noted above, it is clear that Siers' express authority was that of an agent of Respondent to receive, process, investigate, and insure employer compliance on employee grievances concerning wages, hours, and working conditions and to trans- mit messages from Respondent to its members. Although it is clear from the record that Respon- dent's stewards are not empowered to refuse to accept a grievance, this policy is not reflected in the contract or Respondent's bylaws. In addition, there is no evidence in the record which reflects that individual members of Respondent knew or should have known that this was the case. Accordingly, rank-and-file members of Respondent, when faced with statements of Respondent's stewards that the Union would get them fired and/or not represent them, would believe these statements or threats to have meaning as they were coming from an agent whose basic responsibility was that of administering the grievance machinery on behalf of the Union.4 The threats of Siers were therefore in the area of his apparent authority as steward and he, by virtue of his stewardship, was apparently capable of effectuating them. 5 In addition, he had access to information of both the Union's and Employer's intentions from the Union's hierarchy (or the Employer) by virtue of his 79NLRB 1487, 1509(1948). 2 467 F.2d 1158 (1972). 3 This latter duty is limited by the admonition that such messages and information a. have been reduced to writing, or b. if not reduced to writing, are of a routine nature and do not involve work stoppages, slow-downs, refusal to handle goods, or any other interference with the Employer's business. 4 It is argued that the fact that Siers was a friend of Farrell precludes a finding that his statements were coercive. While Siers may have intended his statements to be "friendly," that is no defense in the circumstance of this privileged position, and he was in a position, by virtue of being able to express his view of the merits of a grievance, to affect the action of Respondent concerning it. Accordingly, we find Respondent violated Section 8(b)(1)(A) of the Act through Siers' remarks.6 THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall recommend that it cease and desist therefrom and take such affirmative action necessary to effectuate the purpos- es of the Act. CONCLUSIONS OF LAW 1. International Brotherhood of Teamsters, Gen- eral Drivers, Chauffeurs and Helpers Local Union No. 886 is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 2. By threatening to cause the discharge of an employee if he persisted in protesting Respondent's intraunion election, and by threatening an employee that Respondent would not represent him should he be fired if he did not refrain from pursuing protests to Respondent's intraunion election, Respondent has violated Section 8(b)(IXA) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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 hereby orders that the Respondent, International Brotherhood of Teamsters, General Drivers, Chauffeurs and Helpers Local Union No. 886, Oklahoma City, Oklahoma, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Threatening to cause the discharge of employ- ees if they persist in protesting Respondent's intra- union election. case to the coercive nature of the statements. See Dixisteel Buildings, Inc., 186 NLRB 393, 402 (1970); N.LR.B. v. Marval Poultry Company, Inc., 292 F.2d 454 (C.A. 4, 1961). s The Board has noted in other instances that "lal steward is the first union representative the members look to, and the man from whom they take their cues insofar as union policy is concerned." United Brotherhood of Carpenters & Joiners of America, Local Union No. 2067, AFL-CIO. et al. (Batterman Construction, Inc.). 166 NLRB 532, 540 (1967); Glaziers & Glassworkers Local No. 513 (Linclay Corporation of America), 191 NLRB 461,465 fn. 10(1971). s Cf. Local 761. International Union of Electrical, Radio and Machine Workers, AFL CIO (General Electric Company), 126 NLRB 123. 125 (1960). 833 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Threatening employees that Respondent would not represent them if they are fired unless they refrain from protesting Respondent's intraunion election. (c) In any like or related manner restraining or coercing employees of the Employer, its successors, or assigns, in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at all its offices and union halls copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Promptly after receipt of unsigned copies of said notice from the Regional Director, return to him a sufficient number of signed copies for posting by Lee Way Motor Freight, Inc., if the latter is willing, at all places where notices to employees are custom- arily posted. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 7 In the event that this 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 threaten to cause your discharge of threaten you with a refusal to represent you because you protest against our internal union election. WE WILL NOT restrain or coerce you in any like or related manner in the exercise of your rights guaranteed in Section 7 of the National Labor Relations Act. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, GENERAL DRIVERS, CHAUFFEURS AND HELPERS LOCAL UNION No. 886 DECISION STATEMENT OF THE CASE HENRY L. JALETrE, Administrative Law Judge: This proceeding involves allegations that a union steward threatened employees with discharge if they continued in their efforts to overturn an intraunion election of officers and that Respondent thereby violated Section 8(bXIXA) of the Act. The proceeding was initiated by a charge filed by Donald J. Feeney, an individual, on March 23, 1976.1 The charge was amended on April 23, and complaint issued on May 11. On July 28, hearing was held in Oklahoma City, Oklahoma. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs of the parties, I make the following: FrNDINGS OF FACT A. The Facts Lee Way Motor Freight, Inc., is an interstate motor common carrier with a facility at Oklahoma City, Oklaho- ma. 2 At the times material herein, Lee Way employed about 1,200 over-the-road truckdrivers who were represent- ed by Respondent. Lee Way and Respondent were parties to the National Master Freight Agreement and Southern Conference Area. Donald Feeney and Jack Farrell are members of Respondent and employed by Lee Way as over-the-road truckdrivers on the East Wheel (that is, runs east of Oklahoma City). Richard Siers was the union steward on the East Wheel. In the period between December I and December 6, 1975, Respondent had an election of officers. Feeney and Farrell supported one Jack Boatman for president. The incumbent was B. H. Pannel and he won. Thereafter, Farrell filed a protest of the election through various organizational units of the Teamsters Union to the International, alleging several irregularities in the conduct of the election. On March 15, no decision having been rendered on his protest, Farrell filed a complaint with the U. S. Department of Labor pursuant to Section 402(a) of the Labor-Management Reporting and Disclosure Act of 1959. In addition to filing a protest, and while the matter was pending, Farrell, aided by Feeney and others, circulated petitions among the members of Respondent requesting an investigation into election irregularities. Feeney, in addi- tion, sold raffle tickets and sponsored an affair at his wife's bar to raise money for attorney fees in connection with the protest. I Unless otherwise indicated, all dates are 1976. 2 Jurisdiction is not in issue. Lee Way meets the Board's standard for the assertion ofjurisdiction over common carriers. 834 TEAMSTERS, LOCAL UNION NO. 886 Farrell and his wife had met together socially with Siers and his wife during their employment together and, on February 2 or 3, Siers called Farrell's home and spoke to Mrs. Farrell. According to her, Siers asked her what Jack was trying to prove. She said she did not know what he meant and Siers said "if Jack goes through with this thing he's going to get fired." On March 6, Feeney encountered Siers at a truck stop in Indiana and they had a conversation in which, according to Feeney, Siers suggested Feeney get out of the protest action stating "You're going to fool around and your're going to get yourself in trouble hanging around with that Farrell bunch," and "You're going to fool around and throw this [Union ] into a receivership," and "If you should get fired there will be no one [to] back you." B. Analysis and Conclusions General Counsel contends that the remarks of Siers described above constituted threats violative of Section 8(b)(1)(A) of the Act. Respondent denies any violation of the Act, asserting that Siers did not make the remarks attributed to him; that, if made, the remarks described were too vague and ambiguous to be coercive; that they were made out of friendship and directed at the interests of the employees, or during heated exchange and banter; and that, in any event, Respondent is not liable for Siers' remarks. I see no need to discuss each of these defenses, because while I credit Mrs. Farrell's and Feeney's versions of their conversations with Siers, I conclude that Respondent is not chargeable with Siers' threatening statements. In crediting Mrs. Farrell and Feeney, I rely on the fact that both appeared to me to be candid and, although both could be said to be interested witnesses in the sense that both (Mrs. Farrell indirectly so) are opposed to the incumbent president of Respondent, I cannot believe that such interest would be so compelling as to mislead them into giving false testimony for the sake of a cease-and-desist order and a notice-posting requirement. In asserting that Respondent is liable for Siers' remarks, General Counsel adverts to Section 2(13) of the Act,3 and, while conceding, as he must, that there is no evidence that Respondent authorized Siers to make the remarks in question, he asserts that Siers had apparent authority to do so. "[A]pparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him." Restatement (Second), Agency §27 (1958). "Apparent authority is created by the same method as that which creates authority, except that the manifestation of the principal is to the third person rather than to the agent. For apparent authority there is the basic requirement that the principal be responsible for the information which comes to the mind of the third person, similar to the requirement for the creation of authority that the principal be responsible for the information which 3 Sec. 2(13) provides: In determining whether any person is acting as an "agent" of comes to the agent. Thus, either the principal must intend to cause the third person to believe that the agent is authorized to act for him, or he should realize that his conduct is likely to create such belief." Restatement (Second), Agency §27, comment a (1958). Applying these principles to the present case, one must ask by what writings or conduct did Respondent manifest to third parties that Siers was authorized to act in the area in which he undertook to act. General Counsel points to no conduct other than the fact that Siers was a steward, and the only writing he relies on is that which sets forth the duties of a steward. These duties are spelled out in Respondent's bylaws and repeated in the collective-bar- gaining agreement and, in brief, consist of nothing more that the duty to investigate and process grievances. Nothing in the delegation of authority to stewards in those areas manifests to third parties a delegation of authority to act in the area in which Siers chose to act. In effect, General Counsel is arguing that Siers had real authority to act as he did, that such conduct was within the general area in which stewards are authorized to act. I do not agree. Stewards are frequently limited or specific agents as contrasted, for example, with business agents. In this case, the bylaws of Respondent and the collective- bargaining agreement clearly delineate the duties of stewards, and members of Respondent and employees of Lee Way were on notice of the extent of the stewards' duties and authority. In my judgment, such duties did not confer authority on Siers to act as he did. In truth, it is evident that Siers was not acting in his capacity as steward when he spoke to Mrs. Farrell and to Feeney. The conversation which led to the remarks about Farrell's possible loss of job were made in a conversation attributable to a social history between the Farrells and Siers rather than a steward-member relationship. The Feeney-Siers conversation arose out of a chance encounter when Siers, like Feeney, was engaged in his principal function, that of truckdriver. Finally, General Counsel asserts that Respondent may be held liable for Siers' threats by reason of its failure to disavow them. I find no merit to the assertion. Siers denied making the threats alleged herein and presumably his denials reflected what he told Respondent. Ratification may not be inferred from a failure to disavow in such a circumstance. In light of the foregoing circumstances, I conclude that Respondent Union is not liable for the statements of Siers and I shall recommend dismissal of the complaint. CONCLUSIONS OF LAW I. Lee Way Motor Freight, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, General Drivers, Chauffeurs and Helpers Local Union No. 886 is a labor organization within the meaning of Section 2(5) of the Act. another person so as to make such other person responsible for his acts. the question of whether the specific acts performed were actually authonzed or subsequently ratified shall not be controlling. 835 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Respondent is not liable for the statements of [Recommended Order for dismissal omitted from publi- Richard Siers and, accordingly, did not violate Section cation.] 8(b)(1XA) of the Act as alleged in the complaint. Copy with citationCopy as parenthetical citation